                  T.C. Summary Opinion 2004-40



                     UNITED STATES TAX COURT



          JACK A. AND JUDITH M. DAVIS, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18421-02S.            Filed March 25, 2004.



     Jack A. Davis and Judith M. Davis, pro sese.

     Michael S. Hensley, for respondent.



     GOLDBERG, 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

effect for the year in issue.
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     Respondent determined a deficiency in petitioners’ Federal

income tax of $1,991 for the taxable year 2000.   The issue

remaining for decision is whether Social Security disability

benefits petitioners received are includable in their gross

income.1   Petitioners resided in Chula Vista, California, on the

date the petition was filed in this case.

     Petitioners filed a joint Federal income tax return for

taxable year 2000.   They did not report any income from Social

Security disability benefits.   Respondent determined that

petitioners received $15,053 in disability benefits during 2000,

and that $12,795 of this amount was includable in petitioners’

gross income.

     Petitioners do not dispute receiving the amount of benefits

respondent determined.   Rather, petitioners argue that disability

benefits, as such, should not be included in gross income.

Petitioners base their position upon advice they received from an

accountant and IRS employees, who told petitioners that

disability payments are not taxable.    However, despite the advice



     1
      The Court, in an order dated Dec. 1, 2003, held that a
notice of deficiency issued to petitioners for taxable year 1999
was invalid because it did not reflect petitioners’ last known
address. Because the jurisdiction of this Court requires a valid
notice of deficiency, petitioners’ case was dismissed for lack of
jurisdiction insofar as it related to 1999, and this Court may
not address at this time issues raised by petitioners with
respect to that year. Petitioners do not dispute the only other
adjustment in the notice of deficiency for taxable year 2000, the
inclusion in income of capital gain dividends of $15.
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to the contrary, it is clear under Federal tax law that Social

Security disability benefits are included in gross income to the

same extent as other Social Security benefits.    Sec. 86(d)(1);

Thomas v. Commissioner, T.C. Memo. 2001-120.     The amount of the

benefits includable in a taxpayer’s income depends upon the

taxpayer’s filing status and income from other sources but never

exceeds 85 percent of the benefits received.    Sec. 86(a).   We

have reviewed respondent’s calculations and conclude that

respondent was correct in determining that 85 percent of

petitioners’ Social Security disability benefits are includable

in their gross income for the year 2000.

     Petitioners argue that they “have a prenuptial agreement

that stipulates separate property, wages and/or earnings”.     We

interpret petitioners’ argument to be that, pursuant to the

prenuptial agreement, their income should not be combined for

purposes of applying section 86.   Such an agreement has no effect

on the application of Federal tax law under the circumstances of

this case.   Petitioners elected to file a joint Federal income

tax return, and therefore their tax must be “computed on the

aggregate income and the liability with respect to the tax shall

be joint and several.”   See sec. 6013(d)(3).   Petitioners may not

revoke their election to file jointly after the expiration of the

time for filing the return.   See Ladden v. Commissioner, 38 T.C.

530 (1962); sec. 1.6013-1(a)(1), Income Tax Regs.
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     Petitioners also stress that IRS employees advised them that

disability benefits are not taxable.     Neither the Commissioner

nor this Court is 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).      The

authoritative sources of Federal tax law are the statutes,

regulations, and judicial decisions.      Zimmerman v. Commissioner,

71 T.C. 367, 371 (1978), affd. without published opinion 614 F.2d

1294 (2d Cir. 1979).   We have applied the relevant statute, and

we have concluded that respondent correctly applied the law in

this case.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                       Decision will be entered

                               for respondent.
