                   T.C. Summary Opinion 2011-59



                      UNITED STATES TAX COURT



         GARY T. PAYNE AND CARLINE T. DRAIN, Petitioners v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5405-10S.              Filed May 12, 2011.



     Gary T. Payne and Carline T. Drain, pro sese.

     Rachael J. Zepeda, for respondent.



     GERBER, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.1   Pursuant to section 7463(b), the

decision to be entered is not reviewable by any other court, and

this opinion shall not be treated as precedent for any other



     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue.
                                  -2-

case.     Respondent determined a $1,643 deficiency in petitioners’

2007 Federal income tax.     After concessions the sole issue for

consideration is whether petitioners may exclude from income

Social Security disability benefits (SSD benefits).

                              Background2

        Petitioners resided in Arizona when they timely filed their

petition.     In 2007 Ms. Drain received $14,526 in SSD benefits.

                              Discussion

     Petitioners have adamantly contended that SSD benefits are

not taxable.     In part, their argument is based on their belief

that the benefits have already been taxed and to tax them again

would be double taxation.     Their belief is based on the fact that

the Government collects their payments into the Social Security

system along with and in the same manner as the income tax and/or

that they made the payments with after-tax dollars.     We

understand how petitioners feel; unfortunately, however, their

argument is unavailing, as explained in Roberts v. Commissioner,

T.C. Memo. 1998-172, affd. without published opinion 182 F.3d 927

(9th Cir. 1999).

     Petitioners’ second argument is that SSD benefits are

excludable under section 104.     It is well established that SSD

benefits are includable in income under section 86 and are not



     2
      The stipulation of facts and the attached exhibits are
incorporated herein by this reference.
                                 -3-

excludable as workmen’s compensation benefits under section

104(a)(1), Green v. Commissioner, T.C. Memo. 2006-39, affd. 262

Fed. Appx. 790 (9th Cir. 2007), or accident/health insurance

benefits under section 104(a)(3), Seaver v. Commissioner, T.C.

Memo. 2009-270.

     To reflect the foregoing,


                                            Decision will be entered

                                       for respondent.
