Dovid and Marcia L. Goldfarb - Page 5

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          compensation for personal injuries or sickness” generally are not           
          included in gross income.   Sec. 104(a)(1).                                 
               Petitioners contend that the Social Security disability                
          benefits constitute workmen’s compensation within the meaning of            
          section 104(a).  We have previously held, however, that Social              
          Security disability benefits are not workmen’s compensation.                
          Green v. Commissioner, supra.  A statute is in the nature of a              
          workmen’s compensation act if it allows disability payments                 
          solely for service-related personal injury or sickness.  Haar v.            
          Commissioner, 78 T.C. 864, 868 (1982), affd. 709 F.2d 1206 (8th             
          Cir. 1983); Byrne v. Commissioner, T.C. Memo. 2002-319.  The                
          Social Security Act does not qualify because it allows for                  
          disability payments regardless of whether the individual was                
          injured in the course of employment.  See 42 U.S.C. sec.                    
          423(d)(1)(A)(2000); Green v. Commissioner, supra.  Accordingly,             
          the Social Security benefits that petitioner received are                   
          includable in gross income as provided by section 86.                       
               Section 86 taxes Social Security benefits pursuant to a                
          formula.  Married taxpayers filing a joint return whose modified            
          adjusted gross income plus one-half of their Social Security                
          benefits exceeds an “adjusted base amount” of $44,000 must                  
          include up to a maximum of 85 percent of their Social Security              
          benefits in gross income.  Mikalonis v. Commissioner, T.C. Memo.            







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