Is 26 USC 3401(c) "includes" restrictive?

[Non Mens Rea]

Hello,

I am new here, although I have nearly every thread regarding TP assertions about the IRC.
I have also thoroughly studied Daniel Evans' FAQ, as well as Hendrickson's CtC.
Finally, I have read nearly every District and Circuit court decision regarding TP defenses.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Evans complains that "tax protesters often claim that tax laws are written in 'legalese' that does not mean the same as normal, every-day English, but the opposite is true, as many Supreme Court decisions will affirm":

In interpreting the meaning of the words in a revenue Act, we look to the ‘ordinary, everyday senses’ of the words.
— Commissioner v. Soliman, 506 U.S. 168, 174 (1993)

Certainly, . . . unless and until the Act defines a word and thereafter uses it as a "term".
Once so defined, the prior common meaning of a word has been stripped away.
Such is the entire point of code defining a word -- so that it cannot be construed commonly:

As judges, it is our duty to construe legislation as it is written, not as it might be read by a layman, or as it might be understood by someone who has not even read it.
— Meese v. Keene, 481 U.S. 465, 480-481 (1987)

When a statute includes an explicit definition, we must follow that definition, even if it varies from that term's ordinary meaning.
— Stenberg v. Carhart, 530 U.S. 914, 998 (2000)

(Gee, Dan, if the IRC does not rely upon "legalese", then nothing does.)

Now, let's revisit IRC section 3401(c):

. . . the term "employee" includes an officer, employee, or elected official of the United States, a State, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing. The term 'employee' also includes an officer of a corporation.
— IRC section 3401(c)

"Employee" has been a code defined term since the Revenue Act of 1942, Section 465(d).
There is no "employee means _____" anywhere in the IRC.
Thus, the use of "includes" 3401(c) does not amplify any previous "means".
Therein, "includes" is synonomous with a restrictive "means" (see Helvering V. Morgan's).
One may reasonably conclude that the 3401(c) "includes" definition is the sole definition.

If "includes" of 26 USC 3401(c) is merely an amplifying term (as is vigorously asserted by
most on this forum), why has Congress never explicitly declared so since 1942 when "includes" was first used as the code definition of an "employee"?

Congress could have easily clarified 26 USC's rules of construction, as they did in
11 USC 102 and 28 USC 3003:

11 USC 102 - Rules of Construction
In this title -
(3) "includes" and "including" are not limiting.


28 USC 3003 - Rules of Construction
(a) For purposes of this chapter
(1) the terms "includes" and "including" are not limiting.

That Congress sometimes (and sometimes not) includes something in their definitions is evidence of intentionality:

This fact only underscores our duty to refrain from reading a phrase into the statute when
Congress has left it out.
. . . [W]here Congress includes particular language in one section of a statute but omits it in another . . . it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.
— Russello v. United States, 464 U.S. 16, 23 and 78 (1983)

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Evans asserts that no court has or will ever rule for a federally restrictive definition of
IRC 3401(c) "employee". I have to agree with him on that. Yet, I am not persuaded
that the courts have ruled correctly on this matter. Lower and circuit courts are often
wrong, and even occasionally deemed so by SCOTUS. (Look no further than the 2008
decision in D.C. v. Heller, which affirmed an individual right to keep and bear arms -- overturning decades of "collective right" silliness.)

So, given the above evidence for a restrictive interpretation of 3401(c) "includes",
coupled with nearly 70 years of congressional silence on clarifying rules of construction,
I would like to read any civil, reasoned, and issue-constrained replies.

Regards,
Non Mens Rea

[Famspear]

....So, given the above evidence for a restrictive interpretation of 3401(c) "includes",
coupled with nearly 70 years of congressional silence on clarifying rules of construction,
I would like to read any civil, reasoned, and issue-constrained replies.

Welcome to Quatloos!

Since you haven't asked a question, but you are instead saying you would like to read a "reply," here's one.

The above "evidence" is not evidence. It's your argument. Your argument is incorrect. Since you say you have read all the cases, you are claiming in effect that you have already read all the civil, reasoned, and issue-constrained explanations -- and more importantly -- you have read the authoritative answers, and that you disagree with them.

You are incorrect. The court decisions are correct.

The answer is that the terms "includes" and "including" are expansive, not restrictive.

[Cpt Banjo]

If, as you claim, you have read Dan's FAQ and "nearly every District and Circuit court decision regarding TP defenses", you would have read about how Section 7701(c) provides a nonexclusive definition for "includes" as used in Code definitions. Why didn't you even mention this provision in your post? Could it be that you really aren't interested in a civil, reasoned, and issue-constrained discussion?

[notorial dissent]

And yet, contrary to your contentions, if the term "includes" meant anything other than what the courts have continually said it means lo these many years, the Congress could simply rewrite the definition to make it mean what you contend it doesn't. So, to put not too fine a point on it your position, like those of the TP's you are parroting, is a frivolous, in simple terms, without merit, value, or basis in reality, position.

The reason "employee" isn't defined in the statute, is that it means exactly what everyone thinks it means, as well as applying to the additional cases listed after the "includes" in the statute.

Nice try, no cookie, thank you for playing.

[Famspear]

So, given the above evidence for a restrictive interpretation of 3401(c) "includes",
coupled with nearly 70 years of congressional silence on clarifying rules of construction,
I would like to read any civil, reasoned, and issue-constrained replies.

Here's one of the errors you made. Congress has not been "silent" on the "clarifying rules" of construction. Congress specifically provided in the Internal Revenue Code itself, that the terms "includes" and "including" are terms of expansion, not limitation:

The terms “includes” and “including” when used in a definition contained in this title shall not be deemed to exclude other things otherwise within the meaning of the term defined.

--IRC sec. 7701(c).

The error that tax protesters make with respect to the term "employee" is to try to reverse the logic by applying the rule to the definition, rather than to the term being defined. The term being defined is "employee." Saying that "employee" includes such and such does not "strip away" the ordinary meaning of "employee".

For purposes of this chapter, the term “employee” includes an officer, employee, or elected official of the United States, a State, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing. The term “employee” also includes an officer of a corporation.

--IRC 3401(c).

All federal courts which have ruled on the matter have ruled that the terms "includes" and "including" are expansive, not restrictive. For the United States Supreme Court's treatment of "includes" and "including" as used in the Internal Revenue Code, see Sims v. United States, 359 U.S. 108 (1959).

Further, the whole purpose of the tax protesters' argument is to try to "prove" that their ordinary income isn't taxable. Even if the protesters' interpretations of "employee" and "includes" were correct, the income would still be taxable. Section 3401 and related provisions are withholding provisions. The obligation to pay federal income tax on your compensation is not dependent on or governed by those provisions.

PS: In the Sims case, the reference to section 7701(b) and its meaning is a reference to what is now section 7701(c).

[jg]

Hello,

...Certainly, . . . unless and until the Act defines a word and thereafter uses it as a "term".
Once so defined, the prior common meaning of a word has been stripped away.
Such is the entire point of code defining a word -- so that it cannot be construed commonly:

snip

(Gee, Dan, if the IRC does not rely upon "legalese", then nothing does.)

Now, let's revisit IRC section 3401(c):

. . . the term "employee" includes an officer, employee, or elected official of the United States, a State, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing. The term 'employee' also includes an officer of a corporation.
— IRC section 3401(c)

"Employee" has been a code defined term since the Revenue Act of 1942, Section 465(d).
There is no "employee means _____" anywhere in the IRC.
Thus, the use of "includes" 3401(c) does not amplify any previous "means".
Therein, "includes" is synonomous with a restrictive "means" (see Helvering V. Morgan's).
One may reasonably conclude that the 3401(c) "includes" definition is the sole definition.
...

Your conclusion that "includes" is synonomous with a restrictive "means" is not supported. There is not a definition of an employee in section 3401. You said that

There is no "employee means _____" anywhere in the IRC.
Thus, the use of "includes" 3401(c) does not amplify any previous "means".

If Congress wanted to have an employee mean "an officer, employee, or elected official of the United States..." that is what they would have written. They did not define the term; so it does not mean that.
One may not reasonably conclude that the 3401(c) "includes" definition is the sole definition because it is not a definition.

But even if Congress were to define an employee as only an officer or employee of hte United States, as Famspear wrote in the post above, it would not matter since your payments for work are still included in gross income for tax purposes (see IRC section 61).

[Thule]

So, given the above evidence for a restrictive interpretation of 3401(c) "includes",coupled with nearly 70 years of congressional silence on clarifying rules of construction,

Why should Congress need to clarify? The courts have settled the matter. If Congress is unhappy with the result, they had (and still have) the opportunity to pass new legislation. If anything, "congressional silence" means that Congress is satisfied with the current interpretation.

[wserra]

"Employee" has been a code defined term since the Revenue Act of 1942, Section 465(d).
There is no "employee means _____" anywhere in the IRC.

Consecutive sentences: "A defines B. A does not define B."

Bzzzt.

Therein, "includes" is synonomous with a restrictive "means"

I thought you had read all those decisions that say the opposite.

Correct (and bloody obvious) conclusion: 3401(c) does not define "employee". It expands on the well-understood common-law definition. And (as others have already pointed out) it has no effect on an individual's tax obligations in any event.

Just like all those decisions you supposedly read say.

[Judge Roy Bean]

Trollin', trollin', trollin'
Keep them fingers toilin' ...

[Pottapaug1938]

"Employee" has been a code defined term since the Revenue Act of 1942, Section 465(d).
There is no "employee means _____" anywhere in the IRC.

Consecutive sentences: "A defines B. A does not define B."

Bzzzt.

Therein, "includes" is synonomous with a restrictive "means"

I thought you had read all those decisions that say the opposite.

Correct (and bloody obvious) conclusion: 3401(c) does not define "employee". It expands on the well-understood common-law definition. And (as others have already pointed out) it has no effect on an individual's tax obligations in any event.

To elaborate: a lot of people thought that people who work for the federal govermnent could not be classified as "employees" because they do not work for a private business; and they also thought that an officer of a corporation cannot be considered an "employee" because he/she is an employer. This section says that the classes of people described in the section shall be treated the same as any employee of any private business. In other words, my wife, who works for the Registry of Motor Vehicles, is an "employee" within the meaning of this section, and so am I (I work for a financial services company).

Just like all those decisions you supposedly read say.

[fortinbras]

26 USC § 7701(c), on the expansive meaning of "include", has been upheld by the Supreme Court, in such cases as Helvering v. Morgan's Inc. (1934) 293 US 121. The definition for "employee" in the tax code makes a point that the term "includes" people who are not commonly thought of as employees, such as people in management positions, public officials, civil servants, and the like. They're counted by the tax code as employees, too, -- in addition to all the people we already would think of as employees.

[Duke2Earl]

So you would like to read "issue-constrained" replies, huh? The problem is that you have already fallen off track there because you assume there is an issue to discuss. Add to that the hidden ball aspect of the alleged "issue" and you have already proven there is literally nothing to discuss. We might just as well waste all of our time "discussing" whether the sun actually rises in the East because the "definition" of "East" may be challenged.

The hidden ball aspect is that you don't want to discuss the actual "issue." The actual issue is whether citizens and residents of the US are legally required to pay taxes on their wages. The answer to that question is yes... they are... period. You want to hide in the hypertechnical weeds and somehow sneak up on a conclusion that doesn't fly. This is simply another variation of the question and answer game. If you had any integrity whatsoever, you would simply put out your "conclusions" without any insincere desires to "discuss" non-issues in a blatant attempt to mislead and confuse.

Unfortunately for you, the truth is very simple. If you have indeed studied as much as you say you have, you have wasted a large portion of your life in the fruitless pursuit of a magic incantation that will allow you to avoid taxes on your wages. And as way too many have found out before you, the track you are on leads only to pain and ruin. The very best advice I can give you is please wake up before it is too late.

[LPC]

There is no "employee means _____" anywhere in the IRC.
Thus, the use of "includes" 3401(c) does not amplify any previous "means".

There's your biggest mistake, right there.

There's nothing in section 7701(c) that limits the expansive use of "includes" to words that are first expressly defined using the word "means." Section 7701(c) says that the terms “includes” and “including” when used in a definition "shall not be deemed to exclude other things otherwise within the meaning of the term defined." Words can have meanings even if they have not been defined within the IRC using the word "means." Indeed, undefined words must have meanings because not every word in the IRC is defined.

For example, the word "employee" has a well understood meaning at common law, because the liability of an employer for the acts of an employee depended upon first determining whether or not the employee was in fact an employee. This history is expressly recognized by IRC section 3121(d), which states that, for employment tax purposes, "the term 'employee' means— ... (2) any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee...." If there were no "usual common law rules" for determining who was an employee, then section 3121(d)(2) would be meaningless.

So the word "employee" has a meaning even without section 3401(c), and all that section 3401(c) does is expand the usual meaning to add meanings not otherwise within the usual meaning.

Now, your next argument might be that, because section 3121(d) defined "employee" differently from section 3401(c), then the meanings must be different, and that would be wrong also. There are lots of different ways of writing a definition and those different ways can produce similar, even if not always identical, results. The definitions in 3121(d) and 3401(c) might produce different results in some cases, but not in the case of the typical common law employee.

As others have pointed out, your arguments are wrong in other ways as well, and my failure to point out all of your errors should not be construed as an admission that anything you have written is correct.

[VinnyZ]

Here is something else about Mr. Hendrickson that you should also study:

http://www.bop.gov/iloc2/InmateFinderSe ... =&x=81&y=9

[Cathulhu]

Trollin', trollin', trollin'
Keep them fingers toilin' ...

With them tempers boilin'
Denied!

(sung by Clint Eastwood to the tune of Rawhide, for all you youngsters)

[wserra]

(sung by Clint Eastwood to the tune of Rawhide, for all you youngsters)

Frankie Laine, who also sang Blazing Saddles.

Please.

[grixit]

i'm beginning to suspect that Non Compos Mentis is someone we've already discussed here.

[notorial dissent]

Well, I certainly think you got the name right at least.

[Imalawman]

Amazing, we're still having to debate the meaning of the word "includes" - even after the father of the 3401(c) argument is in jail. Since posting such tripe is like fodder for hungry piranha, I have missed the window to reply with anything new.

I would challenge the assertion that you've read "every" case on the subject. That's a pretty bold statement in and of itself. I think one would have to include cases defining employees for classification purposes as well. There are literally thousands of such cases. You don't even see lawyers making such fantastic claims. Stupidity abounds.

[Gregg]

i'm beginning to suspect that Non Compos Mentis is someone we've already discussed here.

My magic 8 ball says it's Harvester. The IP is one of those "you can't see me" diversions that resolves to Dubai.

Whomever it is, they think they're real clever.