Mitchell Wayne Andrew and Nancy Rae Patten - Page 6

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          portion of the benefits attributable to the previous taxable                
          years.  Accordingly, if no election is made by the taxpayer under           
          section 86(e), lump-sum distributions of Social Security benefits           
          are includable in the taxpayer’s gross income in the taxable year           
          the benefits are received.  Petitioners did not make an election            
          under section 86(e) with respect to the lump-sum Social Security            
          disability benefits received in 2000.                                       
               Allegations petitioners made in the petition and their                 
          presentation at trial suggest that petitioners do not dispute the           
          manner in which Social Security benefits are generally treated              
          for Federal income tax purposes.  Instead they argue that the               
          Social Security disability benefits here under consideration are            
          excludable from their income by virtue of section 104(a)(2).                
          Petitioners admit that they did not know how to treat the                   
          disability benefits for Federal income tax purposes.  According             
          to petitioners, in an informal contact made with one of                     
          respondent’s employees they were advised that the benefits were             
          excludable from income under section 104(a)(2).  They further               
          contend that their uncertainty as to how to treat the disability            
          benefits resulted in the late filing of their 2000 return.                  
               Section 104(a)(2) excludes from gross income amounts                   
          received in damages, by suit or settlement, “on account of                  
          personal physical injuries or physical sickness”.  In determining           
          whether damages received are excludable under section 104(a)(2),            






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