in·clude tr.v. in·clud·ed,
in·clud·ing, in·cludes. 1. To take in as a
part, an element, or a member. 2. To contain as a secondary or
subordinate element. 3. To consider with or place into a group, class,
or total: thanked the host for including us. [Middle English includen, from Latin inclu-dere, to enclose :
in-, in; see IN-2 + claudere, to close.]
American Heritage Electronic Dictionary
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Please note the original
Latin: To include is to enclose.
en·close also in·close -- tr.v. en·closed,
en·clos·ing, en·clos·es. 1. To surround on all sides; close in.
2. To fence in so as to
prevent common use: enclosed the pasture. [Middle English enclosen,
from Old French enclos, past participle of enclore, from Latin inclu-dere, to enclose.
See INCLUDE.]
American Heritage Electronic Dictionary
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To include is to enclose; to surround;
to contain within. If something is enclosed, the enclosure has an
inside and an outside. An item is either inside the enclosure or
an item is outside the enclosure. One or the other. There
is no third location.
This "enclosure" can be a corral which "encloses" a CLASS of items
intended. Or this "enclosure"
can be a corral which "encloses"
a LIST of items intended. Or this "enclosure"
can be a corral which "encloses"
a LIST of items intended and a CLASS of items intended.
This sets the stage for the
following study and examination of the nature of limitation or
expansion as the case may be for the words includes and including.
The question to be answered
is where does any particular item reside. Does a particular item reside
within the corral of items, or does the item reside outside the corral
of items?
Internal Revenue Code
Section 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.
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Please take note what 7701(c) does
NOT state:
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 common language (dictionary)
definition of the word.
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I'm going to distill IRC
section 7701(c) by removing what is
extraneous to this discussion. This leaves the essence of the concept
to be more readily observed.
Internal Revenue Code
Section 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.
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Section 7701(c) parse:
The terms "includes" and
"including" ... shall not ... exclude other things ... within the
meaning of the term defined.
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Only when the "term defined" is a CLASS of items can includes and
including be expansive... And then, only in regard to items within the CLASS defined.
Section 7701(c) parse:
| The terms "includes" and
"including" shall not exclude other things within the meaning of the CLASS of items
defined. |
Congress codified the
following rule of statutory construction in section 7701(c):
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.
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ONLY when defining a CLASS can items be included (enclosed) in
that class without specific enumeration. Then, and ONLY then, can the
use of includes and including be expansive in nature.
And the expansion can only expand to "enclose" items of the same CLASS. It does
NOT "enclose"
items not in the same
class. Thus even as a term of expansion, includes and including are terms of LIMITED
expansion.
Expressio unius est
exclusio alterius
One of the linguistic canons applicable to the construction of
legislation. By expressing one thing is [by implication] to
exclude another. There is no room for
the application of this principle where some reason other than the
intention to exclude certain items exists for the express
mention in question. Thus what is
said may be intended merely as an example or be included for
abundance of caution or for some other reason; or the thing supposed to
have been impliedly excluded may not have existed at the passing of the
enactment.
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The above rule of statutory
construction acknowledges the prior rule of statutory construction. What is said may be intended as an example,
and as the prior rule observes, a partial list may be an example of a CLASS of items.
HOWEVER, that is not the
case when the corral "encloses" a specific
list of items.
"Designatio unius est
exclusio alterius, et expressum facit cessare tacitum: The designation of one is the exclusion of
the other; and what is
expressed prevails over what is implied."
Black's 7th edition.
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Thus the TERM defined can be
the name of a CLASS of items intended OR the name of a LIST of items
intended. Thus in the one case the term is a term of LIMITED expansion,
and the other, the term is a term of LIMITATION.
Internal Revenue Code
Sec. 3401. Definitions
(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.
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The corral "encloses" a CLASS. The CLASS is defined by the list of
items in the first sentence. The first sentence DOES NOT enclose any item other than a
government paid worker.
The term "employee" includes; (encloses; corrals);
- an officer of the United States;
- an employee of the United States;
- an elected official of the United States;
- an officer of the District of Columbia;
- an employee of the District of Columbia;
- an elected official of the District of Columbia;
- an officer of a political subdivision of the United
States;
- an employee of a political subdivision of the United
States;
- an elected official of a political subdivision of the
United States;
- an officer of a political subdivision of the District
of Columbia;
- an employee of a political subdivision of the
District of Columbia;
- an elected official of a political subdivision of the
District of Columbia;
- an officer of a corporation.
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I did not place the "state" addressed
in the IRC section in the above list because the same game of "includes
and including" is going on in the definitions of the term "state".
Internal Revenue Code
Sec. 3401. Definitions
(c) Employee
The term "EMPLOYEE" also
includes an officer of a
corporation.
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In the second sentence, the
use of includes is in the capacity of a plus sign. It ADDS an item to the previously defined CLASS. Pop-up
info on a "corporation" to consider in regard to "an officer of a corporation."
If the dictionary definition
ruled, there would be no need to define employee as including an
employee of the United States, a State, or any political subdivision
thereof... Since such a government employee is already contained within
the dictionary definition of
employee.
Let us apply the section
7701(c) parse to the statutory definition of an employee shown in IRC
3401.
The terms "includes" and
"including" shall not exclude other things within the meaning of the
term defined.
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The term defined is a CLASS
of items.
The terms "includes" and
"including" shall not exclude other things within the meaning of the
CLASS defined.
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That CLASS is government
employees.
The terms "includes" and
"including" shall not exclude other things within the meaning of the
government employees defined.
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The things required to NOT
be excluded are other government workers.
| The terms "includes" and
"including" shall not exclude other government workers within the
meaning of the government employees defined. |
Internal Revenue Code
Sec. 3401. Definitions
(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.
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"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 operation so as to
embrace matters not so 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 (1917)
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- It is the established rule not to extend taxing
statutes by implication.
- It is the established rule not to extend taxing
statutes beyond the clear language used.
- It is the established rule not to embrace matters not
so specifically pointed out in the taxing statutes.
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If includes and including is
always expansive, then why does section 61 state:
| ... gross income means all
income from whatever source derived, including (but not limited
to) the following items: |
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