Robert J. Dwyer and Catherine Dwyer - Page 7

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          the same as where the individual applies for disability payments            
          under social security."                                                     
               The regulations, promulgated pursuant to the statutory                 
          authorization contained in section 72(m)(7), provide that an                
          individual will be considered to be disabled if he or she is                
          unable to engage in any "substantial gainful activity" by reason            
          of any medically determinable physical or mental impairment that            
          can be expected to result in death or to be of long-continued and           
          indefinite duration.  Sec. 1.72-17A(f)(1), Income Tax Regs.                 
          Significantly, the regulations also provide that an impairment              
          which is remediable does not constitute a disability.  Sec. 1.72-           
          17A(f)(4), Income Tax Regs.                                                 
               Notwithstanding the apparent severity of petitioner's                  
          illness in 1989, which, according to Dr. Gardner, persisted into            
          the spring of 1992, the illness did not fall within the                     
          definition of "disabled" as contemplated by sections 72(t)(1) and           
          (2) and 72(m)(7), and the regulations thereunder.  Petitioner               
          continued to function as an active stock trader in the face of              
          his clinical depression, and in fact withdrew his IRA funds to              
          further that activity.  Thus, his condition fails to meet the               
          regulatory requirement that the individual be so impaired as to             
          be unable to engage in any substantial gainful activity.  Sec.              
          1.72-17A(f)(4), Income Tax Regs.                                            

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