                           129 T.C. No. 18



                     UNITED STATES TAX COURT



       TOBIAS WEISS AND GERTRUDE O. WEISS, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 3521-07.                 Filed December 26, 2007.



     Tobias Weiss, for petitioners.

     Frank W. Louis, for respondent.



          Held: Qualified dividends are properly included
     in the calculation of alternative minimum tax.



                               OPINION


     THORNTON, Judge:   The sole issue for decision in this case

is whether petitioners properly excluded qualified dividends in

calculating their 2005 alternative minimum taxable income.
                                 - 2 -

                              Background

     The parties have stipulated all the relevant facts, which we

incorporate herein by this reference.      When they petitioned the

Court, petitioners resided in Connecticut.

         On line 9b of their 2005 Form 1040, U.S. Individual Income

Tax Return, petitioners reported $24,376 of qualified dividends.1

They did not, however, include this amount in the $265,408 which

they reported as taxable income and upon which they reported tax

of $68,809.     Instead, they separately computed $3,656 of tax on

the qualified dividends (15 percent of $24,376), which they

designated by handwritten notation as a “Qualified Dividend Tax”

on line 45 of Form 1040, which calls for the amount of

“Alternative minimum tax”.     Adding this amount to the $68,609 of

tax that they had computed on their reported taxable income, they

reported total tax of $72,266.

     Respondent treated petitioners’ omission of their qualified

dividends from taxable income as a “math error”.     After taking

into account this and other “math errors”, respondent determined

that petitioners’ taxable income was $315,532 rather than the

$265,408 that they had reported.2    Pursuant to section 6213(b),


     1
       Monetary amounts in this Opinion have been rounded to the
nearest dollar.
     2
       The other “math errors” related to petitioners’ Schedule
E, Supplemental Income and Loss, expenses and the calculation of
the taxable amount of their Social Security income. At trial,
                                                   (continued...)
                               - 3 -

respondent summarily assessed $80,330 of tax on this “corrected”

taxable income, after making the “math error” adjustments and

associated mathematical adjustments.3    Using this same

“corrected” taxable income, respondent also recomputed

petitioner’s alternative minimum tax.    By statutory notice of

deficiency, respondent determined that petitioners had a

resulting deficiency of $6,073 (apart from the tax that

respondent had summarily assessed pursuant to section 6213(b)).

                            Discussion

     Petitioners contend that they correctly reported their

qualified dividends on their 2005 Form 1040 and correctly

calculated and paid tax on those qualified dividends at the rate

of 15 percent.4   Petitioners contend that respondent erred in

determining that the qualified dividends should be included in

the calculation of their alternative minimum tax.




     2
      (...continued)
petitioners conceded these two other math errors.
     3
       Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year at issue.
     4
       In summarily assessing petitioners’ tax on their
“corrected” taxable income, respondent also computed tax on the
qualified dividends at 15 percent and credited petitioners with
the 15-percent tax they had separately reported on line 45. In
this proceeding, petitioners do not challenge the summary
assessment, which is beyond the scope of our jurisdiction. See
sec. 6213(b)(1); Meyer v. Commissioner, 97 T.C. 555, 559-560
(1991).
                                 - 4 -

     Petitioners are mistaken that qualified dividends may be

disregarded in the calculation of alternative minimum tax.

Alternative minimum tax is imposed, in addition to all other

taxes imposed under subtitle A, upon a taxpayer’s alternative

minimum taxable income (AMTI).    Sec. 55(a); Allen v.

Commissioner, 118 T.C. 1, 5 (2002).      AMTI is defined as the

taxpayer’s “taxable income” determined with adjustments provided

in sections 56 and 58, and increased by items of tax preference

described in section 57.   Sec. 55(b)(2); Merlo v. Commissioner,

126 T.C. 205, 209 (2006), affd. 492 F.3d 618 (5th Cir. 2007).

The Code generally defines “taxable income” as “gross income”

less allowable deductions.   Sec. 63(a).    Section 61 expressly

defines “gross income” to include, without limitation,

“Dividends”.   Sec. 61(a)(7).

     In the computation of alternative minimum tax, qualified

dividends receive special treatment, insofar as they enter into

the net capital gain of noncorporate taxpayers.     That special

treatment essentially caps the amount of alternative minimum tax

by reference to a formula that taxes net capital gain at rates

that mirror preferential rates that apply for regular tax

purposes under section 1(h).5    Contrary to what petitioners


     5
       More particularly, the alternative minimum tax is equal to
the excess of tentative minimum tax over the regular tax. Sec.
55(a). For a noncorporate taxpayer, the tentative minimum tax is
generally imposed at graduated 26 percent and 28 percent rates on
                                                   (continued...)
                                  - 5 -

appear to believe, however, this special treatment does not mean

that qualified dividends may be disregarded altogether in

calculating alternative minimum tax.      Petitioners erroneously

omitted their qualified dividends from gross income, which

contributed to an understatement of their AMTI, which gave rise

to a deficiency as determined in the statutory notice.6

     Petitioners appear to believe that they reported their

qualified dividends, and the tax thereon, consistent with the

literal terms of Form 1040, which they construe as treating

“qualified dividends” separately from “ordinary dividends” and

including only the latter in the calculation of adjusted gross

income.7   Whatever ambiguity might be found in Form 1040 and its


     5
      (...continued)
the amount by which alternative minimum taxable income exceeds an
exemption amount (the “taxable excess”). Sec. 55(b)(1)(A).
Generally speaking, however, and ignoring certain qualifications
not relevant here, if a taxpayer has net capital gain, the amount
of tentative minimum tax thus determined cannot exceed the amount
that would be determined if the net capital gain were excluded
from the foregoing formula and instead were taxed at rates that
mirror those applicable for regular tax purposes under sec. 1(h).
Sec. 55(b)(3).
     6
       The record suggests that other items affecting the
computation of petitioners’ AMTI included the disallowance of
miscellaneous itemized deductions, see secs. 56(b)(1)(A)(i) and
67(b), and the disallowance of personal exemptions, see sec.
56(b)(1)(E). Petitioners have not challenged these computational
matters.
     7
       Form   1040 calls   for “Ordinary dividends” to be reported on
line 9a, to   be tallied   in the calculation of adjusted gross
income; the   form calls   for “Qualified dividends” to be reported
on line 9b,   which does   not extend into the calculations column.
                                                       (continued...)
                                 - 6 -

instructions in this regard, however, cannot affect the operation

of the tax statutes or petitioners’ obligations thereunder.       See

Casa De La Jolla Park, Inc. v. Commissioner, 94 T.C. 384, 396

(1990) (tax form instructions cannot be relied upon as

authoritative sources of law).

     To reflect the foregoing,


                                         Decision will be entered for

                                 respondent.




     7
      (...continued)
Neither Form 1040 nor the instructions thereto expressly say that
the amount of qualified dividends listed on line 9b should also
be included among ordinary dividends on line 9a. Any confusion
on this score is dispelled, however, by the instructions
accompanying Form 1099-DIV, Dividends and Distributions, on which
dividends are supposed to be reported to recipients. These
instructions make clear that “Qualified dividends”, reported on
Box 1b of the form, are a “portion” of the amount reported in box
1a as “Total ordinary dividends”. The recipient is directed to
include the amount of “Total ordinary dividends” on line 9a of
Form 1040.
