Larry G. and Helen M. Horst - Page 4




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          trial, respondent conceded that $1,572 in Tier I benefits                   
          represented payment for a disability and is, therefore,                     
          nontaxable.  With respect to the Tier II benefits, respondent               
          conceded that the 1996 taxable benefit should be reduced by                 
          $1,375, an amount received by petitioner prior to 1996, and by              
          $782, an amount which represents petitioner’s contribution.                 
          Therefore, respondent’s position at trial was that $4,194 of Tier           
          II benefits is taxable income in 1996.  Petitioner did not                  
          present any legal or factual argument in opposition to                      
          respondent’s position.                                                      
               Since 1974, benefits received by railroad retirees have been           
          divided into two programs, identified as Tier I and Tier II                 
          benefits.  Tier I benefits are essentially the equivalent of                
          Social Security benefits and are distributed in the same amount             
          as Social Security benefits.  Tier I benefits are taxed under the           
          provisions of section 86.  If, however, Tier I benefits are paid            
          as compensation for injuries or sickness, the payments are not              
          taxable pursuant to section 104.  Tier II benefits, which are in            
          the nature of pension benefits, are taxed under the provisions of           
          section 72(r).  See Ernzen v. United States, 875 F.2d 228 (9th              
          Cir. 1989); Wallers v. United States, 847 F.2d 1279 (7th Cir.               
          1988); Bradley v. Commissioner, T.C. Memo. 1991-578.                        
               Analyzing the corresponding amounts of payments received by            
          petitioner, as listed above, we note that petitioner’s Tier II              






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