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 106 T.C. 337">Dwyer v. Commissioner, supra at 341; sec. 1.72-17A(f)(1), Income Tax Regs.2006 Tax Ct. Summary LEXIS 166">*173 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 was due to total and permanent disability. The Court finds that, despite the distribution classification on the Form 1099-R, petitioner has provided sufficient evidence to show that he was disabled at the time of the distribution.

Prior to petitioner's knee injury, his position as a boiler mechanic at the power plant required him, with assistance from his coworkers, to repeatedly lift heavy objects2006 Tax Ct. Summary LEXIS 166">*174 and to be on his knees for certain tasks, such as welding on a platform. According to the medical evaluations from petitioner's physicians during 2003, petitioner experienced pain whenever he moved or shifted weight onto his left knee. As a result, petitioner was unable to return to work, because he could not lift heavy objects. Even had petitioner not retired, the evidence shows that petitioner's injuries were such that he could no longer perform his job. See Brown v. Commissioner, T.C. Memo. 1996-421 (finding that petitioner was "disabled" since he could not climb ladders, or otherwise lift heavy objects, or "walk beams", because his position as a project engineer required him to be substantially mobile and physically fit).

The term "indefinite" under section 72(m)(7) means that it cannot reasonably be anticipated that the impairment will, in the foreseeable future, be so diminished as no longer to prevent substantial gainful activity. Sec. 1.72-17A(f)(3), Income Tax Regs. For example, an individual who suffers a bone fracture which prevents him from working for an extended period of time will not be considered disabled if his recovery can2006 Tax Ct. Summary LEXIS 166">*175 be expected in the foreseeable future; if the fracture persistently fails to knit, the individual would ordinarily be considered disabled. Id.

An impairment which is remediable does not constitute a disability. Sec. 1.72-17A(f)(4), Income Tax Regs. 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 comparable substantial gainful activity. Id.

Although petitioner went to physical therapy sessions and received steroid shots for his pain, petitioner remained on leave and was unable to work. Petitioner received treatments to his knee for at least 4 years after his injury in 2001. Moreover, petitioner's lower back pain, in part triggered by his knee injury, stemmed from injuries sustained earlier in his career as a boiler mechanic. These longstanding injuries are comparable to a bone fracture that persistently fails to knit as set forth by the example in the income tax regulations.

According to a letter from petitioner's primary treating physician, petitioner was considered2006 Tax Ct. Summary LEXIS 166">*176 "temporarily totally disabled" for the entire period under his care, from March 14, 2002, to December 10, 2005. The resolution of whether petitioner was "disabled" within the meaning of section 72(m)(7) now turns upon a narrow question of fact--whether petitioner's injuries were temporary or indefinite?

There is a dearth of cases interpreting and analyzing the term "indefinite" under section 72(m)(7) and section 1.72- 17A(f)(3), Income Tax Regs. There is, however, in the context of a taxpayer who seeks deductions for certain expenses incurred while away from home under section 162(a)(2), a well-established body of caselaw that has analyzed and contrasted the concepts of "temporary" and "indefinite". See Peurifoy v. Commissioner, 358 U.S. 59">358 U.S. 59, 358 U.S. 59">60-61 (1958); Neal v. Commissioner, 681 F.2d 1157">681 F.2d 1157, 681 F.2d 1157">1159 (9th Cir. 1982) (following Kasun v. United States, 671 F.2d 1059">671 F.2d 1059 (7th Cir. 1982)), affg. T.C. Memo. 1981-407; Stricker v. Commissioner, 54 T.C. 355">54 T.C. 355, 54 T.C. 355">361-362 (1970), affd. 438 F.2d 1216">438 F.2d 1216 (6th Cir. 1971). They lend guidance to the interpretation of "indefinite" in this case.

An employment is for an indefinite duration2006 Tax Ct. Summary LEXIS 166">*177 if its termination is not foreseeable or is not reasonably expected to be foreseen within a fixed or reasonably short period of time. Mitchell v. Commissioner, 74 T.C. 578">74 T.C. 578, 74 T.C. 578">581-582 (1980); 54 T.C. 355">Stricker v. Commissioner, supra at 361; White v. Commissioner, T.C. Memo. 1984-128; Duley v. Commissioner, T.C. Memo. 1979-262.

The mere labeling or designation of a job as "temporary" is not determinative; the duration of a job is indefinite if termination is not foreseeable within a short period of time. Garlock v. Commissioner, 34 T.C. 611">34 T.C. 611 (1960); Allison v. Commissioner, T.C. Memo. 1986-346. Moreover, employment that was temporary in its inception may become indefinite due to change in circumstances, or simply by the passage of time. See 74 T.C. 578">Mitchell v. Commissioner, supra at 581; Norwood v. Commissioner, 66 T.C. 467">66 T.C. 467, 66 T.C. 467">469-470 (1976); Kroll v. Commissioner, 49 T.C. 557">49 T.C. 557, 49 T.C. 557">562 (1968); Moxey v. Commissioner, T.C. Memo. 1988-156.

Similarly, although petitioner's injuries were labeled as "temporary", there was no reasonable indication, nor could it be reasonably anticipated2006 Tax Ct. Summary LEXIS 166">*178 or be foreseen at the time of the distribution in 2003, when or if petitioner would be able to return to work. Even if petitioner's injuries were "temporary" initially, over time, they became indefinite. The inability to predict when petitioner would be able to return to work, if ever, caused the disability to be indefinite within the meaning of section 72(m)(7) and section 1.72-17A(f)(3), Income Tax Regs. See Brown v. Commissioner, supra.

The Court finds that petitioner's physical injuries, which were of a long-continued and indefinite duration, prevented him from engaging in his customary or any comparable substantial gainful activity. Accordingly, petitioner was disabled within the meaning of section 72(m)(7), and the distribution is not 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 petitioner.