Gregory Scott West - Page 7

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                    to be of long-continued and indefinite                            
                    duration.  An individual shall not be                             
                    considered to be disabled unless he furnishes                     
                    proof of the existence thereof in such form                       
                    and manner as the Secretary may require.                          
          Because petitioner was not treated for HIV until 1999, he has no            
          medical records reflecting that he had HIV in 1997.  Petitioner             
          testified that when he was hospitalized in March 1999 his CD4+ T            
          cell count and viral load readings indicated that the illness had           
          progressed from prior years.  Petitioner relies on this inference           
          to prove that he was HIV positive during 1997.  We note, however,           
          that petitioner failed to provide any medical records from any              
          year reflecting his CD4+ T cell or viral load levels.3                      
               Further, at trial petitioner testified that had he found a             
          company, like American Express, that offered him a part-time work           
          schedule and medical insurance with no “annual caps”, then he               
          would have worked in 1997.  Under the definition of disability              
          found in section 72(m), petitioner is not deemed disabled if he             
          was able to “engage in any substantial gainful activity” during             
          the year in issue.  “Substantial gainful activity” refers to the            
          activity or a comparable activity in which the individual                   
          customarily engaged prior to the disability.  Sec. 1.72-17(f)(1),           
          Income Tax Regs.  By petitioner’s own testimony, he was able to             

               3    Because petitioner failed to comply with requirements             
          to substantiate his illness, he failed to meet the requirements             
          of sec. 7491(a)(2)(A), as amended, so as to place the burden of             
          proof on respondent with respect to any factual issue relevant to           
          ascertaining liability for the tax deficiency in issue.                     

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