- 23 - 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 thePage: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Next
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