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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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