Comment by dataflow | Hacker News Reader

Comment by dataflow | Hacker News Reader

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> As a law prof once told me, "shall" can end up being ambiguous in court, despite the common understanding.

Perhaps it can be can be made ambiguous in some context if you try hard enough, but that doesn't mean it commonly is so, or that it is here.

> I'm sure this isn't the best tutorial on the topic but it gives you a taste: https://www.barandbench.com/columns/shall-shocked-the-use-of...

Thanks, but the only thing that link gave me a taste for is terrible strawman arguments. (Or a severe lack of understanding of basic English.)

If you have "shall be" in a sentence, then that phrase is the verb of interest whose ambiguity (or lack thereof) you must examine, not the "shall" on its own. Claiming "shall" is ambiguous because it changes meaning when you put "be" after it makes no sense. It comes across as the kind of argument a first-grader would make.

They write: If the substitution rule is applied in the sentence: “The employee shall be reimbursed all expenses”, you would get: “The employee has a duty to be reimbursed all expenses”. This created ambiguity for the simple reason that the intent appeared to state an entitlement of the employee and not to impose a duty on the employee.

Do they lack common sense when reading this, or do they struggle with English? It's like claiming "I have a carrot" is somehow ambiguous because "I have been a carrot" means something entirely different. Does that sentence need disambiguation with "I possess a carrot" or "I have a carrot, but have not existed, as a carrot"? Are these serious arguments?

Agreed. Their analysis inappropriately conflates the syntactical subject of a sentence with the semantic agent of the sentence.

It also violates the fundamental rule that changing a sentence into the passive voice does not effect a semantic change.

"The employee shall be reimbursed [by the employer] for all expenses." must necessarily mean the same as "The employer shall reimburse the employee for all expenses."

I think that in the first (ambiguous) phrasing there is an implicit (common-sense?) understanding of: the employee shall be reimbursed for all expenses if the employee asks for it or wants it, ie the employee has the right to ask for and only then the employer has the obligation to reimburse all expenses.

No, there is no reason to appeal to "common sense." It is the plain and unambiguous meaning of the text itself.

I think you may have been reading too many IETF documents.

Legal text doesn't come with a list of definitions that attempt to lock e.g. "shall" down in stone.

I rarely read IETF documents. But as a practicing lawyer for about 15 years, I've read, interpreted, drafted, advised on, and litigated countless uses of the word "shall" in agreements (as well as in statutes and regulations). In fact my first pro bono case in BigLaw, on behalf of a nonprofit in a corporate election case, hinged on it. Shall is not this mysterious ambiguous beast the link makes it out to be.

I will absolutely defer to your judgement then.

Which leaves the problem of intent ... is what I termed "way #2" above what was intended? Or is this just sloppy use of language with unintended side effects?

> If you have "shall be" in a sentence, then that phrase is the verb of interest whose ambiguity (or lack thereof) you must examine, not the "shall" on its own. Claiming "shall" is ambiguous because it changes meaning when you put "be" after it makes no sense. It comes across as the kind of argument a first-grader would make.

But it's the same ambiguity, isn't it? Essentially whether "shall" creates an obligation for the taxpayer to claim it as R&D expense or an obligation for the IRS to accept it as R&D expense if the taxpayer so claims it, the equivalent of whether "shall" applies to the employee or the employer.

And in both cases the existence of the ambiguity is bolstered by the fact that the overly literal interpretation leads to a ridiculous result.

> But it's the same ambiguity, isn't it? Essentially whether "shall" creates an obligation for the taxpayer to claim it as R&D expense or an obligation for the IRS to accept it as R&D expense if the taxpayer so claims it, the equivalent of whether "shall" applies to the employee or the employer.

What? No. How are you reading "the taxpayer shall do X" to mean "the IRS must do X"?

The text is incredibly straightforward: https://www.law.cornell.edu/uscode/text/26/174

> (1) except as provided in paragraph (2), no deduction shall be allowed for such expenditures, and

> (2) the taxpayer shall—

> (A) charge such expenditures to capital account, and

> (B) be allowed an amortization deduction of such expenditures ratably over the 5-year period [...]

The crux here is: what are "the purposes of this section" ?

Does it

(a) define the rules and conditions under which a taxpayer may claim a deduction on R&D expenditure

or

(b) define the obligations of the taxpayer with respect to anything that Sec 174 defines as R&D expenditure (i.e. you must report it as such, charge it to a capital account, claim an amortization deduction)

AFAIK, nothing the IRS or Congress has said thus far has clarified this.

Here's another article with possibly better legal citations: https://www.lexology.com/library/detail.aspx?g=aeee1c5f-28d7...

(I'm not saying it's good or bad, just passing on information.)

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