                  T.C. Summary Opinion 2003-84



                     UNITED STATES TAX COURT



                   CHARLIE LAWS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5815-02S.                Filed June 24, 2003.


     Charlie Laws, pro se.

     Travis Vance III, 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.

     Respondent determined a deficiency of $3,187 in petitioner’s


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

1999 Federal income tax.    The issues are whether petitioner must

include in gross income (1) a distribution received from an

annuity and (2) Social Security benefits.    Petitioner resided in

Atlanta, Georgia, at the time the petition was filed.

                             Background

     Petitioner retired from the U.S. Post Office on April 1,

1962, as totally disabled.    Since 1962, petitioner has received

payments under a disability retirement annuity administered by

the Office of Personnel Management (OPM).    For the taxable year

1999, OPM issued a Form 1099-R, Distributions From Pensions,

Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance

Contracts, etc., to petitioner indicating a distribution of

$13,740.    The Social Security Administration also issued a Form

1099-SSA to petitioner indicating Social Security benefits of

$8,526.    In preparing his 1999 Federal income tax return,

petitioner failed to include the annuity payments and the Social

Security benefits in his gross income.    Upon examination,

respondent concluded that the annuity payments and Social

Security benefits are includable in petitioner’s gross income.

                             Discussion

Annuity Payments

     We have already explored the statutory bases for the tax

treatment of annuity payments and Social Security benefits with

respect to petitioner in Laws v. Commissioner, T.C. Memo. 2003-
                               - 3 -

21, and we see no reason to restate those here.    Suffice it to

say, we adhere to our opinion in that case.

     There is one argument that petitioner makes here that we did

not specifically address in our prior opinion.    Petitioner

requests “the Court to give an opinion or rule that the decision

is discriminatory; they discriminate on age.    If you’re a young

man, it’s [petitioner’s annuity payment] not taxable before 65,

but if you’re an old man, after 65, it [petitioner’s annuity

payment] becomes taxable.”   We characterize petitioner’s argument

as a Fifth Amendment challenge; specifically, that the tax

violates the equal protection component of the Due Process Clause

of the Fifth Amendment.2

     The taxes on petitioner’s annuity payments and Social

Security benefits, however, do not “interfere with the exercise

of a fundamental right, such as freedom of speech, or employ a

suspect classification, such as race.”    Regan v. Taxation With

Representation, 461 U.S. 540, 547 (1983).     Age classification is

not a suspect classification for equal protection analysis.

Vance v. Bradley, 440 U.S. 93, 97 (1979); Mass. Bd. of Ret. v.

Murgia, 427 U.S. 307, 312-314 (1976).    Accordingly, our review is

limited to whether there is a rational basis for the

     2
        The Due Process Clause has been construed as imposing an
equal protection requirement in respect of classification to the
extent that "discrimination [resulting from such classification]
may be so unjustifiable as to be violative of due process."
Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
                                 - 4 -

differentiation between the two groups; i.e., whether the

classification bears a reasonable relationship to a legitimate

governmental purpose.   See Dandridge v. Williams, 397 U.S. 471

(1970).3

     The legitimate governmental purpose for a 65-year-old to pay

tax on disability payments, while those under the age of 65 do

not, is “to grant a tax benefit to persons receiving disability

pay when they would normally have been at work.”        Ruggere v.

Commissioner, 78 T.C. 979, 987 (1982).       After the retirement age,

“there is no meaningful distinction between continued disability

payments and normal pension payments”.        Id. at 985.   The

classification is reasonably related to the Government’s purpose

and is constitutionally valid.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                         Decision will be entered

                                 for respondent.




     3
        Notably, legislatures have especially broad latitude in
creating classifications and distinctions in tax statutes. Regan
v. Taxation With Representation, 461 U.S. 540, 547 (1983).
