Dan's FAQ Improveable?

[LPC]

Montello v Utah, 221 US 452, indicates "including" is limiting

Wrong. Supreme Court never said that.

From the Tax Protester FAQ:

The opinion of the Supreme Court included the following:

“[Including] may have the sense of addition, as we have seen, and of ‘also;’ but, we have also seen, ‘may merely specify particularly that which belongs to the genus.’ [Citation omitted.] It is the participle of the word ‘include,’ which means, according to the definition of the Century Dictionary, (1) ‘to confine within something; hold as in an inclosure; inclose; contain.’ (2) ‘To comprise as a part, or as something incident or pertinent; comprehend; take in; as the greater includes the less; . . . the Roman Empire included many nations.’”

Montello Salt Co. v. Utah, 221 U.S. 452, 464-465 (1911).

At first glance, those words look as if they might support the conclusion that a definition using the word “including” might confine or restrict the meaning of a word, but context is everything, and the words of the Supreme Court in Montello Salt can’t be understood without understanding the context of the dispute.

The issue before the court was the amount of land granted to the University of Utah as part of the enabling act that admitted Utah as a state of the United States. The grant was of 110,000 acres “to be selected and located as provided in the foregoing section of this act, and including all saline lands in said state....” The state of Utah took the position that the University was entitled to 110,00 acres and, in addition, all of the saline lands in the state, which had considerable value. The Montello Salt company, which had deeds to various saline lands, took the position that the University of Utah was entitled to only 110,000 acres, some (or all) of which could be saline lands, but was not entitled to more than 110,000 acres. And the Supreme Court agreed with Montello Salt, holding that “the saline lands are to be contained in or comprise a part of the 110,000 acres of land.” (452 U.S. at 465.)

But the saline lands were to be only “a part of” the 110,000 acres. Tax protesters would have you believe that, if “A includes B,” then “B” is the only thing in “A” because everything else is excluded. In the case before the Supreme Court, that would mean that the University of Utah is entitled to nothing but saline lands. But that’s not what the Supreme Court said was the right result.

The holding of the Supreme Court really contradicts what tax protesters want to believe, because if you change “the saline lands” to “government employees” and “110,000 acres of land” to “employees subject to withholding,” you get the conclusion that “government employees are to be contained in or comprise a part of the employees subject to withholding,” which does not exclude any non-government employees from any withholding. The holding of the Supreme Court is therefore perfectly consistent with the meaning of “includes” in I.R.C. section 7701(c) and perfectly inconsistent with what tax protesters believe.

[LPC]

Dan, I knew you could pull another rationalization out of your ... hat. I was kind of hoping you'd fall into this particular trap. Your position amounts to saying that you can import the common meaning only when no other meaning goes before the inclusion, and not otherwise. Winsome, but contains a contradiction. Problem is:

If section 3231(b) later uses the word "includes" to add other individuals to the meaning of "employee," those "otherwise within the meaning" of "employee" are not all *employees* of all *employers,* but only the employees previously defined by section 3231(b).

See, here you include based on the TERM 3231(b) employee.

When nothing went before, then "includes" adds to the normal meaning of the word.

And here you include based on the WORD employee in common usage.

You can't use 7701(c) to mean two different things. Either 3401(c) only includes what is already in the meaning of the TERM 3401(c) employee, or 3231(b) includes everything in the meaning of the WORD employee in common usage.

You can only salvage consistency by invoking your "nothing went before" rule to say that ordinary employees are already in the meaning of the TERM 3401(c) employee. But no law supports your rule by stating that the meaning of the WORD is automatically already in the meaning of the TERM. In fact numerous case law cites say the opposite, as you know. You have imported it by fiat, without basis in law; and you have pretended 7701(c) simultaneously permits both of two different inclusions which cannot coexist.

In short, if 7701(c) expands to what is in the meaning of the WORD, you are required to include ordinary workers in 3231(b) (because your attempt to exclude them was due to the meaning of the TERM 3231(b) employee).

But if 7701(c) expands to what is in the meaning of the TERM, you are not permitted to include ordinary workers in 3401(c) (because your attempt to include them was due to the meaning of the WORD employee in common usage).

The problem with the "word versus term schtick" is that it is incoherent and incomprehensible.

Despite your desperate movements of your semantic walnut shells ("word" and "term"), and can still see the pea, and I see no contradiction or inconsistency in what I have written.

And I'm not even going to bother looking to see if I can find a court opinion on point, because courts can't contradict or refute arguments that are incomprehensible.

[Imalawman]

How about this John, let's look past your fixation on 3401 proper, how about in 26 CFR sec. 31.3401(c)-1(a) the regulations state, “The term employee includes every individual performing services if the relationship between him and the person for whom he performs such services is the legal relationship of employer and employee.” (emphasis added) This reasoning is echoed throughout this regulation. In section (b) the regulation defines the employer/employee relationship. Nowhere in this regulation does it exclude private sector employment from the definition of “employee”. Also, 26 CFR sec. 31.3306(I)(a) states, “Every individual is an employee if the relationship between him and the person for whom he performs services is the legal relationship of employer and employee.” This regulation also goes on to describe the legal relationship of an employer/employee. Again, nowhere is “employee” limited to solely public sector and corporate officer employment.

Moreover, other sections of the Internal Revenue Code clearly demonstrate that congress clearly interprets the word “employee” to include those working in the private sector. In I.R.C. sec. 3121(d) congress included the following definition of “Employee”:
For purposes of this chapter, the term "employee" means—
(1) any officer of a corporation; or
(2) any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee; or
(3) any individual (other than an individual who is an employee under paragraph (1) or (2)) who performs services for remuneration for any person—[exhaustive list of private sector employment]

[grixit]

If you quit an organization, you have no right to complain about the decisions it makes afterward.

[John J. Bulten]

(smiling beatifically)

In the IRC with its 7701(c) convention, which is neither the Black's convention nor the nonlimiting convention, "includes" is neither "means" nor "includes but is not limited to".

JG, as above, I already explained the apparent contradiction you see in my statements. Now if I'd said "includes" in IRC has the ordinary legal meaning, you'd have a point.

I also already explained in another thread that the Sims decision reaches the same result as the Brigham decision ("of like kind and class") when applied to 3401, just by a clunkier route ("the subject matter, the context, the legislative history, and the executive interpretation, i. e., the legislative environment").

Montello v Utah, 221 US 452, indicates "including" is limiting while "and" is expansive.

Dan, as above, I already noted the meaning of both "and" and "including" in Montello. Now if the IRC used the phrase "and including", you'd have a point.

Lawman, last year on this forum I already noted the regulatory language behind definition of "employee" in Chapters 21, 23, and 24. The first paragraph in each states that "employee" has the "legal" definition, i.e., the definition in the code, not necessarily the general definition. The second paragraph in each gives the general definition of "employee". But did you notice that in Chapters 21 and 23 the regs say "Generally such relationship exists when", but in Chapter 24 the language is changed to "Generally the relationship of employer and employee exists when"? They were obviously copying from 21 and 23 when they wrote 24, but they had to consciously change the language at that point for some reason. The most natural reason is, of course, that the legal and general definitions are NOT the same in that chapter.

[Quixote]

Four pages of debate on a red herring. Whatever else you can say about Bulten, he is a talented troll.

[John J. Bulten]

(more smiles)

The problem with the "word versus term schtick" is that it is incoherent and incomprehensible. Despite your desperate movements of your semantic walnut shells ("word" and "term"), and can still see the pea [sic], and I see no contradiction or inconsistency in what I have written.

I appreciate it when, without coaching, you admit your own incomprehension. Aside from the entertainment value it derives (which is why I (now) frequent this forum), you also give me an excuse to keep building my exposition of the law in greater detail.

The word "includes" has the same definition throughout the IRC: "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."

Since definitions explain the same thing in different words, we can infer the different words that can be substituted for "includes": they are basically "is defined as ... which shall not be deemed to exclude other things otherwise within the meaning of the term defined".

We can safely simplify: first, "is defined as" equals "means". Second, something not deemed to be excluded from a definition is thereby within the definition. Third, let's represent the term and the definition by X and Y. So "X includes Y" is the same as "X means Y and other things otherwise within the meaning of X".

Now whenever X is used in its own definition, there are two ways to interpret it. One is to use the dictionary definition ("D") of X. The other is to use the definition itself ("X") but in such a way as to avoid circularity. An example of the first is "X means all X's that are Y's", where the X in the definition is contextually demonstrated to be different from the X being defined, and the definition is (noncircularly) "all D's that are Y's". An example of the second is "X means all Y's, but not any X's which are Z's", where the definition of X is broken into two pieces (general definition, and specific exclusion), and X in the definition is contextually a placeholder equivalent to the X being (partially or fully) defined. This definition is (noncircularly) "all Y's that are not Z's".

(One might wonder why more words are spent in the second case if the simpler definition would suffice; the answer is that often Y and Z are so complex that the first formulation actually becomes easier to read and understand. I have not bothered to demonstrate the extant complex examples where this occurs.)

So, whenever X is used in its own definition, we must decide whether the context indicates the X in the definition is a different concept or the same concept as the X being defined.

Of course, since the original context in our case spoke of the "term defined", we could easily conclude the latter (X in definition is same as X being defined); but for the moment we are bypassing that obvious point. We could also argue as probative that the word "otherwise" automatically breaks the definition into parts and again concludes to the latter case ("otherwise" introduces the hypothetical that the definition could be otherwise than it is, a common legislative device); but I am waiving this point as well (solely for the sake of argument).

We are working with defining "X includes Y" as "X means Y and other things otherwise within the meaning of X". Obviously, if we chose the former option (X in definition is different from X being defined), we would simply revert to "X means Y or D". Then any clause of inclusion would automatically expand to the full dictionary definition D (e.g., the inclusion clauses of 3231(b)), which yields multiple contradictions when applied. This would be a third proof that X in definition is the same as X being defined.

But it is argued that when other things are already specified elsewhere in the meaning of X, they are the "other things" intended. Given a definition "E means A; E includes B" we substitute the definition of "includes" and get "E means A; (or) E means B; (or) E means other things besides B otherwise within the meaning of E". Well, since E includes B, the "other things" might well be just A; and this yields "E means A or B".

However, given another definition "E includes A; E includes B", we would get exactly the same result: "E means A; (or) E means other things besides A otherwise within the meaning of E; (or) E means B; (or) E means other things besides B otherwise within the meaning of E". Applying the previous logic, the "other things" not A are just B, and vice versa, and "E means A or B". (This would be a natural reading of 3401(c), but it rails against the hardened beliefs of some.)

We could, however, read "E includes A; E includes B" as meaning "E includes A and/or B", which then yields "E means A or B; (or) E means other things besides A and B otherwise within the meaning of E". (This would be the same case as if we found "E includes A" alone, with no other definition besides 7701(c).) Now we are left with no guidance as to the "other things" besides "the subject matter, the context, the legislative history, and the executive interpretation, i. e., the legislative environment" (Sims, 359 US 108). That is, we may look at the statutes, the code, the Congressional Record, the regulations, etc., but as for resort to a dictionary, that by omission would only be resorted to where the rest are silent.

We have the regulation in 26 CFR 403.5 which defines the "other things" as those of "same general class" (this regulation also appears in 27 CFR 27.11 and formerly 26 CFR 170.59; I have not rechecked these cites). We have the agreement of the 1st Circuit in Brigham that the "other things" are of "like kind and class" (quoting Neal v Clark, 95 US 704, which gave the canon that general terms should not expand past the "class of things enumerated"). And we have the singular example that no executive interpretation (e.g., regulations, IRS pronouncement) ever finds something within the full definition of an "including" term unless it finds it within one of the explicit clauses, not the implicit "other things" clause, thereby adding nothing to the USSC and regulations cited above.

So there is simply no support for reading "E includes A; E includes B" and interpreting "E means A or B or D". At best, the definition can only be expanded to "E means items in the class of A or B". Which is exactly Pete's position.

[ShadesOfKnight]

The word "includes" has the same definition throughout the IRC: "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."

Since definitions explain the same thing in different words, we can infer the different words that can be substituted for "includes": they are basically "is defined as ... which shall not be deemed to exclude other things otherwise within the meaning of the term defined".

We can safely simplify: first, "is defined as" equals "means". Second, something not deemed to be excluded from a definition is thereby within the definition. Third, let's represent the term and the definition by X and Y. So "X includes Y" is the same as "X means Y and other things otherwise within the meaning of X".

One small nit-pick: The correct phrasing would have been "X means that which has not been deemed to exclude Y," wouldn't it?

[Imalawman]

[drivel]....

So there is simply no support for reading "E includes A; E includes B" and interpreting "E means A or B or D". At best, the definition can only be expanded to "E means items in the class of A or B". Which is exactly Pete's position.

This is standing everything you've just stated on its head. Class, this is what we call a "non sequitur ". But let's not lose sight of a very important occasion. You were right for a whole sentence.

We are working with defining "X includes Y" as "X means Y and other things otherwise within the meaning of X".

You should have just stopped there. But you went on and embarrassed yourself, again.

[jetmark2007]

I don't understand why all the statutory nitpicking. If I were a judge looking at all this "means" and "includes" banter in a pleading, I would not even address all this garbage. The legislative intent is clear and so resort to Black's would be silly. Congress wants to tax everyone, which "includes" Mr. Bulton.

You are hereby ordered to pay for all accessions to wealth for the tax years in question, sanctioned the statutory limit, ordered to undergo psychiatric evaluation immediately, get your GED in your local federal penitentiary, and are enjoined from wearing a tinfoil helmet ever again in my courtroom.

Court is now in recess.

(yes I am incredibly bored and not very funny)

[natty]

The word "includes" has the same definition throughout the IRC: "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."

This is about the only thing that you didn't obfuscate. I don't know how you just make up the nonsense about equating 'includes' with 'means'.

Logic says the formula for 7701(c) is:

If the term X = A, and A includes B,
then X = A + B.

This is so because A is expanded by B but the meaning of A is not excluded. The only question remaining is what is the meaning of A? The answer is that the statute itself will give the meaning of A. If it doesn't, then the ordinary dictionary meaning is used. Context has nothing to do with it.

Bulten's obfuscation seems to say:

If the term X = A, and A includes B, and C is like B,
then X = B + C.

Which is totally illogical because X can not be A and not A at the same time.

[jg]

Your inability to discern the A or not A state of X in the poison filled box does not mean that X is both A and not A; but only means that you do not know and can not know until you view X again what the state was at that time. It is what it is; whether or not you know it. There was no evidence X is both A and not A, eh?
Perception (or the inability to perceive) is not reality.

[John J. Bulten]

Logic says the formula for 7701(c) is:

If the term X = A, and A includes B,
then X = A + B ....

Bulten's obfuscation seems to say:

If the term X = A, and A includes B, and C is like B,
then X = B + C.

Natty, which law corresponds to the proposition "the term X = A"?

[natty]

Logic says the formula for 7701(c) is:

If the term X = A, and A includes B,
then X = A + B ....

Bulten's obfuscation seems to say:

If the term X = A, and A includes B, and C is like B,
then X = B + C.

Natty, which law corresponds to the proposition "the term X = A"?

If by "law" you mean code section, then the answer is any code section in Title 26 that uses 'includes' and 'including' in a definition. It is the formula for 7701(c).

[LPC]

Montello v Utah, 221 US 452, indicates "including" is limiting while "and" is expansive.

Dan, as above, I already noted the meaning of both "and" and "including" in Montello.

And, as I have already noted above, you are wrong.

[LPC]

The problem with the "word versus term schtick" is that it is incoherent and incomprehensible. Despite your desperate movements of your semantic walnut shells ("word" and "term"), and can still see the pea [sic], and I see no contradiction or inconsistency in what I have written.

I appreciate it when, without coaching, you admit your own incomprehension. Aside from the entertainment value it derives (which is why I (now) frequent this forum), you also give me an excuse to keep building my exposition of the law in greater detail.

The word "includes" has the same definition throughout the IRC: "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."

Since definitions explain the same thing in different words, we can infer the different words that can be substituted for "includes": they are basically "is defined as ... which shall not be deemed to exclude other things otherwise within the meaning of the term defined".

We can safely simplify: first, "is defined as" equals "means". Second, something not deemed to be excluded from a definition is thereby within the definition. Third, let's represent the term and the definition by X and Y. So "X includes Y" is the same as "X means Y and other things otherwise within the meaning of X".

Now whenever X is used in its own definition, there are two ways to interpret it. One is to use the dictionary definition ("D") of X. The other is to use the definition itself ("X") but in such a way as to avoid circularity. An example of the first is "X means all X's that are Y's", where the X in the definition is contextually demonstrated to be different from the X being defined, and the definition is (noncircularly) "all D's that are Y's". An example of the second is "X means all Y's, but not any X's which are Z's", where the definition of X is broken into two pieces (general definition, and specific exclusion), and X in the definition is contextually a placeholder equivalent to the X being (partially or fully) defined. This definition is (noncircularly) "all Y's that are not Z's".

(One might wonder why more words are spent in the second case if the simpler definition would suffice; the answer is that often Y and Z are so complex that the first formulation actually becomes easier to read and understand. I have not bothered to demonstrate the extant complex examples where this occurs.)

So, whenever X is used in its own definition, we must decide whether the context indicates the X in the definition is a different concept or the same concept as the X being defined.

Of course, since the original context in our case spoke of the "term defined", we could easily conclude the latter (X in definition is same as X being defined); but for the moment we are bypassing that obvious point. We could also argue as probative that the word "otherwise" automatically breaks the definition into parts and again concludes to the latter case ("otherwise" introduces the hypothetical that the definition could be otherwise than it is, a common legislative device); but I am waiving this point as well (solely for the sake of argument).

We are working with defining "X includes Y" as "X means Y and other things otherwise within the meaning of X". Obviously, if we chose the former option (X in definition is different from X being defined), we would simply revert to "X means Y or D". Then any clause of inclusion would automatically expand to the full dictionary definition D (e.g., the inclusion clauses of 3231(b)), which yields multiple contradictions when applied. This would be a third proof that X in definition is the same as X being defined.

But it is argued that when other things are already specified elsewhere in the meaning of X, they are the "other things" intended. Given a definition "E means A; E includes B" we substitute the definition of "includes" and get "E means A; (or) E means B; (or) E means other things besides B otherwise within the meaning of E". Well, since E includes B, the "other things" might well be just A; and this yields "E means A or B".

However, given another definition "E includes A; E includes B", we would get exactly the same result: "E means A; (or) E means other things besides A otherwise within the meaning of E; (or) E means B; (or) E means other things besides B otherwise within the meaning of E". Applying the previous logic, the "other things" not A are just B, and vice versa, and "E means A or B". (This would be a natural reading of 3401(c), but it rails against the hardened beliefs of some.)

We could, however, read "E includes A; E includes B" as meaning "E includes A and/or B", which then yields "E means A or B; (or) E means other things besides A and B otherwise within the meaning of E". (This would be the same case as if we found "E includes A" alone, with no other definition besides 7701(c).) Now we are left with no guidance as to the "other things" besides "the subject matter, the context, the legislative history, and the executive interpretation, i. e., the legislative environment" (Sims, 359 US 108). That is, we may look at the statutes, the code, the Congressional Record, the regulations, etc., but as for resort to a dictionary, that by omission would only be resorted to where the rest are silent.

We have the regulation in 26 CFR 403.5 which defines the "other things" as those of "same general class" (this regulation also appears in 27 CFR 27.11 and formerly 26 CFR 170.59; I have not rechecked these cites). We have the agreement of the 1st Circuit in Brigham that the "other things" are of "like kind and class" (quoting Neal v Clark, 95 US 704, which gave the canon that general terms should not expand past the "class of things enumerated"). And we have the singular example that no executive interpretation (e.g., regulations, IRS pronouncement) ever finds something within the full definition of an "including" term unless it finds it within one of the explicit clauses, not the implicit "other things" clause, thereby adding nothing to the USSC and regulations cited above.

So there is simply no support for reading "E includes A; E includes B" and interpreting "E means A or B or D". At best, the definition can only be expanded to "E means items in the class of A or B". Which is exactly Pete's position.

What I said is that the "word versus term schtick" is incomprehensible and incoherent. Would you like to address that now? (Assuming that you're finished with whatever it was you were talking about above.)

[John J. Bulten]

Logic says the formula for 7701(c) is:

If the term X = A, and A includes B,
then X = A + B ....

Bulten's obfuscation seems to say:

If the term X = A, and A includes B, and C is like B,
then X = B + C.

Natty, which law corresponds to the proposition "the term X = A"?

If by "law" you mean code section, then the answer is any code section in Title 26 that uses 'includes' and 'including' in a definition. It is the formula for 7701(c).

OK, so if X is "3401(c) employee", what are A and B? And would you please tell me how you derive X = A, and A includes B, directly from the statutes?

Dan, your (and Paul's) feigned ignorance just continues weakening your credit.

[Imalawman]

Dan, your (and Paul's) feigned ignorance just continues weakening your credit.

I'm sure Dan is just crushed. This will probably make him remove the FAQ, his confidence is sure to be shattered.

As far the rest of your gibberish goes, its quite simple where the "A" comes from. NORMAL THINKING!!!!! When the statute says "employee" it means an Employee. Thus A = Employee as commonly defined and as defined numerous places in the IRC. B=officers and gov't workers; Thus, Employee = all relationships private or otherwise which are employee/employer relationships AND officers of corporations and gov't workers. Arguing anything else is just ridiculous and silly.

[natty]

OK, so if X is "3401(c) employee", what are A and B? And would you please tell me how you derive X = A, and A includes B, directly from the statutes?

A = employee (the thing being defined)
B = all the things listed within the 'includes' clause

Section 3401(c) does not give the meaning of "employee" nor can the meaning be found anywhere in Chapter 24, but given 7701(c), no meaning is excluded. Therefore, any person who reasonably fits the meaning of "employee" is not excluded.

[John J. Bulten]

Lawman, your "numerous places in the IRC" apply only for their own chapters or scopes, not for purposes of Chapter 24.

If you were to follow the logic that "When the statute says [term] 'employee' it means a [common-word] Employee" in Chapter 22, it would apply to the clause in 3231(b) that says "The term 'employee' includes an officer of an employer"; and the term "employee" would include all workers, and all workers would be subject to Railroad Retirement. Same for natty's logic that "any person who reasonably fits the meaning of [common-word] 'employee' is not excluded."

There is no law that places ordinary workers within the meaning of 3401(c) "employee". Only fuzzy, easily-deceived, subject-to-correction thinking does that. The statutes, canons of construction, and rules of logic do not. You describe this sloppy, inaccurate thinking as "normal" thinking: well, the IRS counts on such "normal" thinking.

Natty, the same applies. It is not possible to assign variables logically so as to yield the result you want. First, your assignment of A is ambiguous: the thing being defined is "employee for Chapter 24 purposes" (X), not "employee for Webster's purposes" (what you want A to be). But either way your result does not follow.

If A is employee for Chapter 24 purposes, then your conclusion is valid that X = A + B: Employee for Chapter 24 purposes means employee for Chapter 24 purposes and government/corporate workers.

If A is employee for Webster's purposes as you want, then there is no law stating X = A, or A includes B. The law states only that X includes B. As to 7701, what is "not excluded" from X is "others otherwise within the meaning of the term defined (that term being 'employee for Chapter 24 purposes')"; what is not excluded is simply "all other 'employees for Chapter 24 purposes'". So X, once again, includes government/corporate workers and any other "employees for Chapter 24 purposes".

But at no point does the law state that common workers are "others otherwise withing the meaning of" Chapter 24 employees. Those "not excluded" (i.e. those additionally included) are limited to "others otherwise within the meaning". That means that "others NOT otherwise within the meaning" are NOT in the additionally included class.