                        T.C. Memo. 2004-217



                      UNITED STATES TAX COURT



                MARGIE E. ROBERTSON, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5221-03.               Filed September 27, 2004.



     Margie E. Robertson, pro se.

     Beth A. Nunnink, for respondent.



              MEMORANDUM FINDINGS OF FACT AND OPINION


     FOLEY, Judge:   The issues for decision are whether

petitioner is liable for deficiencies relating to 1999 and 2000.

                           FINDINGS OF FACT

     On September 3, 1997, petitioner lent Mary Moore (Ms. Moore)

$25,000.   The parties executed a deed of trust and note (the

note) secured by a home in Carbondale, Illinois (the property).
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Principal and accrued interest were payable upon the transfer of

the property or death of Ms. Moore, whichever came first.    In

1998, Ms. Moore died.    Petitioner, on her 1999 Federal income tax

return, reported a $25,000 loss.

     From 1992 to 2000, petitioner was employed by the City of

Seattle (the City) as a license and standards inspector.    During

this period she had a digestive disorder.    Although petitioner

could not eat during work hours, her digestive disorder imposed

no other physical limitations on her ability to work.    In 1999,

petitioner requested to have her schedule modified from a 10 1/2-

hour workday (i.e., with a 1/2-hour lunch break) to a 10-hour

workday without a lunch break.    The City denied petitioner’s

request.   In response, on August 1, 2000, petitioner resigned.

After petitioner resigned, the City granted her request, but she

did not accept their accommodation.

     In 2000, petitioner received a $46,996 Individual Retirement

Account (IRA) distribution.    Petitioner reported the distribution

on her 2000 Federal income tax return and paid income tax

relating to the gross amount but did not pay the 10-percent

additional tax pursuant to section 72(t)(1).

     By notice of deficiency dated December 31, 2002, respondent

determined deficiencies of $4,382 and $4,700 relating to 1999 and

2000, respectively.     On April 4, 2003, petitioner, while residing

in Memphis, Tennessee, filed her petition with this Court.
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                                  OPINION

        At the outset, we note that petitioner failed to cooperate

with respondent and as a result, has the burden of proof.       Sec.

7491(a)(2)(B); Rule 142(a).1      Petitioner contends that she is

entitled to a section 166 bad debt deduction relating to the

note.       She also contends that in 1998, the first lien holder

attempted to foreclose on the property, and that she attempted to

collect on the note in that year.       The note is a bona fide debt

and became due in 1998 when Ms. Moore died.       Petitioner, however,

claimed a deduction for the unpaid debt on her 1999 tax return.

Even though the note was due in 1998, petitioner failed to

establish when the debt became worthless.       Aston v. Commissioner,

109 T.C. 400 (1997); sec. 1.166-5(a)(2), Income Tax Regs.

Accordingly, she is not entitled to a deduction.

     Petitioner contends that the 10-percent additional tax,

pursuant to section 72(t)(1), is inapplicable, because she

qualifies for the disability exception pursuant to section

72(t)(2).      She, however, failed to establish that she was “unable

to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment”.      Sec.

72(m)(7).      Although petitioner had a digestive disorder and was



        1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the years in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
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required to refrain from eating during work hours, she was able

to engage in “substantial gainful activity”.       Sec. 72(m)(7);

Dwyer v. Commissioner, 106 T.C. 337, 341 (1996).

     Accordingly, we sustain respondent’s determinations.

Contentions we have not addressed are irrelevant, moot, or

meritless.

     To reflect the foregoing,



                                              Decision will be entered

                                         for respondent.
