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phrase “in the gross income”. Gross income is a legal concept
and not a reporting position. The term “gross income” has the
general definition set forth in section 61(a), and, unless the
word "included" is used in an unusual sense, it is a question of
law whether or not any particular receipt is included or excluded
from gross income. If context is to govern meaning, then,
relying on the “plain and common meaning of that text [sec.
83(h)]”, I conclude that the meaning of the phrase “included in
the gross income of the [service provider]” means included as a
matter of law. Nothing in the majority’s description of
Congressional purpose for section 83 (“primarily to set forth
rules on the tax treatment of deferred compensation arrangements
known as restricted stock plans)” leads me to believe that
Congress intended the word "included" in section 83(h) to have an
unusual meaning. The majority cites S. Rept. 91-552, 1969-3 C.B.
423 (S. Rept. 91-552 (1969)), wherein it is stated:
The allowable deduction is the amount which the
employee is required to recognize as income. The
deduction is to be allowed in the employer’s accounting
period which includes the close of the taxable year in
which the employee recognizes the income. * * * [1969-
C.B. at 502; emphasis added.]
On its face, the language of S. Rept. 91-552 is ambiguous. In
the income tax law, the word “recognize” is a term of art,
connoting a noncognitive act--gain or loss being recognized “to”
a person, not “by” a person. See, e.g., secs. 361(a), 731(a) and
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