- 59 -
the majority would be obligated to construe “included” in section
83(h) to mean “includable”, as the general rule does, and as I
would do. That is precisely why the majority is compelled to
conclude that the statute is unambiguous despite the fact that it
is apparent that reasonable people can find, and, indeed, have
found, different meaning within it.
If section 83(h) is ambiguous, as I am prepared to concede,
then the general rule is valid as a permissible (reasonable)
interpretation of section 83(h) because it implements the
expression “included in the gross income [of the service
provider]” consistently with a contextual analysis of section
83(h) (taking into account either the language of section 83(h)
alone or both that language and the language of S. Rept. 91-552).
If section 83(h) is not ambiguous, and is to be construed to mean
“included as a matter of law”, as I conclude from context, then
the general rule is still valid because it is not in conflict
with the statute. Whether “included in the gross income” in
section 83(h) means “included as a matter of law” either because
it is (1) unambiguous or (2) ambiguous and permissibly
interpreted by the general rule, the special rule would be
invalid because it conditions an employer’s deduction on
withholding.
WHALEN, J. agrees with this dissent.
Page: Previous 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 Last modified: May 25, 2011