William Larsen

Which interpretation do you think is correct?

June 23, 2005 the Secretary's Interpretation

"Section 6109(d) specifies that the SSN issued to an individual is the identifying number of the individual, except as otherwise specified under applicable regulations. The regulations provide that an individual required to furnish a TIN must use an SSN unless the individual is not eligible to obtain an SSN"

I myself disagree with this interpretation based on:

Section (d)
"Use of a Social Security Number. The social security account number issued to an individual for purposes of section 205(c)(2)(A) of the Social Security Act shall, except as shall otherwise be specified under regulations of the Secretary, be used as the identifying number for such individual for purposes of this title."

In construing a statute, courts generally seek the plain and literal meaning of its language. See United States v. Locke, 471 U.S. 84, 93, 95-96 (1985); United States v. American Trucking Associations, Inc., 310 U.S. 534, 543 (1940). For that purpose, courts generally assume that Congress uses common words in their popular meaning. See Commissioner v. Groetzinger, 480 U.S. 23, 28 (1987), affg. 771 F.2d 269 (7th Cir. 1985).

In deciding whether the regulation comports with the statute’s plain language, we look to the ordinary usage or settled meanings of the words used in the statute by Congress. See Lynch v. Alworth-Stephens Co., 267 U.S. 364, 370 (1925). There is a strong presumption that Congress expresses its intention through the language it chooses. See INS v. Cardoza- Fonseca, 480 U.S. 421, 432 n.12 (1987).

A regulation may not contradict the unambiguous language of a statute. See Citizen’s Natl. Bank v. United States, 417 F.2d 675 (5th Cir. 1969); Hefti v. Commissioner, 97 T.C. 180, 189 (1991), affd. 983 F.2d 868 (8th Cir. 1993).

Where the statute’s language is plain, the language is where the interpretive task should end, and the sole function of the courts is to enforce such language according to its terms. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989); United States v. Merriam, 263 U.S. 179, 187-188 (1923)(stating that tax statutes are not to be extended by implication beyond the clear import of the language used).

The title of Section (d) is "Use of a social security account number." "Use" infers a privilege. Prior to being able to use something, that something must exist. The title of Section (c) is "Requirement of Information." "Requirement" infers mandatory or necessity. Clearly Congress knows the difference between requirement and use. Had Congress intended the Social Security Account number to be mandatory, they would have used “requirement of” instead of “use of” a social security account number. Use infers a privaledge, not a requirement.

Statute 6109 section (d) has key words with simple common meanings. The word "issued" means to publish. "Individual" is normally used to refer to an individual person as opposed to a larger social group or as distinguished from others by some special quality. "Purpose" is what something is used for; intent. "Except" means to exclude from a list, statement or category; a change to the rule. "Otherwise" means not the same one or ones already mentioned or implied; something else, anything else, contrary to.

The phrase “The Social Security account number issued to an individual” clearly refers to an individual who has been issued a social security number. It separates or distinguishes an individual who has a SSN from a larger group such as "anyone." The phrase ”for purposes of section 205(c)(2)(A) of the Social Security Act” clearly identifies the intent of the social security number. The intent of this section is to have the Commissioner of Social Security keep track of wages earned with the intent of determining benefits if any. The Social Security Administration publicly states applying for a social security number is voluntary and that there is no federal law requiring an individual apply for such number.

Requiring an individual apply for a SSN under IRS regulations would no longer be for purposes of section 205(c)(2)(A) of the Social Security Act, but for purposes of the Internal Revenue Code.

The phrase “be used as the identifying number for such individual” when combined with the previous phrases, clearly means an individual who has a social security number shall use such number as their identifying number. In plain language, the default identifying number for those who have been issued a social security number is their social security number. Section (d) does not cover nor includes those who do not have a social security number.

The plain language is clear. Combining the phrases yields “The social security account number issued to an individual for purposes of section 205(c)(2)(A) of the Social Security Act shall be used as the identifying number for such individual for purposes of this title.” These combined phrases require the secretary to require an individual who has been issued a social security account number to use said number as their identifying number.

The IRS alleges the phrase “except as shall otherwise be specified under regulations of the Secretary” is its legal authority to write regulations that require an individual eligible for a social security number to use such number as their identifying number. There are two words that contradict this meaning. The word “except” means to exclude from a list, statement or category. “Otherwise” means not the same one or ones already mentioned or implied: something else, anything else, or contrary to. The Secretary is authorized to make an exception to the rule of requiring those who have been issued a Social Security Number. The secretary is authorized to exclude the social security number from the list of identifying numbers and regulate something different or something else as the identifying number if the secretary chooses to do so. It does not authorize expanding the requirement to those who are eligible for a social security number, but have not been issued one or who do not want one. The plain language meaning of this phrase authorizes the Secretary to regulate the non-use of the Social Security number for those who have been issued a social security account number. The secretary is given a choice: Use the social security number that has been issued to individuals or regulate something else.

Section (c) Requirement of information. For purposes of this section, the Secretary is authorized to require such information as may be necessary to assign an identifying number to any person.

The word “any” means to include all, nothing is excluded or exempted. The plain language of this section requires the Secretary to assign an identifying number to any person.

posted by William Larsen @ 3:53 AM