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exceptions. As is relevant to the present case, section
72(t)(2)(A)(iii) provides an exception for distributions
“attributable to the employee’s being disabled within the meaning
of subsection (m)(7)”. Section 72(m)(7) provides:
(7) Meaning of disabled.--For purposes of this section,
an individual shall be considered to be disabled if he is
unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or 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.
Respondent first argues that petitioner was not “so impaired
by depression during 1999 as to be unable to engage in
substantial gainful activity”. The regulations provide:
The substantial gainful activity to which section 72(m)(7)
refers is the activity, or a comparable activity, in which
the individual customarily engaged prior to the arising of
the disability * * * .
Sec. 1.72-17A(f)(1), Income Tax Regs.
Respondent “acknowledges that petitioner began suffering
from depression in 1997, and that due to her depressive illness,
she was, at least for some period of time, unable to work.”
There is no evidence in the record indicating that petitioner’s
condition changed significantly from 1997 through the end of
1999. While the record lacks in details concerning petitioner’s
medical condition throughout this period of time, it is clear
that petitioner was unable to continue in her employment, despite
an attempt to return to a comparable position with the U.S.
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Last modified: May 25, 2011