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72(m)(7). Respondent further argues that Mr. Keeley’s continued
psychological consultations do not constitute “constant
treatment”.
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.[13]
The determination of whether a taxpayer is disabled is made
on the basis of all the facts. Sec. 1.72-17A(f)(2), Income Tax
Regs. The regulations also set forth general considerations upon
which a determination of disability is to be made such as the
nature and severity of the impairment. Sec. 1.72-17A(f)(1),
Income Tax Regs. However, the regulations emphasize that 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 disability. Id.
Therefore, the impairment must be evaluated in terms of whether
it does, in fact, prevent the individual from engaging in his
customary, or any comparable, substantial gainful activity
13 Generally, proof of disability is the same as where the
individual applies for disability payments under Social Security.
S. Rept. 93-383, at 134 (1974), 1974-3 C.B. (Supp.) 80, 213.
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