On page 5 of her pleading, in her memorandum of law that is attached to the motion (the pages of which are not numbered, which I believe is another procedural no-no) , Ellen Dennis states that Hendrickson's interpretations of tax statutes is supported by (among other things) "case law regarding whether the term 'includes' is a term of limitation or expansion," with the following footnote (number 2):
Unfortunately, the court in Mobley never used the words "limitation," "expansion," or "excluded," and both the facts and the rationale for the decision are distinguishable from everything Hendrickson claims.Ellen Dennis wrote:One such case is that of Mobley v. Commissioner of Internal Revenue, 532 F.3d 491 (6th Cir. 2008) in which the United States Court of Appeals for the Sixth Circuit considered whether the definition of “courts” in 28 U.S.C.§610, which lists certain courts included in the definition, therefore excluded those courts not specifically listed and decided that all courts not listed were excluded from the definition.
In Mobley, the Tax Court decided that it did not have jurisdiction, and also decided that it could not transfer the case to a federal district court under the authority of 28 USC 1631, which empowers "a court as defined in section 610 of this title" to another such court when the first court lacks jurisdiction. The narrow issue in Mobley was whether the Tax Court is a court defined in 28 USC 610, which reads as follows:
The 6th Circuit begins its analysis as follows:As used in this chapter the word "courts" includes the courts of appeals and district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, the District Court of the Virgin Islands, the United States Court of Federal Claims, and the Court of International Trade.
532 F.3d at493 (emphasis added).6th Circuit wrote:The terms of § 610 at first glance plausibly point in opposite directions. Pointing in one direction, § 610 does not specifically mention the Tax Court, which suggests that it is not a court as defined in that section. Pointing in the other direction, § 610 talks about what courts are "include[d]" in that definition, which suggests the list is nonexhaustive and could well include a "court" like the Tax Court.
The highlighted language shows that the 6th Circuit recognized that the word "includes" usually does not exclude things not listed. This at least undercuts, if not contradicts, Hendrickson's conclusions.
The rest of the opinion discusses the history and context of section 610, and the most important factor to the 6th Circuit was that the "this chapter" referred to in section 610 is Chapter 41 of Title 28, which deals with the Administrative Office of the United States Courts, and section 610 defines the courts subject to that Office. But the opinion finds clear evidence that the Tax Court was never intended to be subject to the supervision of the Administrative Office.
At best, Mobley stands for the proposition that the word "includes" MIGHT be used (somewhat improperly) instead of the word "means," but this is not helpful to Hendrickson because:
1. The definition of "employee" upon which Hendrickson relies is in 3401(c), which begins, "For purposes of this chapter..." and "this chapter" is Chapter 24, "Collection of Income Tax at Source on Wages." But the definitions of "gross income" and "taxable income" for purposes of the federal income tax are found in Chapter 1.
2. The Mobley court was interpreting a section of Title 28, but section 3401(c) is in Title 26, which has its own specific definition of "includes" in section 7701(c) and that definition of "includes" is inconsistent with the conclusion of the Mobley court.
3. Finally, and perhaps most importantly, even if you could believe that the word "includes" in section 3401(c) was ambiguous, Hendrickson's claims would still fail because he has never done the kind of legislative and contextual analysis of the kind shown by the Mobley court to support its interpretation of 28 USC 610. For example, there are many provisions of section 3401 (such as the exclusion for wages paid "for domestic service in a private home") which make no sense, and are clearly meaningless, if section 3401 only applied to wages paid to government employees and corporate officers.
And a final note, which is that Mobley was decided in 2008. Unless Hendrickson has also perfected time travel, he could not possibly have relied upon the Mobley opinion in preparing his income tax returns for 2000 and 2002-2006, which are the years covered by the indictment.
