                  T.C. Summary Opinion 2001-54



                     UNITED STATES TAX COURT



          ROBERT J. AND DORIS L. PEAT, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5846-99S.                   Filed April 13, 2001.


     Robert J. and Doris L. Peat, pro se.

     Bradford A. Johnson, for respondent.


     POWELL, Special Trial Judge:   This case was heard pursuant

to the provisions of section 74631 of the Internal Revenue Code

in effect at the time the petition was filed.    The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority.



1
   Unless otherwise indicated, subsequent section references are
to the Internal Revenue Code in effect for the year in issue, and
Rule references are to the Tax Court Rules of Practice and
Procedure.
                                 - 2 -

     Respondent determined a deficiency of $465 in petitioners’

1996 Federal income tax.     After concessions,2 the sole issue is

whether petitioners must include in their 1996 gross income

Social Security payments of $2,711.       Petitioners resided in

Waterford, New York, at the time the petition was filed.

     The relevant facts may be summarized as follows.       During

1996, petitioners were married and lived together.       Petitioners

filed a joint return for the 1996 taxable year.       Petitioners

received Social Security benefits of $10,483; they, however, did

not include in income any portion of the benefits received on

their 1996 Federal income tax return.       For the 1996 taxable year

petitioners’ modified adjusted gross income was $32,179.

Respondent determined that $2,711 of petitioners’ Social Security

benefits are includable in gross income.

     Section 86 governs the taxability of Social Security

benefits.    That section provides in relevant part:

            SEC. 86(a).   In General.-–

                 (1) In general.-– * * * gross income for the
            taxable year of any taxpayer described in subsection
            (b) * * * includes social security benefits in an
            amount equal to the lesser of-–

                      (A) one-half of the social security benefits
                   received during the taxable year, or

                      (B) one-half of the excess described in
                   subsection (b)(1).


2
   Respondent concedes his original assertion that petitioners
understated their 1996 interest income by $476.
                             - 3 -

*        *            *        *          *      *        *

     (b) Taxpayers to Whom Subsection (a) Applies.-–

            (1) In general.-–A taxpayer is described in this
     subsection if-–

                   (A) the sum of-–

                        (i) the modified adjusted gross income
                   of the taxpayer for the taxable year, plus

                        (ii) one-half of the social security
                   benefits received during the taxable year,
                   exceeds

                   (B) the base amount.

            (2) Modified adjusted gross income.-–For
     purposes of this subsection, the term “modified
     adjusted gross income” means adjusted gross income-–

                (A) determined without regard to this
             section and sections 135, 137, 221, 911, 931,
             and 933, and

                (B) increased by the amount of interest
             received or accrued by the taxpayer during the
             taxable year which is exempt from tax.

     (c) Base Amount and Adjusted Base Amount.-–For purposes
of this section-–

             (1) Base amount.-–The term “base amount” means-–

                (A) except as otherwise provided in this
             paragraph, $25,000,

                   (B) $32,000 in the case of a joint return,
             and

                   (C) zero in the case of a taxpayer who-–

                        (i) is married as of the close of the
                   taxable year * * * but does not file a joint
                   return for such year, and
                                - 4 -

                           (ii) does not live apart from his spouse
                      at all times during the taxable year.

       Petitioners do not contend that under the literal language

of section 86 respondent’s determination is incorrect.       Instead,

petitioners argue that section 86 is inequitable in that it

treats persons not married and living together or persons married

and living apart with preference to those individuals who are

married and living together.    Petitioners argue that they should

be entitled to double the section 86 base amount of $25,000 for

single individuals as opposed to the $32,000 base amount for

married couples filing jointly.

       As we noted in Everage v. Commissioner, T.C. Memo. 1997-373,

       Petitioner’s chagrin and frustration may be understandable.
       Nonetheless, we must apply the statutes as Congress wrote
       them and we do not have the power to rewrite section 86 to
       avoid this anomaly. See Huntsberry v. Commissioner, 83 T.C.
       742, 747-748 (1984).

The taxpayers in Roberts v. Commissioner, T.C. Memo. 1998-172,

also questioned the fairness of section 86.   In Roberts, we noted

that

       this is not the proper forum to question the policy
       considerations that impelled the enactment of this
       legislation. * * * The legislative history of section 86,
       as enacted in 1983, demonstrates that Congress had a valid
       and rational basis for the distinctions made in the
       statute[.]

       *        *         *         *         *          *              *

            We recognize that “‘No scheme of taxation, whether the
       tax is imposed on property, income, or purchases of goods
       and services, has yet been devised which is free of all
       discriminatory impact.’” Druker v. Commissioner, 77 T.C.
                              - 5 -

     867, 872 (1981) (quoting San Antonio Indep. Sch. Dist. v.
     Rodriguez, 411 U.S. 1, 41 (1973)), affd. in part on this
     issue and revd. in part on another issue 697 F.2d 46 (2d
     Cir. 1982).

     In light of the foregoing we sustain respondent’s

determination.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                      Decision will be entered

                              under Rule 155.
