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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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