             Case: 12-10462     Date Filed: 12/18/2012   Page: 1 of 3

                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-10462
                            Non-Argument Calendar
                          ________________________

                               Agency No. 6344-10



JOHN TED BAREFIELD,

                                                              Petitioner-Appellant,

                                      versus

COMMISSIONER OF IRS,

                                                             Respondent-Appellee.

                          ________________________

                        Petition for Review of a Decision
                               of the U.S. Tax Court
                         ________________________

                              (December 18, 2012)

Before TJOFLAT, CARNES, and PRYOR, Circuit Judges.

PER CURIAM:

      John Ted Barefield, proceeding pro se, appeals the tax court’s order granting

summary judgment to the Internal Revenue Service and concluding that he owes a
               Case: 12-10462     Date Filed: 12/18/2012    Page: 2 of 3

tax deficiency on social security income he received in 2007. Barefield contends

that: (1) the social security benefits he received are not taxable income; (2) the tax

court should not have granted the IRS’s motion for summary judgment without

allowing him to argue his case in person; and (3) the IRS improperly assessed

interest on his tax deficiency.

      We review de novo the tax court’s order granting summary judgment.

Roberts v. Comm’r, 329 F.3d 1224, 1227 (11th Cir. 2003). The tax court granted

summary judgment to the IRS because it concluded that social security income is

taxable regardless of whether that income is for disability benefits or old-age

insurance benefits. Barefield contends that because the social security benefits he

received were disability benefits they are not taxable income. We disagree. The

Internal Revenue Code states, “[G]ross income . . . includes social security

benefits. . . .” 26 U.S.C. § 86(a)(1). It defines a “social security benefit” as “any

amount received by the taxpayer by reason of entitlement to—(A) a monthly

benefit under title II of the Social Security Act, or (B) a tier 1 railroad retirement

benefit.” Id. § 86(d)(1). Title II of the Social Security Act expressly includes

disability benefits. See 42 U.S.C. § 423. Under that plain statutory language,

social security disability benefits are taxable income.

      Barefield also contends that the tax court should have allowed him to argue

his case in person before granting the IRS’s motion for summary judgment.


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Barefield cites no authority in support of that contention, and the tax court’s Rules

of Practice and Procedure specifically contemplate a ruling on a motion for

summary judgment without a hearing. See Tax Ct. R. 121(b). Based on that rule,

Barefield’s contention lacks merit.

       Finally, Barefield contends that the IRS improperly assessed interest on his

tax deficiency because the tax court’s judgment did not expressly state that interest

would accrue on the amount of the deficiency. 1 Interest on a tax deficiency is

mandatory by statute. See 26 U.S.C. § 6601. The Supreme Court has instructed

that when a taxpayer wants to challenge the validity of that interest, "[t]he proper

procedure [i]s for [the taxpayer] to pay the interest . . . and sue for their refund in

an appropriate federal district court or in the Claims Court." Comm’r v. McCoy,

484 U.S. 3, 7, 108 S.Ct. 217, 219 (1987). Thus, we lack jurisdiction to address the

assessment of interest in this case. See id. at 6, 108 S.Ct. at 219 .

       AFFIRMED.




       1
         Barefield’s brief to this Court refers to “penalt[ies] and interest,” but the record does not
show that any penalties were assessed against him. The final tax bill that Barefield received
from the IRS shows only a deficiency of $769.78 and interest of $135.38.

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