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in such property are transferable or are not subject to a
substantial risk of forfeiture. Section 83(h) allows an employer
to deduct an amount equal to the amount "included" under section
83(a).
Judge Ruwe's substitution of the word "includible", Judge
Ruwe's dissent pp. 39-40, for the word "included" is at odds with
our usual understanding of these and analogous terms. I agree
with the majority that the "ed" ending and the "ible" (or "able")
ending have different meanings. The "ed" ending refers to
something done in fact, e.g., an expense "deducted", income
"reported", or an item "recognized" in computing gross income.
Majority op. pp. 8-9. The "ible" (or "able") ending refers to
something legally required, such as "reportable" income, or
permitted, such as a "deductible" expense. Id. Consistent with
those usual meanings, the majority properly reads "included" to
require that the amount has in fact been included in income.
Majority op. p. 8.
Section 83(a) says that the fair market value of certain
property "shall be included" in the gross income of a service
provider in the first year the property is not subject to a
substantial risk of forfeiture. The majority (majority op. p. 7)
and Judge Ruwe's dissent p. 39 correctly point out that section
83(a) imposes a legal obligation on the recipient of property.
Congress could also have imposed that obligation by saying that
the fair market value of the property is "includible" in the
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