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Another Round To The Head Of The 800-Pound Gorilla

I HAVE DESCRIBED TAX-SCAMSTER DODGES ABOUT THE TERM "INCLUDES" as the
800-pound Gorilla of obfuscation, because its the one cognitive hump more people find easier
to trip over than any other. Over the years I have parsed-out this statutory element many times,
because all by itself, getting this one thing right slays the entire pretense of legality in applying
the tax broadly, rather than only to distinguished activities.
The remarkable utility of the "includes" element in clarifying the limits of the tax is due to a
simple principle of logic which is also an established legal axiom:
Inclusio unius est exclusio alterius. The inclusion of one is the exclusion of another. The
certain designation of one person is an absolute exclusion of all others. ... This doctrine decrees
that where law expressly describes [a] particular situation to which it shall apply, an irrefutable
inference must be drawn that what is omitted or excluded was intended to be omitted or
excluded. Black's Law Dictionary, 6th Edition
Under this simple and obvious rule of statutory construction, if a subclass of things are
distinguished from out of a larger class of all such things and specified as being measures of
taxable activity, then those not in that distinguished subclass are not measures of taxable
activity.
For example, if, out of the overall class of 'wages as commonly-defined', a subclass distinguished
by special characteristics is designated as that of "wages subject to the tax", then under the
inclusio unius est exclusio alterius rule, those not qualified for that subclass are "wages NOT
subject to the tax". Thus, the inclusio unius est exclusio alterius rule and the language of the
statutes to which it applies brightly illuminate the limits of the tax in any given situation.
SO, IT BEING THE HIGHLY USEFUL FOCUS OF ATTENTION THAT IT IS, I have written
about the "includes" thing often. Each such study takes a different tack in describing government
efforts to encourage misunderstanding of the subject and why and how such efforts are
fallacious.
While searching for something else in one of my directories the other day, I came across an older
treatment of this subject that I had preserved for future use. Having looked it over and found it
still useful, I have decided to offer it here now, for any who might be interested.
Those who enjoy puzzles and mental challenges will especially enjoy this study. Anyone pushing
a misunderstanding of the income tax will especially NOT enjoy it.

Another Round To The Head Of The 800-Pound Gorilla

THE LAW-DEFIER CONTINGENT IN GOVERNMENT and other beneficiaries of the
ignorance tax-- and even non-CtC-educated members of the tax honesty community-- like to
encourage the notion that the includes rule of construction at 7701(c) of Title 26 operates on
what PRECEDES includes (that is, the term being defined), rather than on what FOLLOWS it
(that is, the enumerated list providing the definition). According to this notion, what precedes
includes is taken to have a meaning established elsewhere, and the subsequent deployment of
the term includes permits that pre-existing definition to be supplemented by the addition of
what follows in the enumerated list. This is purportedly so by virtue of the rule of construction at
7701(c):
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.
Lets examine this proposition.
FIRST OF ALL, let us observe that everything assertedly sought and accomplished by this
proposition would be achieved by simply adding the word also in front of includes in any
definition. Look, for instance, at the definition of trade or business at 26 USC 7701(a)(26):
The term ''trade or business'' includes the performance of the functions of a public office.
Those boosting the includes operates on the preceding thing notion mean for this to be read as
The term ''trade or business'' also includes the performance of the functions of a public office.-that is, when used in the tax law the phrase trade or business is meant to be taken as retaining
its conventional, everyday-speech meaning, while also covering the performance of the functions
of a public office.
If this is so (that is, if this is how Congress meant this definition to be read), why isnt it simply
written the way I just wrote it? Is it credible that when Congress meant to express also includes
it chose to do so by substituting 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 for also? This is patently absurd.
Congress is not known for clarity and conciseness in legislation, but it knows the meaning of
also, and uses it often. Congress knows how to say, includes is not limiting, too, and could
have used this as its rule of construction for includes if it really wished to have such a rule, and
if thats what it meant the rule to communicate. The fact that Congress DOES know how to say
also, and includes is not limiting means that it DOESNT mean either of these things when it
says what it does in its includes rule, both as a matter of common sense and doctrinally:
"'[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) (Quoting United States v. Wong Kim Bo, 472 F. 2d 720, 722 (CA 1972))
NEXT, LET'S CONSIDER THE IMPLICATIONS of other things otherwise within the
meaning of the term defined. If what precedes includes is taken to have a pre-existing
definition, which is retained, and to which what follows is simply added, then other things
otherwise within the meaning of the term defined are already not excluded. That is, those
other things are inherently within the pre-existing definition. If this is only so by virtue of the
rule given (because without the rule the pre-existing definition would NOT be retained), then the
rule becomes a tautology, in which it is called upon to retain a definition that doesnt exist
without the operation of the rule itself.
Further, of course, there is no way of knowing what the alleged pre-existing definition being
retained actually is. We know that it cant be presumed to be the dictionary definition of the
word that precedes includes, because we see many examples in the tax law of definitions in
which the enumerated list following includes contain things already within the dictionary
definition of that word. For example, see the following sections from 26 USC:
3401(c) Employee "For purposes of this chapter, the term ''employee'' includes an officer,
employee, or elected official of the United States, a State, or any political subdivision thereof, or
the District of Columbia, or any agency or instrumentality of any one or more of the foregoing.
The term ''employee'' also includes an officer of a corporation",
7701(a) (7) Stock The term stock includes shares in an association, joint-stock company, or
insurance company.
7701(a) (8) Shareholder The term shareholder includes a member in an association, jointstock company, or insurance company.
3121 (g) Agricultural labor For purposes of this chapter, the term agricultural labor includes
all service performed (1) on a farm, in the employ of any person, in connection with
cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural
commodity, including the raising, shearing, feeding, caring for, training, and management of
livestock, bees, poultry, and fur-bearing animals and wildlife;
7343. Definition of term person The term person as used in this chapter includes an officer
or employee of a corporation, or a member or employee of a partnership, who as such officer,
employee, or member is under a duty to perform the act in respect of which the violation occurs.
Plainly, if employee had its dictionary definition to which what followed includes was to be
added, federal employees would not be listed-- they would already be within the retained preexisting meaning. The same is true of some or all of the enumerated items in the other examples
given. So, what IS the pre-existing definition of employee being retained if it has to have
federal employees added to it for them to included in that definition? Or of agricultural labor
if it doesnt already include service performed on a farm? Or of person if it doesnt cover

particular individuals unless they are added to it by particular enumeration? They are clearly not
the dictionary definitions
And, of course, the rule of construction for includes doesnt even try to say that the WORD to
which the enumerated items are being purportedly added retains its pre-existing meaning. Instead
it refers to the meaning of the TERM DEFINED. Why would the latter be said if the former were
what is meant? It would not be, and it isnt, because the former is NOT what is meant.
THE SIMPLE, INDISPUTABLE FACT IS, includes and its rule of construction at 7701(c) are
meant to operate on the enumerated list that follows the term, not what precedes it. That is,
includes, under the given rule of construction, simply provides for the potential expansion of
the enumerated list which follows it with other things otherwise within the meaning established
by that list:
"[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. *fn2: This follows from the canon noscitur
a sociis, "a word is known by the company it keeps." Neal v. Clark, 95 U.S. 704, 708-09
(1878). Brigham v. United States, 160 F.3d 759 (1st Cir. 1998).
Further, the meaning established by that enumerated list IS the meaning of the term defined (to
which other things otherwise within that list-established meaning but not already mentioned -that is, other things of like kind and class-- can be added).
[T]he verb "includes" imports a general class, some of whose particular instances are
those specified in the definition. This view finds support in 2(b) of the Act, which reads: "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. Helvering
v. Morgans, Inc, 293 U.S. 121, 126 fn. 1 (1934) (Emphasis added)
As the Supreme Court says, the includes rule means that a definition in which the term
includes is used is one of a general class, the nature of which is illustrated (not added to) by
the particular instances specified (enumerated). Since the enumerated items illustrate the class,
they provide the term defined (person, employee, trade or business, etc.) with its
meaning. They are not being added to a pre-existing meaning; rather they are particular instances
illustrating the unique, custom meaning of the term being created for purposes of a given section,
chapter, title, etc..
The court refers to and re-iterates this observation in Federal Land Bank of St. Paul v. Bismarck
Lumber Co. 314 U.S. 95, 62 S.Ct. 1 U.S. (1941):
[I]ncluding... ...connotes simply an illustrative application of the general principle."

(That is, the enumerated items in a definition in which including is deployed "illustrate"-identify, and thus establish-- the contours of the class which the defined term represents-- the
"general principle" of its application).
TO PUT IT PLAINLY AND UNVARNISHED, the includes operates on what precedes it
proposition is arrant nonsense. In fact, since there is not one scintilla of authority or even mere
common sense supporting it, the proposition is more properly characterized as a lie.
Anyone taking this gorilla out for an airing hasnt given the matter any thought, study or
investigation, and thus is just blowing fog while meaning to be taken as knowing what he's
talking about. Or, he HAS done the thinking, study and investigation, DOES know what he's
talking about, and is deliberately trying to deceive.
Keep your powder dry, and whenever the opportunity arises, give this ugly beast a hard one in
the noggin.
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