                  T.C. Summary Opinion 2001-152



                     UNITED STATES TAX COURT



   WILLIE CLAYBORN, JR. & JACQULYN A. CLAYBORN, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 978-00S.                 Filed September 25, 2001.



     Willie Clayborn, Jr. and Jacqulyn A. Clayborn, pro sese.

     H. Clifton Bonney, Jr., for respondent.



     DINAN, Special Trial Judge:    This case was heard pursuant to

the provisions of section 7463 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.   Unless otherwise indicated,

subsequent section references are to the Internal Revenue Code in
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effect for the year in issue, and all Rule references are to the

Tax Court Rules of Practice and Procedure.

     Respondent determined a deficiency in petitioners’ Federal

income tax of $2,340 for the taxable year 1997.

     The sole issue for decision is whether certain Social

Security disability benefits are includable in petitioners’ gross

income.

     Some of the facts have been stipulated and are so found.

The stipulations of fact and the attached exhibits are

incorporated herein by this reference.   Petitioners resided in

Richmond, California, on the date the petition was filed in this

case.

     Petitioners filed a joint Federal income tax return for

taxable year 1997.   They reported $58,534 in adjusted gross

income on the return.   They received $13,857 in Social Security

disability benefits in 1997, but did not report any portion of

this amount on their return.   Respondent issued petitioners a

statutory notice of deficiency with the determination that they

had unreported income of $11,778 from the Social Security

benefits.1



     1
      Respondent also determined that petitioners had unreported
income of $17 in interest and $52 in dividends. Respondent
concedes the interest adjustment and petitioners do not dispute
the dividends adjustment.
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       The inclusion of Social Security benefits in gross income is

governed by section 86.    Social Security disability benefits are

treated in the same manner as other Social Security benefits.

Sec. 86(d)(1); Thomas v. Commissioner, T.C. Memo. 2001-120.

Taxpayers who file a joint return and whose modified adjusted

gross income plus half of the Social Security benefits received

is greater than $32,000 must include a portion of the benefits in

their income.    Sec. 86(a) through (c).   The portion, never

exceeding 85 percent, varies according to a formula set forth in

section 86(a).    Petitioners had modified adjusted gross income of

at least $58,534, see sec. 86(b)(2), and received benefits of

$13,857.    Because their modified adjusted gross income plus half

their benefits exceeds $44,000 by at least $21,463, they must

include in income 85 percent of the benefits.     See sec. 86(a),

(c).    Thus, respondent is correct in his determination that

petitioners must include in income 85 percent of the Social

Security disability benefits, or $11,778.

       Petitioners do not dispute receiving $13,857 in Social

Security benefits.    Their sole argument is that the IRS has made

inconsistent rulings regarding whether the benefits are taxable.

They assert that an IRS employee agreed that the benefits were

not taxable with respect to a prior year.     We note that the law

governing this area has changed over the years.     However, we need

not address whether the employee’s treatment was correct with
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respect to petitioners’ situation in a prior year.    Regardless of

the soundness of the employee’s treatment, respondent is not

bound by advice given to a taxpayer which is based upon a mistake

of law, Dixon v. United States, 381 U.S. 68 (1965); Auto. Club v.

Commissioner, 353 U.S. 180 (1957), and we have found that

respondent correctly applied the law in effect in 1997 to

petitioners’ situation in that year.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                      Decision will be entered

                                 under Rule 155.
