UNITED STATES, PETITIONER v. JOHN O. IRVINE and FIRST TRUST NATIONAL ASSOCIATION
on writ of certiorari to the united states court
of appeals for the eighth circuit
[April 20, 1994]
Justice Scalia , concurring in part and concurring in
The justification for the "reasonable time" limitation
must, as always, be a textual one. It consists, in my
view, of the fact that the failure to make a reasonably
prompt disclaimer of a known bequest is an implicit
acceptance. Qui tacet, consentire videtur. Thus, a laterdisclaimer, which causes the property to go to someone
else by operation of law, is effectively a transfer to that
someone else. (The implication from nondisclaimer is
much weaker when the interest is a contingent one, but
Jewett v. Commissioner, 455 U.S. 305 (1982), resolved
that issue--perhaps incorrectly.) While state disclaimer
laws have chosen to override the reasonable implication
of nondisclaimer, the Treasury Department regulations
correctly (or at least permissibly) conclude that the
federal Gift Tax does not.