Virgilio Dela Cruz and Milagros Dela Cruz - Page 4




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          Nerilyn A. Dela Cruz, received Social Security benefits of                  
          $3,931.  Petitioners filed a joint Federal income tax return in             
          1997 and reported $70,601 in adjusted gross income in that year,            
          excluding the Social Security benefits.  Respondent issued                  
          petitioners a statutory notice of deficiency with the                       
          determination that they had unreported income of $9,619 from                
          these Social Security benefits.2                                            
               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).  Benefits generally are              
          included in income in the year in which they are received, even             
          if the benefits are attributable to prior years.  Secs. 86(e),              
          451(a).  The portion included in income, never exceeding 85                 
          percent, varies according to a formula set forth in section                 
          86(a).  Petitioners had modified adjusted gross income of at                
          least $70,601, see sec. 86(b)(2), and received benefits of                  
          $11,316.  Because their modified adjusted gross income plus half            


          2Respondent also determined that petitioners had unreported                 
          income of $38 in dividends.  Petitioners concede this amount.               





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