Mary L. Coleman-Stephens - Page 6

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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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