Jack A. and Judith M. Davis - Page 4

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          to the contrary, it is clear under Federal tax law that Social              
          Security disability benefits are included in gross income to the            
          same extent as other Social Security benefits.  Sec. 86(d)(1);              
          Thomas v. Commissioner, T.C. Memo. 2001-120.  The amount of the             
          benefits includable in a taxpayer’s income depends upon the                 
          taxpayer’s filing status and income from other sources but never            
          exceeds 85 percent of the benefits received.  Sec. 86(a).  We               
          have reviewed respondent’s calculations and conclude that                   
          respondent was correct in determining that 85 percent of                    
          petitioners’ Social Security disability benefits are includable             
          in their gross income for the year 2000.                                    
               Petitioners argue that they “have a prenuptial agreement               
          that stipulates separate property, wages and/or earnings”.  We              
          interpret petitioners’ argument to be that, pursuant to the                 
          prenuptial agreement, their income should not be combined for               
          purposes of applying section 86.  Such an agreement has no effect           
          on the application of Federal tax law under the circumstances of            
          this case.  Petitioners elected to file a joint Federal income              
          tax return, and therefore their tax must be “computed on the                
          aggregate income and the liability with respect to the tax shall            
          be joint and several.”  See sec. 6013(d)(3).  Petitioners may not           
          revoke their election to file jointly after the expiration of the           
          time for filing the return.  See Ladden v. Commissioner, 38 T.C.            
          530 (1962); sec. 1.6013-1(a)(1), Income Tax Regs.                           






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