Sanford M. and Sally Kirshenbaum - Page 16




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          taxpayer’s Social Security benefits exceeds a certain base amount           
          or an adjusted base amount, then a portion of the taxpayer’s                
          Social Security benefits is includable in gross income and                  
          subject to Federal income tax.  Sec. 86(a) through (d).  The                
          includable portion, never exceeding 85 percent, varies according            
          to a formula set forth in section 86(a).  As relevant in the                
          present case for a joint return, the base amount is $32,000 and             
          the adjusted base amount is $44,000.  Sec. 86(c)(1)(B) and                  
          (2)(B).                                                                     
               Petitioner contends that the payments he received from the             
          Social Security Administration were nontaxable disability                   
          benefits.  On the other hand, respondent contends in the notice             
          of deficiency that “We have no indication that the $14,676 was              
          disability income from Social Security.”  We, however, need not             
          decide whether petitioner’s Social Security payments are properly           
          characterized as disability benefits.17  Assuming arguendo that             
          petitioner in fact received Social Security disability benefits,            
          our analysis of whether such payments are includable in                     
          petitioner’s gross income remains unchanged.  As stated above,              
          Social Security disability benefits are treated the same as other           
          Social Security benefits.  Sec. 86(d)(1); Thomas v. Commissioner,           



               17  Our decision on this issue does not depend on which                
          party has the burden of proof.  We note in passing, however, that           
          petitioner does not argue that sec. 7491(a) places the burden of            
          proof on the Commissioner here.                                             





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