- 39 -
Commissioner continued to rely on Rev. Rul. 77-102, supra, in
issuing Tech. Adv. Mem. 2002-11-005 (Mar. 15, 2002) relating to
facts substantially identical to those of this case. See, e.g.,
Rauenhorst v. Commissioner, supra at 170. The fact that the
regulation was promulgated after the revenue ruling suggests the
Commissioner intended that section 31.3121(b)(20)-1(a)(2),
Employment Tax Regs., be consistent with Rev. Rul. 77-102, supra.
See Natl. Muffler Dealers Association v. United States, 440 U.S.
at 477; Peninsula Steel Prod. & Equip. Co. v. Commissioner, 78
T.C. 1029 (1982).
As it pertains to the subtraction of operating expenses, we
find Rev. Rul. 77-102, supra, is a reasonable interpretation of
the terms “depends” and “proceeds” in the statute and the
regulation. We find no significance in the failure of section
31.3121(b)(20)-1, Employment Tax Regs., to mention the
subtraction of operating expenses.
d. Section 3121(b)(20)(A) and the Canon “Expressio Unius
Est Exclusio Alterius”
Under section 3121(b)(20)(A), crew members are not employees
if they receive cash payments that do not exceed $100 per trip,
are contingent on a minimum catch, and are paid solely for
additional duties (e.g., as mate, engineer, or cook) for which
additional cash remuneration is traditional in the industry.
Under the canon of construction “expressio unius est
exclusio alterius”, if a statute specifies certain exceptions to
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