Electronic Arts, Inc. and Subsidiaries - Page 51




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          historical development increases the likelihood that the Congress           
          was actually aware that “active conduct of a trade or business”             
          figured in both the WHTC provisions and in section 936.                     
               In light of the foregoing, we reject respondent’s contention           
          that WHTC cases “are not applicable to a section 936 issue”, and            
          we conclude that respondent’s citation of Norfolk S. Corp. v.               
          Commissioner, supra, does not provide any support for                       
          respondent’s contention.  On the contrary, we regard WHTC                   
          opinions as authority with respect to the meaning of identical              
          language in section 936.                                                    
                              ii. Expressio Unius * * *                               
               Respondent contends as follows:                                        
                    “There is a venerable rule of statutory construction              
               which states: expressio unius est exclusio alterius (the               
               expression of one thing implies the exclusion of another               
               thing).”  Section 936(a)(2)(B) does not refer to attribution           
               of activities, such as contract manufacturing; however,                
               section 936(h)(5)(B)(iii)(II) does refer to “contract                  
               manufacturing.”  “Where Congress includes particular                   
               language in one section of a statute but omits it in another           
               section of the same [statute], it is generally presumed that           
               Congress acts intentionally and purposely in the disparate             
               inclusion or exclusion.”                                               
                    In choosing the words “such domestic corporation” as              
               the statutory standard in section 936(a)(2)(B), without                
               reference to attribution of another’s activities, such as              
               the activities of a contract manufacturer, Congress limited            
               consideration exclusively to the domestic corporation’s                
               conduct in the possession.  In other words, the activities             
               of others cannot be attributed to the domestic corporation             
               for purposes of section 936(a)(2)(B).  [Citations omitted.]            
               In effect, the “expressio unius” rule to which respondent              
          draws our attention is merely the obverse of what we have                   





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