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The determination of whether a taxpayer is disabled is made
with reference to all the facts of the case. See 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.
See sec. 1.72-17A(f)(1), Income Tax Regs.
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 arising of the disability. See Dwyer v.
Commissioner, supra at 341; sec. 1.72-17A(f)(1), Income Tax Regs.
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
considering the individual’s education, training, and work
experience. Sec. 1.72-17A(f)(1), Income Tax Regs.
Respondent argues that on box 7 of Form 1099-R,
Distributions From Pensions, Annuities, Retirement or Profit-
Sharing Plans, IRAs, Insurance Contracts, etc., issued by
Southern Cal, the distribution was classified as an “early
distribution, no known exception”. Petitioner affirmatively
claimed on line 2 of Form 5329, Additional Taxes on Qualified
Plans (including IRAs) and Other Tax-Favored Accounts, that he
was excepted from the additional tax, because the distribution
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Last modified: May 25, 2011