- 56 - 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) andPage: Previous 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 Next
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