Electronic Arts, Inc. and Subsidiaries - Page 52




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          discussed supra note 9 and accompanying text.  Ordinarily, in               
          statutes and other legal documents, it is presumed that if the              
          drafter uses the same terminology in several places then the                
          drafter intends the same meaning in each such place.  By the same           
          token it is presumed that if the drafter varies the terminology             
          then the drafter intends that the meaning also varies.  Or, as              
          Dickerson put it in the Interpretation and Application of                   
          Statutes 224 (1975), it is presumed that the drafter “has                   
          committed neither ‘elegant variation’ nor ‘utraquistic                      
          subterfuge’.”                                                               
               A problem with the “expressio unius” rule is that, although            
          the rule tells us that a different meaning is probably intended,            
          it often is difficult to determine what that different meaning              
          is.  See, e.g., Black’s Law Dictionary 602 (7th ed. 1999).  The             
          instant cases illustrate how the party that invokes this rule can           
          find that the rule favors the other side.  See, e.g., Ginsburg,             
          “Making Tax Law Through the Judicial Process,” 70 A.B.A.J. 74, 76           
          (1984).                                                                     
               In general, section 936(h) deals with the treatment of                 
          intangible property income.  It provides that the domestic                  
          shareholders of a qualified domestic corporation which elects the           
          possession tax credit are required to include in their gross                
          income as of the close of the electing corporation’s tax year               
          their pro rata share of the possessions corporation’s intangible            






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