Beverly Johnson - Page 7

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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               

                                                  Decision will be entered            
                                             for respondent.                          

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