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Re: Tax Facts

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  • nickster97@yahoo.com
    ... no, 20 cfr parrallels 26 usc a lot. ... 20 usc applies to 42 usc, ocial security. ... 3402 of title 26 is the tie in, withholding at the source using the
    Message 1 of 35 , Dec 30, 2003
      --- In tips_and_tricks@yahoogroups.com, Mr Klon Shugart
      <keshugart@y...> wrote:
      > Isn't the terms; employer, employee, employment, is
      > only defined in 20 CFR?

      no, 20 cfr parrallels 26 usc a lot.
      > Since 20 CFR relates to 20 USC, isn't that the title
      > for Health, education and Welfare?

      20 usc applies to 42 usc, ocial security.

      > Where is the tie-in to Subtitle A of 26 USC?

      3402 of title 26 is the tie in, withholding at the source using the
      definition of wage under 20 cfr.

      > Is a W-4 referenced in Subtitle A of 26 USC?

      no, subtitle C
      > Is the term "Employer, employee, and employment" is
      > only found in Subtitle C, Chapter 21 of the Title 26
      > and not found in Subtitle A?

      also 20 cfr
      > Where do you find the definition of "Withholding
      > agent" in Title 26 USC?

      does not apply
    • john babinski
      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 CFR
      Message 35 of 35 , Mar 7, 2006
        Other terms defined in the Internal Revenue Code which rely on the word "includes":
        TermWhere defined
        "employee"26 U.S.C. �3401(c),
        26 CFR �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 CFR 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, page 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, page 581]

        Black's Law Dictionary, Sixth Edition, page 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."

        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)

        "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.�

        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�.
        �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.�

        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.� 
        [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.]

        Black's Law Dictionary, Sixth Edition, page 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.�

        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.�

        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."

        Definitions - Words and Phrases page 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 

        �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)]

        "includes" from Lost Horizons Website:
        "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, Montillo 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)
          For purposes of this chapter, the term ''employee'' means -
          any officer of a corporation; or
          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.
        • 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 115 L Ed 2d 764, pp. 767 - 9/73
        • "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 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.

          "Alan Bacon (sui Juris)" <arement@...> wrote:
        From the Constitution: Article 1 Section 8 - Indirect taxes -

        To lay and collect taxes, duties, imposts and excises, to pay the
        debts and provide for the common defence and general welfare of the
        United States; but all duties, imposts and excises shall be uniform
        throughout the United States;

        Article 1 Section 10:

        No state shall, without the consent of Congress, lay any
        imposts or duties on imports or exports, except what may be
        absolutely necessary for executing its inspection laws; and the net
        produce of all duties and imposts, laid by any state on imports or
        exports, shall be for the use of the Treasury of the United States;

        AMENDMENT XVI (1913)

        The Congress shall have power to lay and collect taxes on
        income, from whatever source derived, without apportionment
        among the several States, and without regard to any census or

        OK, from this basis (1)"lay and collect taxes" (given).
        OK, (2)duties, imposts and excises shall be uniform.
        OK, (3)taxes on income, from whatever source derived, without
        apportionment (what ARE the source(s))?

        STATES which may be included within this Union.

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