I want to specially thank IRS
collaborator Brian Rookard
for his efforts to make clear, how the words "includes" and
"including" are used to
confuse, obfuscate, and deceive Joe
Sixpack.
That was sarcasm. Mr.
Rookard is all about confusing, obfuscating and deceiving Joe and his
friends. Before you continue with this page, it would be helpful
for you to read the
page about "Includes" and "Including". (Opens in a new window.)
Mr. Rookard made up the following situation in an
attempt to argue that the use of the word includes is not a limiting
word in tax law.
"The recipe for
brownies
includes eggs."
Please tell us whether:
(a) The recipe includes other ingredients besides eggs.
(b) The recipe includes only eggs. |
Mr. Rookard attempts to
argue that the use of the word includes is not a limiting word in tax
law this by citing 7701(c).
| 7701(c) 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. |
I snip in steps so that even the
most daft of the collaborators can
follow along, lest I be accused of changing meanings. We
know that
this is about the use of "includes"
and "including"
in this title, (this title, the Internal Revenue Code, or colloquially,
Tax Law), So I will remove "when used in a definition contained in this
title"
| 7701(c) The terms "includes" and "including"... shall not be deemed to
exclude other
things otherwise within the meaning of the term defined. |
That is still a little unwieldy,
so I remove "be deemed to":
7701(c) The terms "includes" and "including"... shall... not exclude
other things
otherwise within the meaning of the term
defined.
|
And I remove "other ":
7701(c) The terms "includes" and "including"... shall... not
exclude... things
otherwise within the meaning of the term
defined.
|
And I remove "defined":
7701(c) The terms "includes" and "including"... shall... not
exclude... things
otherwise within the meaning of the term...
|
Having distilled section
7701(c) to the exact essence of its
meaning, I can now proceed.
Repeating
what Black's Law dictionary has to say about the word "includes".
"Include. (Lat.
Inclaudere, to shut in. keep within.) To confine within, hold as an inclosure.
take in, attain, shut up, contain, inclose, comprise, comprehend,
embrase, 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."
|
The first concept in Black's is: "To confine within, hold as an inclosure."
In that case, includes grabs
what is listed, AND NO MORE.
The root of the term include,
is basically to surround. To surround is to have an "inside" and
an
"outside". Something is then either "inside" or it is "outside".
One
or the other. There is no third place.
"The
term include may, according to context, express
enlargement..."
which means to surround more, to have another something or somethings
on the "inside". "May" as in 'to indicate a possibility',
that there
could be enlargement. Again, according to context.
Ejusdem
generis
(eh-youse-dem generous) v adj.
Latin for "of the same kind," used to
interpret loosely written statutes. Where a law lists specific
classes
of persons or things and then refers to them in general, the general
statements only apply to the same kind of persons or things specifically
listed. Example: if a law
refers to automobiles, trucks,
tractors, motorcycles and other motor-powered vehicles, "vehicles"
would not include airplanes, since the list was of land-based
transportation. |
Congress creates a class of things by defining the class.
Congress defines the class by
giving an example of items in the class.
The items in the class then
define the class.
Congress also names or labels
the class.
The term is the name or label
of the class.
Thus a term is the name or
label of a class defined by the items in
the class.
Returning to Mr. Rookard's setup:
"The recipe for brownies
includes eggs."
Please tell us whether:
(a) The recipe includes other ingredients besides eggs.
(b) The recipe includes only eggs.
- The TERM
is defined to include things within "the meaning
of term
defined".
- The TERM
is NOT defined within
the dictionary
meaning
of the WORD
used.
- The TERM
is defined as to the CLASS so
"included" or "enclosed" by the listing of the ITEMS
listed.
- The "CLASS" is
defined by the ITEMS
listed.
- The expansion is ONLY ITEMS
within the CLASS
defined that are NOT
listed.
- The expansion does not include a different CLASS.
- The expansion does not include items within a different CLASS.
- The TERM (ingredients _for_
brownies) is defined to include things within "meaning
of term
(ingredients
_for_ brownies) defined".
- The TERM
(ingredients
_for_ brownies) is defined as to the CLASS (ingredients _of_
brownies) so "included" or "enclosed" by the listing of the ITEMS (eggs)
listed.
- The "CLASS" (ingredients _of_
brownies) is defined by the ITEMS (eggs)
listed.
- The expansion is ONLY ITEMS (flour, sugar, &
chocolate) within the CLASS (ingredients _of_
brownies) defined that are NOT listed.
- The expansion does not include a different CLASS (ingredients _of_
chili).
- The expansion does NOT include ITEMS (beans &
tomato sauce) of a different CLASS (ingredients _of_
chili).
- The (ingredients
_for_ brownies) is defined to include things within "the (ingredients _for_
brownies)".
- The (ingredients
_for_ brownies) is defined as to the (ingredients _of_
brownies) so "included" or "enclosed" by the listing of the (eggs).
- The (ingredients _of_
brownies) is defined by the (eggs).
- The expansion is ONLY ITEMS (flour, sugar, &
chocolate) within
the (ingredients
_of_ brownies) defined that are NOT listed.
- The expansion does not include a different CLASS (ingredients _of_
chili).
- The expansion does NOT include ITEMS (beans &
tomato sauce) of a different CLASS (ingredients _of_
chili).
|