Robert J. Dwyer and Catherine Dwyer - Page 10

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          be true, we would again point out that regardless of the                    
          potential permanency of his condition, or the absence thereof,              
          petitioner was not so impaired as to be unable to actively pursue           
          the substantial gainful activity of securities trading in which             
          profession he was engaged throughout the year in question.                  
               In conclusion, we might also point out that Congress has               
          provided a means of access to IRAs before retirement in some                
          cases of medical problems which, though serious, do not result in           
          permanent disability.  Section 72(t)(2)(B) permits premature IRA            
          distributions without penalty to the extent such distributions do           
          not exceed the amount allowable as a deduction under section 213            
          for medical care (determined without regard to whether an                   
          individual itemizes deductions).  Petitioners have not claimed              
          the protection of this section, presumably because they reported            
          only $5,481 in unreimbursed medical and dental expenses on their            
          1989 Form 1040, which amount was not deductible by petitioners              
          because it did not exceed 7.5 percent of their adjusted gross               
          income, as required by section 213(a).                                      
               For the foregoing reasons we hold that petitioners are                 
          liable for the 10-percent additional tax on a premature                     
          distribution from Robert's qualified plan in 1989, pursuant to              
          section 72(t).  See also, to the same effect, Kovacevic v.                  
          Commissioner, T.C. Memo. 1992-609, and Kane v. Commissioner, T.C.           
          Memo. 1992-218.  To reflect this holding and concessions,                   

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