Ben
Forum Replies Created
Sorry, can't stay away from this topic!
Hmmm….couldn't Congress just write 7701 like this:
For the purposes of this subtitle:
(1) the terms ?includes? and ?including? are not limiting.
which they did here:
Rules of Construction – Title 28, section 3003
HA!
I'm led to believe that anybody who thinks 7701 and section 3003 of Title 28 say the same thing is willfully clinging on to government obfuscation for dear life.
Just found an article that does an excellent job of explaining this. I'm not sure if it is linked to on this site or not:
http://www.losthorizons.com/comment/The%20…20It%20Says.pdf
My confusion is beginning to clear up…
EDIT: Just realized this is an excerpt from Cracking the Code by Peter Hendrickson.
Thank you for the swift reply.
I was previously unaware that the phrase “but not limited to” was used in the code with such frequency, nor had I considered the logical consequences of the “does not include” usage. Your proofs are compelling. Let me present a problem to proof number 2 and have you address it if you would do me the courtesy.
Quote:(1) PersonThe term ?person? shall be construed to mean and include an individual, a trust, estate, partnership, association, company or corporation.
This is interesting. If “include” is used expansively then this definition becomes illogical. From my understanding, “mean” becomes a limiting term while “includes” is expansive. But what about “include?” According to the above definition, “means” and “include” cannot contradict each other.
So “include” is not expansive but limiting? If that is the case then the default definiton of the word “include” is limiting, but “includes” has a special definition which supersedes that in 7701.
Section 7701 does not refer to “include”:
Quote:? Includes and includingThe 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.
Thus, whenever we see the word “includes” or “including” there may be a more expansive definition which we are to take as part of the definition. However, if we see the word “include” as in “does not include”, then it appears that we are not to make that same observation.
Therefore, could it be incorrect to substitute the logical negation of “includes” when seeing “not include”, since “include” is not mentioned in the definitions and is being used as a limiting term?
If this is accurate then it poses a problem to lumping in “include” with “includes”. Are there any cases in the code where “include” is used expansively?
To me, all of this is further evidence of vagueness.
Please help me, someone…I'm confused!
This situation is bothering me. It is crystal clear to me that the supreme Court has determined that the word “includes” is a limiting term. However, and correct me if I'm wrong, everyone here seems to be in agreement that if a chapter contains its own definition of the word “includes” then that takes precedence. Based on this I would speculate, because I haven't read all of the above cases (and again correct me if I'm wrong) that the supreme Court was clarifying this definition in absence of a definition contained in the statutes in question.
If that's the case, and section 7701 contains the definition that is to be understood within Title 26, then it becomes, at least initially, irrelevant what the supreme Court says until a contradiction is discovered within the law itself pertaining to the usage of the word “includes.”
And my understanding is that Sonik identifies this contradiction through section 61 where the word “includes” is followed by “but not limited to.”
So the real question is do the use of the words “but not limited to” offer enough evidence of a conflict so as to render the law vaguely written. This is where I am having difficulty. Do the words “but not limited to” really constitute a contradiction to the definition of “includes” in 7701? Is it not conceivable that those words are there as clarification and not meant in any way to disturb the definition of “includes?” Please explain.
Looking at it another way, are we saying that by removing those words “but not limited to” in section 61 and wherever else they might appear we would be changing all the definitions containing the word “includes” such as “United States” and “State” and “employee”, etc…to what they are commonly understood to mean at face value by the average taxpayer who hasn't studied the code?
It just seems to me that there is an awful lot riding on this problem, and I admit I am having my doubts. If the courts would assert that “but not limited to” does not create ambiguity in the definition of “includes” then where does that leave us? Have any courts ever spoken to this specific contradiction apparent in sections 61 and 7701?
Thanks for the reply. I tried to edit some of my post to make it clearer. I was going a hundred miles an hour and didn't make my main point too well. I'll try again.
The Supreme Court ruled in the Brushaber case that income taxes are not direct, but are indirect taxes (excise). There has not been, to my knowledge, a SC case since then that has said otherwise concerning income taxes.
However, the IRS, on its website, says that income taxes are direct taxes. In their attempt to establish this point they refer to a case heard by the 10th circuit, in which the opinion incorrectly states the findings of the Brushaber Supreme Court case:
Quote:the court [10th circuit] cited Brushaber v. Union Pac. R.R., 240 U.S. 1, 12-19 (1916), and noted that the U.S. Supreme Court has recognized that the “Sixteenth Amendment authorizes a direct nonapportioned tax upon United States citizens throughout the nation.”Well, the Brushaber case did not say that the Sixteenth Amendment authorized a direct, unapportioned tax. It simply upheld the income tax as an excise tax as part of the ruling.
So what we have here is the IRS, not being able to refer to the Brushaber case directly (because that case identifies income tax as an excise), cites a lower court's findings which misrepresent the SC's decision in Brushaber.
The IRS knows what the Brushaber case says which is why they don't cite it directly. Rather, they rely on the misrepresentation of that case by the 10th circuit in order disseminate the disinformation that is income tax=direct tax.
And this idea that the income tax is a direct tax is sold to everyone. To me its prima facie evidence that the IRS is lying through its teeth. My questions then revolves around why this is the case. Sure, we know how they operate. But if it really doesn't matter if the tax is direct or indirect, why not have the truth on their website?
And I certainly understand there may be something I'm missing here – which is why I posted on the site. Thanks again.
