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HALPERN, J., dissenting: The majority concludes: “An
amount is deductible under section 83(h) in the year that the
corresponding income is ‘included’ in the recipient employee’s
income, which means to us that the amount is taken into account
in determining the tax liability of the employee for that year.”
The majority explains: (1) “When read in view of the legislative
intent for section 83, the text of section 83(h) is unambiguous”
and (2) “Given the clarity of this text, our inquiry starts and
ends with the statutory text, and we apply the plain and common
meaning of that text.” The majority is correct that the word
“include” has the plain, common, and unambiguous meaning ascribed
to it by the majority: i.e., “To consider with or place into a
group, class, or total”. The American Heritage Dictionary of the
English Language 913 (3d ed. 1992). The question, however, is
not whether Congress is skilled in rhetoric, or used the word
"included" unambiguously in section 83(h), but what the word
"included" means in the context of section 83(h). The Supreme
Court has said: “Ambiguity is a creature not of definitional
possibilities but of statutory context”. Brown v. Gardner, 513
U.S. 115, 117 (1994) (citing King v. St. Vincent's Hosp., 502
U.S. 215, 221 (1991) (“[T]he meaning of statutory language, plain
or not, depends on context.”) All of the majority, Judge Ruwe,
and Judge Colvin have failed to give sufficient weight to the
contextual relationship between the word “included” and the
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