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incapacitated from October 2 to December 2, 2003, and from
February 1 to April 1, 2004.
Dr. Moore further certified that petitioner was “released to
full duty” on June 7, 2004. Thus, petitioner should have been
capable of engaging in substantial gainful activity as of that
date. See Kovacevic v. Commissioner, T.C. Memo. 1992-609
(holding that the taxpayer was not “disabled” within the meaning
of section 72(m)(7) even though he suffered from severe
depression and was hospitalized twice, because he had not shown
that his condition was irremediable).
Moreover, as certified by her own physician, petitioner’s
disability was not indefinite. The Court finds that petitioner
was and is not disabled within the meaning of section 72(m)(7)
and is therefore not eligible for the disability exception under
section 72(t)(2)(A)(iii).
The distribution petitioner received is subject to the 10-
percent additional tax under section 72(t).
Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
for respondent.
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