CCA 200922041: Disability exception required evidence of inability to perform comparable work

Plain-English summary

Chief Counsel discussed the disability standard in response to a question about the section 72(t) additional tax. Section 72(m)(7) required a medically determinable impairment preventing substantial gainful activity and expected to result in death or continue for a long and indefinite period, supported by proof. The email also cited the rule denying disability status when reasonable, safe efforts could reduce the impairment enough to permit customary or comparable substantial work. It explained that the individual needed to establish inability to perform comparable work in the distribution year. Chief Counsel considered Dwyer v. Commissioner relevant to the inquiry but did not make a final factual determination of disability.

Ruling snapshot

• Question: What showing of disability was needed for the retirement-distribution additional-tax inquiry?
• Outcome: Advice given: establish the statutory impairment and inability to perform customary or comparable substantial work in the distribution year.
• Key authorities: IRC § 72(m)(7), (t); Treas. Reg. § 1.72-17(f)(4); Dwyer v. Commissioner, 106 T.C. 337 (1996).

Full text (IRS public release)

ID: CCA_2009041612260450 Number: 200922041
Release Date: 5/29/2009
Office: -------------------------
UILC: 72.20-03

From: --------------------
Sent: Thursday, April 16, 2009 12:26:07 PM
To: -------------------
Cc: -------------------------------------
Subject: RE: 72(t) Additional Tax

There are court cases that discuss what constitutes disability under section 72(m)(7) of the Code. The one that does a nice summary is a Bankruptcy case, In Re Black 204 BR 701 (1996), (copy attached), that cites among other cases Dwyer v. Commissioner, 106 T.C. 337 (1996) (Copy attached).

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.

S. Rept. 93-383, supra at 134, 1974-3 C.B. (Supp.) at 213 states that "Generally it is intended that the proof [of disability] be the same as where the individual applies for disability payments under social security."

The regulations, promulgated pursuant to the statutory authorization contained in section 72(m)(7), provide that an individual will be considered to be disabled if he or she is unable to engage in any "substantial gainful activity" by reason of any medically determinable physical or mental impairment that can be expected to result in death or to be of long-continued and indefinite duration.

An individual will not be deemed disabled if, with reasonable effort and safety to himself, the impairment can be diminished to the extent that the individual will not be prevented by the impairment from engaging in his customary or any other comparable substantial gainful activity. Section 1.72-17(f)(4) of the regulations. Thus, the individual has to establish that he was not able to work in the year of the distribution at an activity comparable to the one in which he customarily engage, and if he can meet the criteria of the regulations he would be considered disable as defined in section 72(m)(7). See Dwyer v. Commissioner, 106 T.C. 337 (1996). I think the Dwyer v. Commissioner case is applicable to your case.

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