'Includes' as non-exclusive: Helvering v. Morgan's settled the question at apex in 1934
The proposition
The construction rule for “includes” and “including” in tax-statute definitions — whether the listed items are exhaustive (defining the term to mean only the listed things) or expansive (the listed things added to whatever the term ordinarily means) — was substantively decided by the Supreme Court in 1934, in Helvering v. Morgan’s, Inc., 293 U.S. 121 (1934). The Court held: non-exclusive.
What the Court actually said
The case turned on the meaning of “includes” in a Revenue Act of 1928 definition. The Court’s treatment of the construction question:
“‘includes’ imports a general class, some of whose particular instances are those specified in the definition.”
“The particular is not necessarily a substitute for the general term, excluding more general meanings included within its scope.”
The Court further relied on Section 2(b) of the Revenue Act itself, which provided that “‘includes’ and ‘including’ … shall not be deemed to exclude other things otherwise within the meaning of the term defined.”
Section 2(b) of the 1928 Revenue Act is the precursor to the current 26 U.S.C. § 7701(c). The construction rule the Supreme Court construed in 1934 has been continuously preserved through three IRC re-enactments — the IRC of 1939, the IRC of 1954, and the IRC of 1986 — appearing in substantively identical form across each. The current statutory text is:
“The terms ‘includes’ and ‘including’ when used in a definition contained in this title shall not be deemed to exclude other things otherwise within the meaning of the term defined.” (26 U.S.C. § 7701(c).)
Why this matters
A substantial portion of alternate-tax theory — most systematically Paul Andrew Mitchell’s The Federal Zone (1992; 11th ed. 2001) and dozens of derivative texts — depends on reading “includes” in IRC definitions as restrictive. Under that reading, “State shall be construed to include the District of Columbia” (§ 7701(a)(10)) is treated as if it limited “State” to the District of Columbia, excluding the fifty states. The same move applied to “United States,” “employee,” “employer,” “wages,” and other defined terms produces the territorial-limits theory at the heart of the argument.
The restrictive reading is foreclosed by two independent authorities:
- 26 U.S.C. § 7701(c) — the IRC’s enacted construction rule, by its own text.
- Helvering v. Morgan’s, Inc., 293 U.S. 121 (1934) — Supreme Court precedent on substantively the same construction question, on the precursor statute § 2(b) of the 1928 Revenue Act.
The combination is what makes the answer durable. § 7701(c) alone would invite the rejoinder “Congress’s enacted construction rule is wrong on the canon” — a move that would, if successful, re-open the territorial-limits theory by attacking the statute rather than the canon’s application. Helvering forecloses that move at the apex tribunal, on the canon’s own terms, on substantively the same statutory question. The answer is binding on every federal court below.
The expressio unius reading
Helvering’s analysis fits squarely within the standard treatment of the expressio unius canon. The Court did not say the canon was inapplicable — it said the canon had been displaced by an express statutory construction rule (Revenue Act § 2(b)) and that, even on the canon’s own terms, “includes” imports a general class rather than restricting to enumerated instances.
That is exactly how the canon operates: as a defeasible presumption, displaceable by express legislative guidance and by context that signals non-exhaustive intent. The IRC’s “includes” formulations operate within both displacement triggers simultaneously — the statutory construction rule (Revenue Act § 2(b), now § 7701(c)) and the conventional drafter’s cue (“include” as expansive in legal English).
The impedance position
The construction-rule question was raised at the apex tribunal at a moment when receptivity for substantive statutory-construction arguments was OPEN — Helvering is a merits decision, not a frivolous-position dismissal. The Court engaged with the canon, engaged with the statutory text, and ruled. The answer has been binding precedent for over ninety years.
Subsequent re-raisings of the question — most prominently in the Federal-Zone-style tax-protester line of cases since the 1980s — get routed to circuit courts that apply the binding 1934 precedent together with § 7701(c). Some of those decisions engage substantively; many invoke the Crain doctrine of judicial non-engagement characteristic of post-Crain tax-protester treatment.
The pattern of circuit-court non-engagement is sometimes characterized in alternate-tax theory as suppression. The impedance framework provides a different reading: the question was substantively engaged at the appropriate level, by the appropriate tribunal, and answered. The post-Helvering procedural disposition by lower courts — applying binding apex precedent — is what apex precedent produces, not what suppression looks like.
Verdict
Supported. The construction rule for “includes” in IRC definitions is non-exclusive, on two independent grounds: the statute itself (26 U.S.C. § 7701(c)) and binding Supreme Court precedent (Helvering v. Morgan’s, Inc., 293 U.S. 121 (1934)) on substantively the same statutory question.