In Uncategorized on 06/23/2015 at 19:04

No, not the Doc Pomus-Mort Shuman classic immortalized by Ben E. King and the Drifters (still going strong a year ago February on the Legend of the Seas).

Alas, this is the sad story of Charles D. Trainito, 2015 T.C. Sum Op. 37, filed 6/23/15.

Charlie had Type 2 diabetes, which ratted him out of the Boston Department of Environmental Health (DEH), where his job was to lift heavy manhole covers to deposit rat bait thereunder.

Charlie took a draw out of his City of Boston Retirement Account, claiming he was disabled. Six weeks thereafter, Charlie went into a diabetic coma, spent nine days in the hospital, and filed for disability.

But on the day he took the draw, was Charlie disabled?

Judge Nega says Charlie didn’t prove he was. Though Charlie and his two lawyers had 300 pages of medical records describing his coma and post-coma treatment (I’ll spare you the details, but Judge Nega goes through the whole list), on the day he drew, Charlie had nothing but his own testimony.

True, Section 72(t)(2)(A)(iii) gets you off the hook from the 10% youth chop if you take a draw from your retirement account while disabled, but Charlie needs more than his say-so.

“Petitioner testified at trial that, following his diagnosis with diabetes in 2005, he saw a primary care doctor twice per month until his resignation from his job with DEH in October 2010. However, despite receiving frequent treatment, petitioner did not produce any medical records relating to these visits, nor did his primary care doctor testify on his behalf. Nor did he produce any records that would corroborate his claims that he suffered from depression at any point before the distribution….

“Petitioner argues that he was disabled within the meaning of section 72(m)(7) because he suffered from diabetes, or alternatively, that he suffered from depression. However, notwithstanding the severe medical event petitioner experienced…, the relevant date we must consider is [date of distribution], because section 72(t)(2)(A)(iii) requires that the distribution be attributable to the taxpayer’s being disabled. A taxpayer may not escape the 10% early withdrawal penalty by suffering a disability at just any point during the tax year; rather the disability must be present at the time the distribution is made.” 2015 T. C. Sum. Op. 37, at pp. 7-8.

It’s this magic moment, when you’re both disabled and taking the draw, that counts.

No good, Charlie, 10% chop.

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