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provision. While the term "includible" is interchangeable with
"included" in section 83(a) without affecting the result, it is
definitely not interchangeable in section 83(h). The effect of
applying the maxim regarding consistent use of terms here would
be to override the plain meaning of the term "included" in
section 83(h) and to significantly alter the meaning of section
83(h).
II.
The 1995 Regulations
Judge Ruwe's dissent does not take into account the 1995
amendments to the section 83(h) regulations or the accompanying
preamble, both of which shed important light on the issue in
dispute here.
The 1995 regulations under section 83(h) provide a safe
harbor under which a service provider is deemed to have included
an amount as compensation in gross income if the person for whom
the services were performed timely meets Form W-2 or Form 1099
reporting requirements under sections 6041 or 6041A. Sec. 1.83-
6(a)(2), Income Tax Regs. The preamble accompanying the 1995
amendments to those regulations states that, absent qualification
under that special rule, the employer must show that the employee
"actually included" the amount in income in order to support its
deduction of the amount. T.D. 8599, 1995-2 C.B. 12, 12-13.
The 1995 amendments to the section 83(h) regulations and the
preamble accompanying them show that the Commissioner's
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