Congressional Research Service Report 97-589, Statutory Interpretation: General Principles and Recent Trends - Guide to interpreting statutes
Legal Deception, Propaganda, and Fraud, Form #05.014-exhaustive and authoritative
analysis of the meaning and use of the words "includes" and "including" within law
WORDS
AND PHRASES: "INCLUDE" -detailed analysis of the
word "include" from THE AUTHORITY
Abuse of “INCLUDES” is designed to DECEIVE you into consenting to taxation that you aren’t subject to, SEDM
Black's Law Dictionary, Sixth Edition, p. 763 (1990):
“Include. (Lat. Inclaudere, to shut in. keep within.) To confine within, hold as an inclosure. Take in, attain, shut up, contain, inclose, comprise, comprehend, embrace, involve. Term may, according to context, express an enlargement and have the meaning of and or in addition to, or merely specify a particular thing already included within general words theretofore used. “Including” within statute is interpreted as a word of enlargement or of illustrative application as well as a word of limitation. Premier Products Co. v. Cameron, 240 Or. 123, 400 P.2d 227, 228.”
[Black's Law Dictionary, Sixth Edition, p. 763 (1990)]
Bouvier's Law Dictionary, 1856, Sixth Edition:
“INCLUDE (Lat. in claudere to shut in, keep within). In a legacy of ‘one hundred dollars including money trusted’ at a bank, it was held that the word `including' extended only to a gift of one hundred dollars; 132 Mass. 218...”
“INCLUDING. The words `and including' following a description do not necessarily mean `in addition to,' but may refer to a part of the thing described. 221 U.S. 425.”
[Bouvier's Law Dictionary, 1856, Sixth Edition]
In re Adopt. of M.A. Marianne Tyson, 2024 UT 6 (2024)
At times, the Legislature has granted courts broad discretion by not defining good cause, only to add a definition after it sees how the courts have applied the standard. We noted in State v. Ruiz that, under a prior version of the plea withdrawal statute, judges “had broad discretion to determine the scope of circumstances that constituted ‘good cause’ and warranted withdrawal of a plea.” 2012 UT 29, ¶ 31, 282 P.3d 998. But we also noted that the Legislature had amended the statute so that “judges may now grant a motion to withdraw only when they determine that a defendant’s plea was not knowingly and voluntarily entered.” Id. ¶ 32. ¶21
When a court deals with an undefined good cause standard, it has discretion to look to the facts and arguments presented to decide the question. Although it deals with a rule and not a statute, Reisbeck v. HCA Health Services of Utah, Inc. is instructive. See 2000 UT 48, ¶¶ 5–15, 2 P.3d 447. The appellant in Reisbeck failed to file her notice of appeal within the thirty days that Utah Rule of Appellate Procedure 4(a) requires and sought a discretionary extension from the trial court for “good cause” under Utah Rule of Appellate Procedure 4(e). Id. ¶¶ 5, 7. We refused to “establish any specific criteria for determining good cause” because “the assessment of the justifications offered by a moving party will remain highly fact-intensive, and because any given justification may entail aspects both within and beyond the moving party’s control.” Id. ¶¶ 14–15 (cleaned up). That is, an undefined good cause standard provides courts with discretion to consider the merits of individual cases.
[In re Adopt. of M.A. Marianne Tyson, 2024 UT 6 (2024)]
Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d. 863, 884-85 (9th Cir. 2000)
“Although the Supreme Court has advised that recourse to legislative history is not necessary where a statute's plain meaning is clear, the Court does suggest that we review the legislative history to ensure that there is no clearly contrary congressional intent. See, e.g., Salinas v. United States, 522 U.S. 52, 57-58, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997); Dunn v. Commodity Futures Trading Comm'n, 519 U.S. 465, 471 n. 8, 473-74, 478, 117 S.Ct. 913, 137 L.Ed.2d 93 (1997); Darby v. Cisneros, 509 U.S. 137, 147, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993); John Doe Agency v. John Doe Corp., 493 U.S. 146, 155, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989).”
[Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 884-85 (9th Cir. 2000) ]
U.S. v. Middleton, 231 F.3d. 1207, 1210 (9th Cir. 2000)
“When a statutory term is undefined, we endeavor to give that term its ordinary meaning. Id. We are instructed to avoid, if possible, an interpretation that would produce "an absurd and unjust result which Congress could not have intended." Clinton v. City of New York, 524 U.S. 417, 429, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998).”
[U.S. v. Middleton, 231 F.3d 1207, 1210 (9th Cir. 2000)]
26 U.S.C.§7701(c) INCLUDES AND INCLUDING.
The terms ‘include’ 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.”
Franklin v. Sessions, 291 F.Supp.3d. 705, 714 n.8 (W.D. Pa. 2017)
In a section entitled "Meaning of Terms," the Code of Federal Regulations states:
When used in this part and in forms prescribed under this part, where not otherwise distinctly expressed or manifestly incompatible with the intent thereof, terms shall have the meanings ascribed in this section. Words in the plural form shall include the singular, and vice versa, and words importing the masculine gender shall include the feminine. The terms "includes" and "including" do not exclude other things not enumerated which are in the same general class or are otherwise within the scope thereof. Act. 18 U.S.C. Chapter 44.
[Franklin v. Sessions, 291 F. Supp. 3d 705, 714 n.8 (W.D. Pa. 2017)]
Bingham, Ltd. v. United States, 724 F.2d. 921, 927 (11th Cir. 1984)
The Secretary has delegated its rule-making authority under § 847 to the ATF. In defining ammunition, the ATF has indicated that the term shall include "percussion caps." 27 C.F.R. § 55.11 (1983). Furthermore, the Bureau has provided that "the terms 'includes' and 'including' do not exclude other things not named which are in the same general class or are otherwise within the scope of the term defined." Id.
[Bingham, Ltd. v. United States, 724 F.2d. 921, 927 (11th Cir. 1984)]
Brigham v. U.S., 160 F.3d. 759, 760-61 (1st Cir. 1998)
Plaintiff, accordingly, claims that Mrs. Ham, as the receiver of a one-third portion of Mr. Ham's estate, was not a "beneficiary" within the meaning of § 662. This contention, however, fails. For definition, 26 U.S.C. § 643(c) provides that "the term `beneficiary' includes heir, legatee, devisee." The word "elector" (of a spouse's share) does not appear, but "includes" is not limiting. Rather, "[t]he terms `includes' and `including' . . . shall not be deemed to exclude other things otherwise within the meaning of the term defined." 26 U.S.C. § 7701(c).
In light of this we apply the principle that a list of terms should be construed to include by implication those additional terms of like kind and class as the expressly included terms. Surely the widow has elected to be within the group. In common parlance, is not any person who gratuitously receives estate assets a beneficiary? If there is no will, the widow is an heir, and she receives a portion of the estate as determined by the legislature. If there is a will, she may be a legatee, or she may waive her rights under it and receive a different portion. But, in all cases, on its face, the §§ 661-662 tracing purpose applies precisely.
[Brigham v. U.S., 160 F.3d. 759, 760-61 (1st Cir. 1998)]
Coast Oyster Co. v. Perluss, 218 Cal.App.2d 492 (1963)
"Section 626 sets forth six specifically defined categories of services which are within the agricultural labor exemption. Section 627 provides for two additional categories of services which are within the agricultural labor exemption. In view of this detailed elaboration of included services, we believe that the Legislature did not intend to use the term "includes" as one of enlargement in these sections any more than it did in the Public Utilities Act section involved in the Martinez case.
Furthermore, within section 626 itself, the Legislature has specifically in subdivisions (c), (d) and (e) used the word differently when it wished to make it clear that the word was being used to enlarge and not to limit. Thus, in each of those subdivisions the Legislature used the phrase, "includes, but [218 Cal. App. 2d 502] is not limited to." Similarly, in subdivision (f) of section 626 the terminology "including, but not limited to" is used. And section 628 provides that "the term 'farm' includes, among others. ..." Since the Legislature has four times within section 626, and again in section 628, clearly indicated its intent to use the word "includes" as one of enlargement rather than of limitation, the contention that the Legislature did not intend to restrict or limit the agricultural labor exemption when it adopted sections 626, 627 and 628 should be rejected."
Mittenthal v. Fla. Panthers Hockey Club, Ltd., 472 F. Supp. 3d 1211, 1221-22 (S.D. Fla. 2020)
“And the Court is not free to add words to a statute that do not appear there. See A. SCALIA & B. GARNER , READING LAW : THE INTERPRETATION OF LEGAL TEXTS 182 (2012) ("The familiar ‘easy-to-say-so-if-that-is-what-was-meant’ rule of statutory interpretation has full force here.").”
[Mittenthal v. Fla. Panthers Hockey Club, Ltd., 472 F. Supp. 3d 1211, 1221-22 (S.D. Fla. 2020)]
Aristotle, Metaphysica Book IV
"If. . .a word has an infinite number of meanings, obviously reasoning would be impossible; for not to have one meaning is to have no meaning, and if words have no meaning our reasoning with one another. . .has been annihilated."
[Aristotle, Metaphysica Book IV]
A definition, according to Aristotle, must have two elements...
- The term must belong in a general class (a genus)
- It must be a specific example of that class (species) that is different from other specific examples in that class.
Other terms defined in the Internal Revenue Code which rely on the word "includes":
Term Where defined "employee" 26 U.S.C. §3401(c),
26 C.F.R. §31.3401(c )-1"gross income" 26 U.S.C. §872 "person" 26 U.S.C. §7701(a)(1),
26 U.S.C. §7343,
26 C.F.R. 301.6671-1"State" 26 U.S.C. §7701(a)(10) "trade or business" 26 U.S.C. §7701(a)(26) "United States" 26 U.S.C. §7701(a)(9)
Black's Law Dictionary, Sixth Edition, p. 581:
“Expressio unius est exclusio alterius.A maxim of statutory interpretation meaning that the expression of one thing is the exclusion of another.Burgin v. Forbes, 293 Ky. 456, 169 S.W.2d 321, 325; Newblock v. Bowles, 170 Okl. 487, 40 P.2d 1097, 1100.Mention of one thing implies exclusion of another.When certain persons or things are specified in a law, contract, or will, an intention to exclude all others from its operation may be inferred.Under this maxim, if statute specifies one exception to a general rule or assumes to specify the effects of a certain provision, other exceptions or effects are excluded.”
[Black’s Law Dictionary, Sixth Edition, p. 581]
U.S. Supreme Court examples of the use of the "expressio unius est exclusio alterius rule" cited above:
Tennesee Valley Auth. v. Hill, 437 U.S. 153, 188 (1978)
Passenger Corp. v. Passengers Assoc., 414 U.S. 453, 458 (1974)
Bingler v. Johnson, 394 U.S. 741, 749 (1969)
Evans v. Newton, 382 U.S. 296, 311 (1966)
Nashville Milk Co. v. Carnation Co., 355 U.S. 373, 375 (1958)
Black's Law Dictionary, Sixth Edition, p. 517:
"Ejusdem generis. Of the same kind, class, or nature. In the construction of laws, wills, and other instruments, the "ejusdem generis rule" is, that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. U.S. v. LaBrecque, D.C. N.J., 419 F.Supp. 430, 432. The rule, however, does not necessarily require that the general provision be limited in its scope to the identical things specifically named. Nor does it apply when the context manifests a contrary intention.
Under "ejusdem generis" cannon of statutory construction, where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated. Campbell v. Board of Dental Examiners, 53 Cal.App.3d 283, 125 Cal.Rptr. 694, 696."
[Black's Law Dictionary, Sixth Edition, p. 517:]
Federal Tax Research: Guide to Materials and Techniques, Copyright 1990, Fifth Edition, Gail Levin Richmond, ISBN 1-56662-457-6:
Rules of Statutory Construction for tax laws: "expressio unius, exclusio alterius": if one or more items is specifically listed, omitted items are purposely excluded. See Becker v. United States, 451 U.S. 1306 (1981)
[Federal Tax Research: Guide to Materials and Techniques, Copyright 1990, Fifth Edition, Gail Levin Richmond, ISBN 1-56662-457-6]
Montello Salt Co. v. Utah, 221 U.S. 452 (1911):
"The determining word is, of course the word 'including.' It may have the sense of addition, [221 U.S. 452, 465] as we have seen, and of 'also;' but, we have also seen, 'may merely specify particularly that which belongs to the genus.' Hiller v. United States, 45 C. C. A. 229, 106 Fed. 73, 74. 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.' 'Including,' being a participle, is in the nature of an adjective and is a modifier."
...
"...The court also considered that the word 'including' was used as a word of enlargement, the learned court being of opinion that such was its ordinary sense. With this we cannot concur. It is its exceptional sense, as the dictionaries and cases indicate. We may concede to 'and' the additive power attributed to it. It gives in connection with 'including' a quality to the grant of 110,000 acres which it would not have had,-the quality of selection from the saline lands of the state. And that such quality would not exist unless expressly conferred we do not understand is controverted. Indeed, it cannot be controverted...."
Treasury Decision 3980, Vol. 29, January-December,
1927, pgs. 64 and 65- defines the words includes and including as:
“(1) To comprise, comprehend, or embrace…(2) To enclose within; contain; confine…But granting that the word ‘including’ is a term of enlargement, it is clear that it only performs that office by introducing the specific elements constituting the enlargement.It thus, and thus only, enlarges the otherwise more limited, preceding general language…The word ‘including’ is obviously used in the sense of its synonyms, comprising; comprehending; embracing.”
[Treasury Decision 3980, Vol. 29, January-December, 1927, pgs. 64 and 65]
Definitions-Words and Phrases pages 156-156, Words and Phrases under ‘limitations’.
“Includes is a word of limitation.Where a general term in Statute is followed by the word, ‘including’ the primary import of the specific words following the quoted words is to indicate restriction rather than enlargement.” [Powers ex re. Covon v. Charron R.I., 135 A. 2nd 829, 832 ]
[Definitions-Words and Phrases pages 156-156, Words and Phrases under ‘limitations’]
Lawson v. Suwannee Fruit & Steamship Co., 336 U.S. 198, 201 (1949)
". . .Statutory definitions control the meaning of statutory words, . ."
[Lawson v. Suwannee Fruit & Steamship Co., 336 U.S. 198, 201 (1949)]
Gould v. Gould, 245 U.S. 151, at 153 (1917)
“In the interpretation of statutes levying taxes, it is the established rule not to extend their provisions by implication beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out. In case of doubt they are construed most strongly against the government and in favor of the citizen.”
[Gould v. Gould, 245 U.S. 151, at 153 (1917)]
[NOTE: See also American Net & Twine Co. v. Worthington, 141 U.S. 468, 35 L.ed. 821, 12 Sup. Ct. Rep. 55; United States v. Wigglesworth, 2 Story, 369, Fed. Cas. No. 16,690; Rice v. United States, 4 C. C. A. 104, 10 U. S. App.670, 53 Fed. 910, enziger v. United States, 192 U.S. 38, 55, 24 S. Sup. Ct.189.]
American Surety Co. of New York v. Marotta, 287 U.S. 513 (1933):
"In definitive provisions of statutes and other writings, 'include' is frequently, if not generally, used as a word of extension or enlargement [meaning "in addition to"] rather than as one of limitation or enumeration. Fraser v. Bentel, 161 Cal. 390, 394, 119 P. 509, Ann. Cas. 1913B, 1062; People ex rel. Estate of Woolworth v. S.T. Comm., 200 App.Div. 287, 289, 192 N.Y.S. 772; Matter of Goetz, 71 App.Div. 272, 275, 75 N.Y.S. 750; Calhoun v. Memphis & P.R. Co., Fed. Cas. No. 2,309; Cooper v. Stinson, 5 Minn. 522 (Gil. 416). Subject to the effect properly to be given to context, section 1 (11 USCA 1) prescribes the constructions to be put upon various words and phrases used in the act. Some of the definitive clauses commence with 'shall include,' others with 'shall mean.' The former is used in eighteen instances and the latter in nine instances, and in two both are used. When the section as a whole is regarded, it is evident that these verbs are not used synonymously or loosely, but with discrimination and a purpose to give to each a meaning not attributable to the other. It is obvious that, in some instances at least, 'shall include' is used without implication that any exclusion is intended. Subsections (6) and (7), in each of which both verbs are employed, illustrate the use of 'shall mean' to enumerate and restrict and of 'shall include' to enlarge and extend. Subsection (17) declares 'oath' shall include affirmation, Subsection (19) declares 'persons' shall include corporations, officers, partnerships, and women. Men are not mentioned. In these instances the verb is used to expand, not to restrict. It is plain that 'shall include,' as used in subsection (9) when taken in connection with other parts of the section, cannot reasonably be read to be the equivalent of 'shall mean' or 'shall include only.' [287 U.S. 513, 518] There being nothing to indicate any other purpose, Congress must be deemed to have intended that in section 3a(1) 'creditors' should be given the meaning usually attributed to it when used in the common-law definition of fraudulent conveyances. See Coder v. Arts, 213 U.S. 223, 242 , 29 S.Ct. 436, 16 Ann.Cas. 1008; Lansing Boiler & Engine Works v. Joseph T. Ryerson & Son (C.C.A.) 128 F. 701, 703; Githens v. Shiffler (D.C.) 112 F. 505. Under the common-law rule a creditor having only a contingent claim, such as was that of the petitioner at the time respondent made the transfer in question, is protected against fraudulent conveyance. And petitioner, from the time that it became surety on Mogliani's bond, was entitled as a creditor under the agreement to invoke that rule. Yeend v. Weeks, 104 Ala. 331, 341, 16 So. 165, 53 Am.St.Rep. 50; Whitehouse v. Bolster, 95 Me. 458, 50 A. 240; Mowry v. Reed, 187 Mass. 174, 177, 72 N.E. 936; Stone v. Myers, 9 Minn. 303 (Gil. 287, 294), 86 Am.Dec. 104; Cook v. Johnson, 12 N.J.Eq. 51, 72 Am.Dec. 381; American Surety Co. v. Hattrem, 138 Or. 358, 364, 3 P.(2d) 1109, 6 P.(2d) 1087; U.S. Fidelity & Guaranty Co. v. Centropolis Bank (C.C.A.) 17 F.(2d) 913, 916, 53 A.L.R. 295; Thomson v. Crane (C.C.) 73 F. 327, 331."
[American Surety Co. of New York v. Marotta, 287 U.S. 513 (1933)]
NOTE: When the word "includes" is used as a word of enlargement, meaning "in addition to", the things that are in addition to it must be found in another section of the code somewhere. One may no "presume" what is included because presumption is a sin under Numbers 15:30 as well as a violation of due process which unfairly prejudices constitutional rights. Click here to learn why "presumption" violates due process of law
Words and Phrases, p. 156, under 'limitations'
"Includes is a word of limitation. Where a general term in statute is followed by the word, "including" the primary import of specific words following quoted words is to indicate restriction rather than enlargement." Powers ex rel Dovon v Charron R.I. 135 A. 2nd 829, 832
[Words and Phrases, p. 156, under 'limitations']
Hale v. Henkel, 201 U.S. 43 (1906):
“It may be that it…is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way; namely, by silent approaches and slight deviations from legal modes of procedure.This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of the courts to be watchful for the constitutional rights of the citizens, and against any stealthy encroachments thereon.Their motto should be obsta prinicpalis,”[Mr. Justice Brewer, dissenting, quoting Mr. Justice Bradley in Boyd v. United States, 116 U.S. 616, 29 L.Ed. 746, 6 Sup.Ct.Rep. 524]
[Hale v. Henkel, 201 U.S. 43 (1906)]
Springer v. Government of the Philippine Islands, 277 U.S. 189 (1928)
It is true that section 21 contains a specific provision that the Governor General shall appoint such officers as may now be appointed by the Governor General, or such as he is authorized by this act to appoint, or whom he may hereafter be authorized by law to appoint. And it is said that the effect of this is to confine the Governor General's powers of appointment within the limits of this enumeration. The general rule that the expression of one thing is the exclusion of others is subject to exceptions. Like other canons of statutory construction, it is only an aid in the ascertainment of the meaning of the law, and must yield whenever a contrary intention on the part of the lawmaker is apparent. Where a statute contains a grant of power enumerating certain things which may be done and also a general grant of power which, standing alone, would include these things and more, the general grant may be given full effect if the context shows that the enumeration was not intended to be exclusive. See, for example, Ford v. United States, 273 U.S. 593, 611 , 47 S. Ct. 531, Portland v. N. E. T. & T. Co., 103 Me. 240, 249, 68 A. 1040; Grubbe v. Grubbe, 26 Or. 363, 370, 38 P. 182; Swick v. Coleman, 218 Ill. 33, 40, 75 N. E. 807; Lexington ex rel. v. Commercial Bank, 130 Mo. App. 687, 692, 108 S. W. 1095; McFarland v. M., K. & T. Ry. Co., 94 Mo. App. 336, 342, 68 S. W. 105.
[Springer v. Government of the Philippine Islands, 277 U.S. 189 (1928)]
Bell v. United States, 349 U.S. 81 (1955)
When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. And this not out of any sentimental consideration, or for want of sympathy with the purpose of Congress in proscribing evil or antisocial conduct. It may fairly be said to be a presupposition of our law to resolve doubts . . . against the imposition of a harsher punishment.
[Bell v. United States, 349 U.S. 81, 83 (1955)]
Bonetti v. Rogers, 356 U.S. 691 (1958)
Though §§ 1 and 4(a) of the Anarchist Act of 1918, as amended by the Internal Security Act of 1950, are quite ambiguous in their application to the question here presented, we believe that our interpretation of them is the only fair and reasonable construction that their cloudy provisions will permit under the rare and novel facts of this case.
When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. And this not out of any sentimental consideration, or for want of sympathy with the purpose of Congress in proscribing evil or antisocial conduct. It may fairly be said to be a presupposition of our law to resolve doubts . . . against the imposition of a harsher punishment.
Bell v. United States, 349 U.S. 81, 83. And we cannot
assume that Congress meant to trench on [an alien's] freedom beyond that which is required by the narrowest of several possible meanings of the words used.
Fong Haw Tan v. Phelan, 333 U.S. 6, 10. Cf. Barber v. [356 U.S. 700] Gonzales, 347 U.S. 637, 642-643; Delgadillo v. Carmichael, 332 U.S. 388, 391.
U.S. v. Barnes, 222 U.S. 513 (1912)
It is the express extension of those sections to the special taxes imposed by the oleomargarin act which gives rise to the question before stated. The position taken by the defendants in error, and sustained by the district court, is, that that extension of particular sections is an implied exclusion of all others. Expressio unius est exclusio alterius. [222 U.S. 513, 519] We are unable to assent to that position. The maxim invoked expresses a rule of construction, not of substantive law, and serves only as an aid in discovering the legislative intent when that is not otherwise manifest. In such instances it is of deciding importance; in others, not. In the instance now before us too much is claimed for it. The sections named in 3 of the oleomargarin act are a part of chapter 3 of title 35 of the Revised Statutes. They relate exclusively to special taxes, and are so restricted in their terms that it is at least doubtful that they could be applied to any special taxes not imposed by that chapter, unless expressly extended to them. To illustrate, 3232, which precedes the others and is more or less a key to their meaning, declares: 'No person shall be engaged in or carry on any trade or business hereinafter mentioned until he has paid a special tax therefor in the manner hereinafter provided.' On the other hand, the sections in chapters 1 and 2 are, with minor exceptions, so general in their terms as to leave no doubt of their applicability to taxes imposed by subsequent legislation containing no provision to the contrary. In other words, the difference between the sections named and those in chapters 1 and 2 discloses an occasion for affirmatively extending the operation of the former, and no occasion for mentioning the latter. It also is apparent that the oleomargarin act will measurably fail of its purpose if the general provisions of chapters 1 and 2 are not applicable to the taxes which it imposes; for, as before indicated, it does not in itself provide a complete or effective scheme for their enforcement. Neither does it contain any provision for the redress of those from whom such taxes are erroneously or illegally exacted, although the settled policy of the government long has been to afford relief from all such exactions, as is shown by 3220, 3226, 3227, and 3228 in chapter 2 (U. S. Comp. Stat. 1901, pp. 2086, 2088, 2089). These omissions are cogent evidence that it is intended that recourse shall be had to the [222 U.S. 513, 520] general provisions of chapters 1 and 2, save as, in the oleomargarin act, it may be provided otherwise.
Much of our national legislation is embodied in codes, or systematic collections of general rules, each dealing in a comprehensive way with some general subject, such as the customs internal revenue, public lands, Indians, and patents for inventions; and it is the settled rule of decision in this court that where there is subsequent legislation upon such a subject, it carries with it an implication that the general rules are not superseded, but are to be applied in its enforcement, save as the contrary clearly appears. Thus, in Wood v. United States, 16 Pet. 342, 363, 10 L. ed. 987, 995, where a question arose as to what effect should be given a general provision of an early customs law in view of a later enactment upon that subject, it was said: 'And it may be added that, in the interpretation of all laws for the collection of revenue, whose provisions are often very complicated and numerous to guard against frauds by importers, it would be a strong ground to assert that the main provisions of any such laws sedulously introduced to meet the case of a palpable fraud should be deemed repealed, merely because in subsequent laws other powers and authorities are given to the customhouse officers, and other modes of proceeding are allowed to be had by them before the goods have passed from their custody, in order to ascertain whether there has been any fraud attempted upon the government. The more natural, if not the necessary, inference in all such cases is, that the legislature intend the new laws to be quxiliary to and in aid of the purposes of the old law, even when some of the cases provided for may equally be within the reach of each. There certainly, under such circumstances, ought to be a manifest and total repugnancy in the provisions to lead to the conclusion that the latter laws abrogated, and were designated to abrogate, the former.' In Saxonville Mills v. Russell, 116 U.S. 13, 21 , 29 S. L. ed. 554, 556, 6 Sup. Ct. Rep. 237, it was said, in disposing of a like [222 U.S. 513, 521] question: 'It would be an unsound and unsafe rule of construction which would separate from the tariff revenue system, consisting of numerous and diverse enactments, each new act altering it, in any of its details, or prescribing new duties in lieu of existing ones on particular articles. The whole system must be regarded in each alteration, and no disturbance allowed of existing legislative rules of general application beyond the clear intention of Congress.' And in Catholic Bishop v. Gibbon, 158 U.S. 155, 166 , 167 S., 39 L. ed. 931, 936, 15 Sup. Ct. Rep. 779, where the question was whether general statutes defining the powers of the officers of the Land Department were applicable to a grant of public lands by a subsequent act of Congress, it was said: 'While there may be no specific reference in the act of 1848 [9 Stat. at L. 323, chap. 177] of questions arising under this grant to the Land Department, yet its administration comes within the scope of the general powers vested in that Department . . . . It may be laid down as a general rule that, in the absence of some specific provision to the contrary in respect to any particular grant of public land, its administration falls wholly and absolutely within the jurisdiction of the Commissioner of the General Land Office, under the supervision of the Secretary of the Interior. It is not necessary that with each grant there shall go a direction that its administration shall be under the authority of the Land Department. It falls there unless there is express direction to the contrary.'
We conclude that, while the express extension of particular sections in chapter 3, dealing with special taxes, to the like taxes imposed by 3 of the oleomargarin act, may operate as an implied exclusion of the other sections in that chapter, it does not in any wise restrict or affect the operation of any of the general sections in chapters 1 and 2. And as 3177 is a part of chapter 2, is general in its terms, and does not appear to be repugnant to any provision in the oleomargarin act, we think the ques- [222 U.S. 513, 522] tion first above stated must be answered in the affirmative.
The cases of Craft v. Schafer, 83 C. C. A. 677, 154 Fed. 1002; Tucker v. Grier, 87 C. C. A. 513, 160 Fed. 611, and Hastings v. Herold, 184 Fed. 759, although not involving 3177, disclose some contrariety of opinion in the lower Federal courts upon the matter principally discussed herein, and we deem it appropriate to observe that our conclusion has been reached only after a careful consideration of those cases.
Neuberger v. Commissioner of Internal Revenue, 311 U.S. 83 (1940)
Sections 181-189 of the Revenue Act of 1932, 47 Stat. 169, 222-223, provide generally for computation and reporting of partnership income. In requiring a partnership informational return although only individual partners pay any tax, Congress recognized the partnership both as a business unit and as an association of individuals. This weakens rather than strengthens respondent's argument that the privileges are distinct or that the unit characteristics of the partnership must be emphasized. Compare Jennings v. Commissioner, 5 Cir., 110 F.2d 945; Craik v. United States, Ct.Cl., 31 F.Supp. 132; United States v. Coulby, D.C., 251 F. 982, affirmed, 6 Cir., 258 F. 27. Nor is the deduction claimed here precluded because Congress, in Sections 184-188, has particularized instances where partnership income retains its identity in the individual partner's return. The maxim 'expressio unius est exclusio alterius' is an aid to construction not a rule of law. It can never override clear and contrary evidences of Congressional intent. United States v. Barnes, 222 U.S 513, 32 S.Ct. 117.
It is true that the Treasury Department adopted a contrary position and denied the claimed deduction. G. [311 U.S. 83, 89] C.M. 14012, XIV-1 Cum.Bull. 145; I.T. 2892, XIV-1 Cum.Bull. 148. Under different circumstances great weight has been attached to administrative practice and treasury rulings, but beyond question they cannot narrow the scope of a statute when Congress plainly has intended otherwise. Rasquin v. Humphreys, 308 U.S. 54 , 60 S.Ct. 60; Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294 , 53 S.Ct. 350.
[Neuberger v. Commissioner of Internal Revenue, 311 U.S. 83 (1940)]
Meese v. Keene, 481 U.S. 465, 484 (1987)
"It is axiomatic that the statutory definition of the term excludes unstated meanings of that term. Colautti v. Franklin, 439 U.S. 379, 392, and n. 10 (1979). Congress' use of the term "propaganda" in this statute, as indeed in other legislation, has no pejorative connotation.{19} As judges, it is our duty to [481 U.S. 485] 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, 484 (1987)]
Stenberg v. Carhart, 530 U.S. 914 (2000)
"When a statute includes an explicit definition, we must follow that definition, even if it varies from that term's ordinary meaning. Meese v. Keene, 481 U.S. 465, 484-485 (1987) ("It is axiomatic that the statutory definition of the term excludes unstated meanings of that term"); Colautti v. Franklin, 439 U.S. at 392-393, n. 10 ("As a rule, `a definition which declares what a term "means" . . . excludes any meaning that is not stated'"); Western Union Telegraph Co. v. Lenroot, 323 U.S. 490, 502 (1945); Fox v. Standard Oil Co. of N.J., 294 U.S. 87, 95-96 (1935) (Cardozo, J.); see also 2A N. Singer, Sutherland on Statutes and Statutory Construction § 47.07, p. 152, and n. 10 (5th ed. 1992) (collecting cases). That is to say, the statute, read "as a whole," post at 998 [530 U.S. 943] (THOMAS, J., dissenting), leads the reader to a definition. That definition does not include the Attorney General's restriction -- "the child up to the head." Its words, "substantial portion," indicate the contrary."
Colautti v. Franklin, 439 U.S. 379 (1979)
"As a rule, `a definition which declares what a term "means" . . . excludes any meaning that is not stated'"
[Colautti v. Franklin, 439 U.S. 379 (1979), n. 10]
Scheidler v. National Organization for Women, 537 U.S. 393 (2003)
Absent contrary direction from Congress, we begin our interpretation of statutory language with the general presumption that a statutory term has its common law meaning. See Taylor v. United States, 495 U.S. 575, 592 (1990); Morissette v. United States, 342 U.S. 246, 263 (1952).
[Scheidler v. National Organization for Women, 537 U.S. 393 (2003)]
Ai v. United States, 809 F.3d. 503, 506-07 (9th Cir. 2015)
“We have held that "taxing statute[s] must be construed most strongly in favor of the taxpayer and against the government." Greyhound Corp. v. United States, 495 F.2d 863, 869 (9th Cir.1974). However, "[w]e are not impressed by the argument that [any doubtful question] should be resolved in favor of the taxpayer." White v. United States, 305 U.S. 281, 292, 59 S.Ct. 179, 83 L.Ed. 172 (1938). Thus, "where the rights of suitors turn on the construction of a [tax] statute ... it is our duty to decide what that construction fairly should be," and "doubts which may arise upon a cursory examination of [tax statutes may] disappear when they are read, as they must be, with every other material part of the statute, and in the light of their legislative history." Id. (citation omitted); see also Irwin v. Gavit, 268 U.S. 161, 168, 45 S.Ct. 475, 69 L.Ed. 897 (1925) ("It is said that the tax laws should be construed favorably for the taxpayers. But that is not a reason for creating a doubt or for exaggerating one when it is no greater than we can bring ourselves to feel in this case.").
Therefore, while tax statutes "are not to be extended by implication beyond the clear import of the language used," United States v. Merriam, 263 U.S. 179, 187–88, 44 S.Ct. 69, 68 L.Ed. 240 (1923), we do not mechanically resolve doubts in favor of the taxpayer but instead resort to the ordinary tools of statutory interpretation.
[Ai v. United States, 809 F.3d. 503, 506-07 (9th Cir. 2015) ]
U.S. v. Cowan, 535 F.Supp.2d. 1135, 1143 (D. Haw. 2008)
“The United States bears the initial burden of proof in an action to collect taxes. United States v. Stonehill, 702 F.2d 1288, 1293 (9th Cir. 1983), cert. denied, 465 U.S. 1079, 104 S.Ct. 1440, 79 L.Ed.2d 761 (1984); Palmer v. Internal Revenue Service, 116 F.3d 1309, 1312 (9th Cir. 1997). The government's burden can be met by the presentation of federal tax assessments. Stonehill, 702 F.2d at 1293. A presumption of correctness attaches to the government's tax assessment, and introduction of the assessment establishes a prima facie case. Id. The presumption arises when it is substantiated by a minimal evidentiary foundation. Id. The government's proffer of some substantive evidence that the taxpayer received unreported income is sufficient. Id. ”
[U.S. v. Cowan, 535 F. Supp.2d. 1135, 1143 (D. Haw. 2008) ]
[EDITORIAL: Note how "United States" is used interchangeably with "the (federal) government" in the above citation]
Fischer v. United States, 529 U.S. 667 (2000)
This expansive construction of § 666(b) is, at the very least, inconsistent with the rule of lenity -- which the Court does not discuss. This principle requires that, to the extent that there is any ambiguity in the term "benefits," we should resolve that ambiguity in favor of the defendant. See United States v. Bass, 404 U.S. 336, 347 (1971) ("In various ways over the years, we have stated that, when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite" (internal quotation marks omitted)).
[Fischer v. United States, 529 U.S. 667 (2000)]
Botany Worsted Mills v. United States,278 U.S. 282, 49 S.Ct. 129 (1929):
When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode," 278 U.S., at 288-89.
[Botany Worsted Mills v. United States, 278 U.S. 282, 49 S.Ct. 129 (1929)]
"includes" from Lost Horizons Website: From: http://www.losthorizons.com/comment/The Law Means What It Says.pdf
"Include or the participial form thereof, is defined to comprise within’; ‘to hold’; ‘to contain’; ‘to shut up’; and synonyms are ‘contain’; ‘enclose’; ‘comprehend’; ‘embrace’.” [U.S. Supreme Court, Montello Salt co. v. Utah, 221 U.S. 452, at 455, 466.]
When pressed, a typical not-worth-his-air tax specialist (read: beneficiary) will try in desperation to deploy section 7701(c) of the code: “Includes and including: 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.”
The desired implication to be taken is that terms defined as “xx includes…” embrace all things commonly meant by the word being defined plus those things listed after “includes”. This feeble effort to muddy the waters quickly fails under even a cursory analysis.
First, if the word being made into a legal term is meant to be understood as having its common meaning, there is no need to define it at all. It is axiomatic that if a word is explicitly defined it has a restricted meaning. If language to the effect of, “For purposes of this paragraph, the term “Fruit” includes apples, pears, and oranges.” is offered, it can only be understood as restricting the definition to those things listed, or no definition would have been required; the word “fruit” would have been understood to include apples, pears and oranges, as well as all other fruits.
Second, note that the word "common" (or its equivalent) is left out of the definition of "includes" and "including", creating a sophomoric circular argument. The only "other things otherwise within the meaning of the term defined" are those that are the same as those used to provide the definition. In other words, the "things" used in the definition are what establish the class to which the "other things" must belong in order to be included under the doctrine of 7701(c), and, as the word is being singled out for definition, absent explicit language to the contrary the common meaning of the word must be excluded. To see what I mean, insert the word "common" as follows: "The terms "includes" and "including" when used in a definition contained in this title shall not be deemed to exclude other things otherwise with the common meaning of the term defined.". Without it, the section is meaningless, but misleading, as intended. Furthermore, note that the statute says, "...the meaning of the term defined.", rather than the word defined. If Congress had meant (and been Constitutionally able) to embrace within its definitions the common meaning of the words being made into legal terms it would have written 7701(c) in that way: "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 word defined." The word isn't a term until the provided definition has been applied, at which point its common meaning has been stripped away.
If "Fruit" is defined thusly: "When used in this paragraph, the term "Fruit" includes turnips, carrots and broccoli.", is it to be presumed that it also means apples? How about if in the next paragraph one finds, "For purposes of this paragraph the term "Fruit" includes apples, turnips, carrots and broccoli." Should it be presumed that apples was included by implication in the first definition and the writer was just lazy, or ran out of typewriter ribbon? Obviously not.
If the writer had, in the first instance, said, "For purposes of this paragraph the term "Fruit", in addition to the commonly understood meaning of the word "fruit", includes..." or, "..."Fruit", in addition to all fruits, includes..." or even simply, "..."Fruit" also includes...", all is different. But he did not.
Finally, though it is irrelevant to the logical analysis of the section except insofar as it underscores its meaninglessness, saying that something shall not be deemed to be excluded does not mean that it must or should be deemed to be included, regardless of how it is defined or classified, or whether necessary referents are provided. The very creation of the section reveals an overall intent to dissemble. If Congress had the authority (or simply meant) to enact what they wish us all to believe that they enacted through this clause, it would have read: “Includes and including: The terms ''includes'' and ''including'' when used in a definition contained in this title shall be construed as expanding the class represented by the common meaning of the word defined with the addition of the explicitly listed items.” But it does not. For that matter, Congress could have simply inserted one simple clause into the code, in one place only, to the effect of, "Public sector workers, officials and organizations are to be considered subject to the requirements of this title in the same fashion as are private citizens and organizations". That it did not must be given proper significance.
As the United States Supreme Court observed,
"The construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong, especially when Congress has refused to alter the administrative construction, and such deference is particularly appropriate where an agency's interpretation involves issues of considerable public controversy and Congress has not acted to correct any misperception of its statutory objectives." CBS, INC. v FCC, 453 US 367, p. 367, 69 L Ed 2d 706, p. 709 190155/564515
This language has been on the books for 64 years and Congress has revised the code a few hundred times during that period.
The IRS has floated a ridiculous "explanation" to the effect that the use of "includes" is because of doubts at one time as to whether the public sector was covered by the IRC. This proposition might have a little hang time if the relevant references were found in an addendum or supplement, but not when they constitute the sole definition of the term. There is no other list to which the public-sector references can be added; they ARE the list. This doesn't stop your average tax "professional" from parroting the nonsense, of course.
The simple tawdry fact is that Congress wants to spend lots of your money, and even though it can't seize it from you legally, they are perfectly willing to set up a system by which you are led to believe that they can, and about which you will have great difficulty discovering the truth. Dwell on this a while and the nuances of the phrase 'voluntary compliance' will suddenly become clear. What it refers to is you "voluntarily" allowing yourself to be characterized as a public-sector beneficiary, and then complying with requirements that attach to that status.
Click here to read Congresswoman Barbara Kennelly's reply to a constituent on this subject.
- The United States Supreme Court: “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 US 16, 23, 78 L Ed 2d 17, 104 S Ct. 296 (1983)
Definitions in the U.S code which are not relied upon to establish whether you received taxable "wages":
- Title 26 Subtitle C, Chapter 21, Subchapter C, Section 3121: (FICA Income Tax-- application of this tax is based upon citizenship and residency, not being an "employee" as such)
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;- Title 26, Subtitle D, Chapter 38, Subchapter A, Sec. 4612. (Petroleum Tax)
(4) United States
In general
The term ''United States'' means the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, any possession of the United States, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands.- Title 20, Chapter 69, Section 6103 (Education)
As used in this chapter:
(8) Employer- The term "employer" includes both public and private employers.
Other relevant Supreme Court rulings:
"When the words of a statute are unambiguous, the first canon of statutory construction--that courts must presume that a legislature says in a statute what it means and means in a statute what it says there--is also the last, and judicial inquiry is complete." Connecticut National Bank v. Germain, 503 US 249 (1992)
"As in all cases involving statutory construction, "our starting point must be the language employed by Congress," Reiter v Sonotone Corp., 442 US 330, 337, 60 L Ed 2d 931, 99 S Ct. 2326 (1979), and we assume that the legislative purpose is expressed by the ordinary meaning of the words used." Richards v United States, 369 US 1, 9, 7 L Ed 2d 492, 82 S Ct. 585 (1962)
"When the terms of a statute are unambiguous, judicial inquiry is complete except in rare and exceptional circumstances." FREYTAG v. COMMISSIONER, 501 US 868 (1991), 115 L Ed 2d 764, pp. 767
"In a statutory construction case, the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue, judicial inquiry into the statute's meaning--in all but the most extraordinary circumstance--is finished; courts must give effect to the clear meaning of statutes as written." Estate of Cowart v. Nicklos Drilling Co., 505 US 469, 120 L Ed 2d 379, 112 S Ct. 2589 (1992)
"It is not a function of the United States Supreme Court to sit as a super-legislature and create statutory distinctions where none were intended." AMERICAN TOBACCO CO. v PATTERSON, 456 US 63, 71 L Ed 2d 748, 102 S Ct. 1534
"The United States Supreme Court cannot supply what Congress has studiously omitted in a statute." FEDERAL TRADE COM. v SIMPLICITY PATTERN CO., 360 US 55, p. 55, 475042/56451
"The starting point in any endeavor to construe a Statute is always the words of the Statute itself; unless Congress has clearly indicated that its intentions are contrary to the words it employed in the Statute, this is the ending point of interpretation." Fuller v. United States 615 F. Supp. 1054 (D.C. Cal 1985) , West’s Key 188 quoting Richards v. United States, 369 US 1, 9, 82 S. Ct. 585, 590, 7 L.Ed. 2d 492 (1962)
"The starting point for interpreting a statute is the language of the statute itself; absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." PRODUCT SAFETY COMM'N v. GTE SYLVANIA, 447 US 102, 64 L Ed 2d 766, 100 S Ct. 2051 (1980)
"Words used in the statute are to be given their proper signification and effect." Washington Market Co. v. Hoffman, 101 U. S. 112, 115, 25 L. Ed. 782, 783 (1879).