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to be indefinite within the meaning of section 72(m)(7) and
section 1.72-17A(f)(3), Income Tax Regs.
In arguing that petitioner’s disability was not indefinite,
respondent primarily relies on the statement by petitioner’s
physician that, as of December 1998, there was “progress noted
and fair prospects of eventual return to work in some capacity.”
We do not find this to be an indication that petitioner’s
condition was not indefinite. The statement “fair prospects of
eventual return to work” is vague and provides no definitiveness
to the longevity of petitioner’s disability. Furthermore, the
physician’s prediction involved only a return to work “in some
capacity.” As noted above, for purposes of section 72(m)(7) an
individual is considered to be disabled--even where the
individual is employed in some capacity--where that individual is
not employed in a type of activity in which the individual
“customarily engaged prior to the arising of the disability”.
Sec. 1.72-17A(f)(1), Income Tax Regs. The physician’s statement
does not indicate whether he believed petitioner would ever be
able return to the same type of work in which she was engaged
prior to her disability.
We hold that petitioner is not liable for the section 72(t)
additional tax because, contrary to respondent’s assertions,
petitioner’s disability prevented her from engaging in
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