Willie Clayborn, Jr. and Jacqulyn A. Clayborn - Page 4




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               The inclusion of Social Security benefits in gross income is           
          governed by section 86.  Social Security disability benefits are            
          treated in the same manner as other Social Security benefits.               
          Sec. 86(d)(1); Thomas v. Commissioner, T.C. Memo. 2001-120.                 
          Taxpayers who file a joint return and whose modified adjusted               
          gross income plus half of the Social Security benefits received             
          is greater than $32,000 must include a portion of the benefits in           
          their income.  Sec. 86(a) through (c).  The portion, never                  
          exceeding 85 percent, varies according to a formula set forth in            
          section 86(a).  Petitioners had modified adjusted gross income of           
          at least $58,534, see sec. 86(b)(2), and received benefits of               
          $13,857.  Because their modified adjusted gross income plus half            
          their benefits exceeds $44,000 by at least $21,463, they must               
          include in income 85 percent of the benefits.  See sec. 86(a),              
          (c).  Thus, respondent is correct in his determination that                 
          petitioners must include in income 85 percent of the Social                 
          Security disability benefits, or $11,778.                                   
               Petitioners do not dispute receiving $13,857 in Social                 
          Security benefits.  Their sole argument is that the IRS has made            
          inconsistent rulings regarding whether the benefits are taxable.            
          They assert that an IRS employee agreed that the benefits were              
          not taxable with respect to a prior year.  We note that the law             
          governing this area has changed over the years.  However, we need           
          not address whether the employee’s treatment was correct with               







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