Peter John Mihok - Page 6




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          his excess earnings during 1998, he should not be required to               
          include in income the net benefits paid to him during 1998.                 
               The Court rejects petitioner's argument.  Section                      
          86(d)(2)(A) provides:                                                       

               (2) Adjustment for repayments during year.--                           
                    (A) In general.–-For purposes of this section, the                
               amount of social security benefits received during any                 
               taxable year shall be reduced by any repayment made by the             
               taxpayer during the taxable year of a social security                  
               benefit previously received by the taxpayer (whether or not            
               such benefit was received during the taxable year).                    

          Thus, it is evident from section 86(d)(2)(A) that a taxpayer is             
          allowed a reduction, for tax purposes, of any repayment of                  
          benefits made during the taxable year; however, there is no                 
          provision in the statute that allows an additional reduction for            
          excess benefits paid that year due to the taxpayer's excess                 
          earnings that year.  Petitioner's employment earnings during 1998           
          were not known until the close of that year and only then could             
          it be determined whether those earnings constituted excess                  
          earnings that would cause an overpayment of Social Security                 
          benefits.  It is well settled that income is taxable when it has            
          been actually or constructively received.  Poczatek v.                      
          Commissioner, 71 T.C. 371, 376 (1978) (citing N. Am. Oil Consol.            
          Co. v. Burnet, 286 U.S. 417 (1932)).  Petitioner actually                   
          received $10,192 in Social Security benefits during 1998.  That             






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