UNITED STATES TAX COURT



            CYNTHIA L. ROWE, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 17856-04.               Filed February 22, 2007.


     P and her two young children lived together in 2002
until her arrest on June 5. P continued to support her
children after her arrest until July 2, but P was confined
in jail for the rest of the year.

     P claimed an earned income credit (EIC) on her Federal
income tax return for 2002 and received an EIC of $1,070.
R then denied the EIC, claiming that P did not have the same
principal place of abode as her children for more than half
of the year. P argues that, although she was jailed for the
rest of 2002 after her arrest on June 5, the home where she
lived with her children before her arrest still constituted
the principal place of abode for her and her children for
all of 2002.

     Held: P is eligible for the EIC for 2002. P’s absence
due to being held in jail after her arrest does not prevent
her from qualifying for the EIC.
                                 - 2 -

     Cynthia L. Rowe, pro se.

     Kelly A. Blaine, for respondent.



                                OPINION


     KROUPA, Judge:    Respondent determined a $1,070 deficiency in

petitioner’s Federal income tax for 2002.    The issue to be

decided is whether petitioner is eligible to claim an earned

income credit (EIC) in 2002.    We hold that she is.

                             Background

     This case was fully stipulated under Rule 122.1   The

stipulation of facts and the attached exhibits are incorporated

by this reference.    Petitioner was incarcerated in the Coffee

Creek Correctional Facility in Wilsonville, Oregon, when she

filed the petition.

     Petitioner and her two children lived together for the first

part of 2002, first at a home on Marcum Lane in Eugene, Oregon,

and then at the home of petitioner’s mother-in-law.    Petitioner

was arrested on June 5, 2002, and was held in jail for the

remainder of the year.    The father of petitioner’s two children

moved into his mother’s home to care for the children after

petitioner was arrested.


     1
      All section references are to the Internal Revenue Code in
effect at all relevant times, and all Rule references are to the
Tax Court Rules of Practice and Procedure, unless otherwise
indicated.
                                 - 3 -

     Petitioner supported herself and her children in 2002 with

wages, unemployment benefits, food stamps, and welfare medical

assistance until she was arrested.       Petitioner continued to

support her children even after her arrest until July 2, 2002,

when the Children’s Services Division of the State of Oregon

began providing petitioner’s children financial and medical

assistance in their own names.    Petitioner was ultimately

convicted of murder in 2003 and is presently serving a life

sentence at the Coffee Creek Correctional Facility.       Petitioner’s

conviction was pending on appeal when this case was submitted.

     Petitioner timely filed a Federal income tax return for 2002

claiming head of household status.       She claimed her children as

dependents and also claimed an EIC.       She stated on Schedule EIC,

Earned Income Credit, that she lived with her children for more

than half of 2002 but less than 7 months.       Petitioner received

$1,070 for the EIC.

     Respondent issued petitioner a deficiency notice concluding

that petitioner was not eligible for the EIC because she did not

share the same principal place of abode with her children for

more than half of 2002.2


     2
      Respondent also concluded that petitioner was not eligible
to file as head of household or to claim dependency exemptions
for her children. Respondent’s disallowance of the head of
household filing status had no effect on petitioner’s tax
liability for 2002 because her standard deductions and exemptions
exceeded her adjusted gross income. Respondent has since
                                                   (continued...)
                                 - 4 -

     Petitioner timely filed a petition and, at the Court’s

direction, an amended petition complying with the Court’s Rules.

                             Discussion

     We are asked to decide whether petitioner is eligible for

the EIC.   We begin by explaining the EIC in general terms.   An

eligible individual is entitled to an EIC against the

individual’s income tax liability, subject to certain

requirements.   Sec. 32(a)(1).   Different percentages and amounts

are used to calculate the credit depending on whether the

eligible individual has no qualifying children, one qualifying

child, or two or more qualifying children.    Sec. 32(b).

     Petitioner claims the EIC with respect to two or more

qualifying children.    Certain requirements must be met to be

eligible to claim an EIC with respect to qualifying children.

Respondent concedes that petitioner has satisfied the age,

identification, and relationship requirements with respect to her

two children.   See sec. 32(c)(3).   The issue in dispute concerns

the residency requirement.    The residency requirement mandates

that the taxpayer and the children must share the same principal

place of abode for more than half of the taxable year for which

the EIC is claimed.    Sec. 32(c)(3).




     2
      (...continued)
conceded that petitioner was eligible to claim the dependency
exemptions for her children.
                               - 5 -

     Respondent argues that petitioner and her children did not

satisfy the residency requirement because petitioner was held in

jail for the rest of the year after her arrest on June 5.

Petitioner, on the other hand, argues that she and her children

satisfied the residency requirement.    Petitioner asserts that she

resided with her children in 2002, first at the Marcum Lane home

and then at her mother-in-law’s home.   She argues that her

mother-in-law’s home was the residence for her and her children

from the day they moved there through the rest of the year.

Petitioner essentially asserts that, although she was arrested on

June 5 and held in jail for the remainder of the year, her

absence was temporary.   We agree with petitioner.

     A.   The “Same Principal Place of Abode” Test

     We now examine the residency requirement that a taxpayer and

his or her children must share the “same principal place of

abode” for more than half the year for which the EIC is claimed.

We also consider what types of absences from the home are

permitted while still allowing the home to qualify as the

principal place of abode.   Sec. 32(c)(3).

     The phrase “same principal place of abode” is not defined in

section 32 or the regulations under that section.    The

legislative history of section 32, however, provides some

guidance on the meaning of this phrase, and, specifically, how

Congress intended absences from the home to be treated.    Congress
                                 - 6 -

intended that rules similar to those for determining head of

household filing status under section 1(b) should apply in

determining whether the residency requirement of the EIC is met.

H. Conf. Rept. 101-964, at 1037 (1990), 1991-2 C.B. 560, 564.

Congress also stated that certain temporary absences, such as

those for education or illness, should not be counted against

taxpayers in determining whether taxpayers lived with a

qualifying child for more than half the taxable year for which

the EIC is claimed.     

of Household Filing Status Provisions

     We accordingly look to the head of household filing status

provisions for guidance on how absences from the home are to be

treated in determining the principal place of abode.       See 

of household provisions contain certain requirements for

a taxpayer to file a tax return as a head of household.       Sec.

2(b).     One requirement is that the taxpayer must maintain as his

or her home a household that constitutes the principal place of

abode for a qualifying child or certain other persons for more

than half the year.     Sec. 2(b)(1)(A).

     Regulations under this section further elaborate on the

treatment of absences from the home.       Sec. 1.2-2(c)(1), Income

Tax Regs.     While the taxpayer must live in the household and not

simply maintain it, temporary absences, generally out of

necessity, are permitted under certain circumstances.       Id.; see
                                 - 7 -

Prendergast v. Commissioner, 

, 480 (1972), affd. 

(9th Cir. 1973).    Nonpermanent failures to occupy the

home for reasons such as illness, education, business, vacation,

military service, or a custody agreement do not cause a taxpayer

to lose head of household filing status.    Sec. 1.2-2(c)(1),

Income Tax Regs.    A taxpayer may still have the same principal

place of abode despite a temporary absence if it is reasonable to

assume that the taxpayer will return to the household and the

taxpayer continues to maintain the household during the temporary

absence.   

Incarceration as a Temporary Absence

     We next consider how an absence from the home due to jail

confinement after an arrest (but before a conviction or other

case disposition) should be treated, taking into account the

guidance provided by the head of household regulations.    Absence

due to jail confinement after an arrest is not one of the

permitted or listed absences under the head of household

regulations.     Failure of this type of absence to be included in

the list, however, is not fatal to petitioner’s case.    Congress

intended for similar, not identical, rules to apply to determine

whether the residency requirement is met for EIC purposes.      See

H. Conf. Rept. 101-964, supra at 1037, 1991-2 C.B. at 564.      Also,

we have previously indicated that the list of reasons for a

nonpermanent failure to occupy the home in the regulations is not
                               - 8 -

an exclusive list.   Prendergast v. 

at 480.

Rather, we found that the list is only a guide for distinguishing

temporary absences for necessitous reasons from more permanent

absences for nonnecessitous reasons.   

after an arrest but before conviction is a

type of absence that is of a necessitous variety and also

nonpermanent.   An individual confined in jail after being

arrested has a unique, temporary status.     The criminal process

will continue through several stages, which may include charging,

possible plea bargaining, trial, conviction, sentencing, and

appeal, each of which will directly affect the individual’s

status.   These subsequent stages of the criminal process after

arrest will determine whether the arrested person is ultimately

incarcerated or released.   We find that an individual confined in

jail after an arrest but before conviction is necessarily, but

nonpermanently, absent from his or her home.     Such an individual

generally intends to return home, just as an individual in

military service or afflicted by illness intends to return home

once he or she is able.   Thus, the necessary, nonpermanent

absence of jail confinement is similar to those examples listed
                                 - 9 -

in the head of household regulations.3    See id.; sec. 1.2-

2(c)(1), Income Tax Regs.

     D.     Reasonableness of Assumption That Petitioner Would
            Return

     Temporary absences, like those outlined in the regulations

as well as jail confinement after an arrest, are permitted if it

is reasonable to assume the taxpayer will return to his or her

home after the temporary absence.    See sec. 1.2-2(c)(1), Income

Tax Regs.     We therefore now consider whether it is reasonable to

assume that petitioner, who was temporarily absent from her home

in 2002 due to her arrest and jail confinement but before her

conviction, would return to her home.

     We have previously established factors to rely on in making

this determination.     Hein v. Commissioner, 

(1957).

In Hein, we were asked to consider whether a taxpayer and his 72-

year-old sister, Emilie, had the same principal place of abode.

   The taxpayer and Emilie had lived together for

approximately 30 years, but Emilie had been confined in a mental

health facility for the 6 years before the year at issue and

therefore was absent from the taxpayer’s home during the year at


     3
      We also note that the Commissioner has indicated that
“detention in a juvenile facility” is a temporary absence that
counts as time lived at home for purposes of the EIC. See Serv.
Ctr. Advice 200002043 (Jan. 14, 2000); 2002 Instructions to Form
1040, line 64, Earned Income Credit; cf. sec. 1.6015-3(b)(3),
Income Tax Regs. (spouse’s temporary absence from household due
to incarceration does not prevent spouses from being considered
members of the same household).
                                - 10 -

issue.   

  In finding that the taxpayer and Emilie had

the same principal place of abode, we focused on the taxpayer’s

and Emilie’s intent that Emilie would return to the taxpayer’s

home if she were released.     

  Moreover, even

though it was unlikely that Emilie would ever recover her health

and leave the facility, we emphasized that there were no

indications that Emilie had chosen a new permanent habitation.

the factors we set forth in Hein to the

circumstances here and conclude that it was reasonable to assume

petitioner would return to her home with her children.     The

criminal case against petitioner was still pending at the end of

2002 and she had not been convicted.     As in Hein, there are no

indications in the record that petitioner intended to choose a

new home.   See 

petitioner refers to her mother-in-

law’s home as “my home” in documents she filed with the Court.

      We decline to assess objectively the strength of the

criminal charges against petitioner or require petitioner to show

the weakness of the charges against her to determine whether it

was reasonable to assume she would return to her home.     Such an

analysis would require us to assess the strengths and weaknesses

of the criminal case against petitioner.    In addition, we would

have to consider other factors such as petitioner’s financial

status and assets to estimate whether she could have made bail,
                              - 11 -

the likelihood of a plea bargain, or perhaps estimate the length

of a sentence or the likelihood of success on appeal if we found

petitioner likely would have been convicted.    These inquiries are

best left to the criminal process to address.   We shall not

assess the merits of a criminal case to determine whether a

taxpayer is eligible for the EIC.

     We conclude that, although petitioner had been arrested and

was confined in jail through the end of 2002, it was reasonable

to assume she would return to her home because she had not chosen

a new home.   Accordingly, we find that her temporary absence due

to jail confinement after her arrest but before conviction does

not disqualify her from eligibility for the EIC for 2002.4

     We note that our holding will apply only to an

extraordinarily narrow category of taxpayers because Congress has

limited the circumstances in which the EIC is available to

inmates at correctional institutions.   Income those inmates earn

is not considered income for EIC purposes.   Sec. 32(c)(2)(B)(iv).

Accordingly, any income that petitioner earns while she serves

her sentence as an inmate at a correctional facility is not taken



     4
      We note that the regulations concerning head of household
filing status also require that taxpayers maintain the household
during their temporary absence in anticipation of returning. We
are not required to consider that requirement in the EIC context.
Maintaining a household is not a requirement of sec. 32. The EIC
rules simply require that the taxpayer and the person to be
treated as a qualifying child have the same principal place of
abode. Secs. 32(c)(3), 152(c).
                              - 12 -

into account for EIC purposes.   

therefore,

applies primarily to taxpayers who have earned income outside a

correctional facility for part of a year and are then arrested

and held in jail without conviction for the remainder of the

year.

     Congress has chosen to restrict the extent to which inmates

at correctional institutions may obtain the EIC.      

from Congress, we do not find it appropriate under

these circumstances to further restrict the application of the

EIC also to exclude income a taxpayer earns before incarceration.

     E.   Conclusion

     We hold that petitioner has satisfied the residency

requirement to claim the EIC for 2002.

     To reflect the foregoing,


                                           Decision will be entered

                                       for petitioner.

     Reviewed by the Court.

     COHEN, SWIFT, WELLS, and VASQUEZ, JJ., agree with this
majority opinion.

     LARO, FOLEY, GALE, THORNTON, and GOEKE, JJ., concurring in
result only.

     CHIECHI, J., did not participate in the consideration of
this case.
                              - 13 -

     GALE, J., concurring:   While I agree with the result reached

in the principal opinion, I believe that, given the very narrow

facts of this case and the opacity of respondent's position, it

should be resolved in petitioner’s favor on the basis that she is

entitled to the benefits of Rev. Rul. 66-28, 1966-1 C.B. 31.    In

that ruling, the Commissioner, on analogous narrow facts, treated

an absence from the household as a “temporary absence due to

special circumstances” without regard to whether it was

reasonable to assume that return would occur.   In Rauenhorst v.

Commissioner, 

, 170-173 (2002), we refused to allow

counsel for the Commissioner “to argue * * * against the

principles and public guidance articulated in the Commissioner’s

currently outstanding revenue rulings.”   I conclude that

respondent's position in this case is sufficiently at variance

with the principles of Rev. Rul. 

, that petitioner

should be permitted to rely on the ruling, given respondent's

failure to address the ruling and distinguish it.

     Rev. Rul. 66-28, 1966-1 C.B. at 32, is long-standing public

guidance in which the Commissioner, following this Court's

decision in Hein v. Commissioner, 

(1957), ruled that

a “temporary absence due to special circumstances” (as used in

the dependency exemption regulations at section 1.152-1(b),

Income Tax Regs.) encompassed an extended stay in a nursing home

notwithstanding the “possibility or probability” that death would
                             - 14 -

preclude a return to the household.   In Hein v. 

, this Court had construed a “temporary absence due to

special circumstances” (as used in a predecessor of the head of

household regulations presently at section 1.2-2(c)(1), Income

Tax Regs.1) to include an extended confinement in a sanatorium

due to mental and physical illness, even though the prospects of

recovery and return to the household were minimal.   The

Commissioner had contended in Hein that, given the claimed

household member's advanced age and poor recovery prospects, her

confinement was not a temporary absence because it was

unreasonable to assume that she would return, presumably relying

on the provision, now codified in section 1.2-2(c)(1), Income Tax


     1
       The predecessor regulation was at sec. 1.1-2(c) of the
regulations under the Internal Revenue Code of 1954 and earlier
at sec. 39.12-4(c) of Regulations 118 under the Internal Revenue
Code of 1939. The regulation has at all times contained the
following language:

     The taxpayer and such other person [i.e., other
     occupant of the taxpayer's household] will be
     considered as occupying the household for such entire
     taxable year notwithstanding temporary absences from
     the household due to special circumstances. A
     nonpermanent failure to occupy the common abode by
     reason of illness, education, business, vacation,
     military service, or a custody agreement under which a
     child or stepchild is absent for less than six months
     in the taxable year of the taxpayer, shall be
     considered temporary absence due to special
     circumstances. Such absence will not prevent the
     taxpayer from being considered as maintaining a
     household if (i) it is reasonable to assume that the
     taxpayer or such other person will return to the
     household * * * .
                               - 15 -

Regs., which provides that an absence will be disregarded “if * *

* it is reasonable to assume that the taxpayer or * * * [other

household occupant] will return to the household”.    This Court

refused to apply a reasonable assumption of return standard in

the case of a dependent who was absent due to an extended

illness, concluding instead that in these circumstances “the true

test is not whether the return may be prevented by an act of God,

but rather whether there are indications that a new permanent

habitation has been chosen.”   Hein v. 

at 835.

     The Commissioner subsequently acquiesced in Hein, 1958-2

C.B. 3, and then, in 1966, adopted it in a revenue ruling.    In

Rev. Rul. 66-28, 1966-1 C.B. at 32, the Commissioner, relying on

Hein, ruled that “confinement” to a nursing home due to illness

would be considered a “temporary absence due to special

circumstances” for purposes of the dependency exemption

regulations (section 1.152-1(b), Income Tax Regs.),

notwithstanding the extended length of the absence or the

probability, given the dependent's age and condition, that return

would not occur:

          In view of the decision in the Hein case, a period
     of time during which a dependent is confined to a
     nursing home because of illness will likewise be
     considered a temporary absence due to special
     circumstances for the purpose of section 152(a)(9) of
     the Code, even though such absence is for an extended
     period of time. There must, of course, be an absence of
     an intent on the part of the taxpayer and the dependent
     to change the dependent's principal place of abode.
     The possibility or probability that death might
                              - 16 -

     intervene before the dependent returns to the
     taxpayer's household is not sufficient to make such
     absence permanent. [1966-1 C.B. at 32.]

The Commissioner in Rev. Rul. 

, thus eschewed

reliance on any reasonable assumption of return standard in the

case of absences due to extended illness and instead emphasized

the absence of intent on the part of the taxpayer or dependent to

change the dependent's place of abode.

     As the dissenting opinion points out, the “temporary absence

due to special circumstances” provisions in the head of household

regulations addressed in Hein contain the requirement that it be

“reasonable to assume that the [absent] taxpayer or * * * [absent

occupant of the taxpayer's household] will return to the

household”, whereas the “temporary absence due to special

circumstances” provisions in the dependency exemption regulations

construed in Rev. Rul. 

, contain no such provision.

The dissenting opinion argues that this distinguishes Rev. Rul.

, from the instant case, which involves the head of

household regulations.   I disagree.   There is no indication in

Rev. Rul. 

, that the Commissioner was seeking to

distinguish the rules applicable to temporary absences due to

illness in the case of the dependency exemption regulations

versus the head of household regulations.    To the contrary, the

ruling characterizes the two regulations as “identical”, thereby

minimizing the significance of the reasonable assumption of
                             - 17 -

return clause contained in one of them--at least in the case of

absences due to extended illness.   I believe the fair reading of

Rev. Rul. 

, is that the Commissioner decided, in the

case of absences due to extended illness, to apply the Hein test

of intent and give little or no weight to any reasonable

assumption of return, whether for purposes of the dependency

exemption regulations or the head of household regulations.

     Rev. Rul. 

, has stood unmodified for more than

40 years and is now recognized by Congress as part of the present

law defining eligibility for the dependency exemption, head of

household filing status, and the earned income credit (the rules

for which incorporate the head of household standards).    For

example, the description of the present law concerning the

dependency exemption contained in H. Conf. Rept. 108-696, at 56

(2004), states:

     A taxpayer or other individual does not fail to be
     considered a member of a household because of
     "temporary" absences due to special circumstances,
     including absences due to illness, education, business,
     vacation, and military service. * * * Indefinite
     absences that last for more than the taxable year may
     be considered "temporary". For example, the IRS has
     ruled that an elderly woman who was indefinitely
     confined to a nursing home was temporarily absent from
     a taxpayer's household. Under the facts of the ruling,
     the woman had been an occupant of the household before
     being confined to a nursing home, the confinement had
     extended for several years, and it was possible that
     the woman would die before becoming well enough to
     return to the taxpayer's household. There was no
     intent on the part of the taxpayer or the woman to
     change her principal place of abode. 42
                                - 18 -
     42
          Rev. Rul. 

, 1966-1 C.B. 31.

Consistent with the approach in Rev. Rul. 

, the

report also treats the principles of the ruling as equally

applicable for dependency exemption, earned income credit, and

head of household purposes.     Elsewhere in the same discussion of

present law, the report describes the residency test for the

earned income credit as follows:

          The residency test is satisfied if the individual
     has the same principal place of abode as the taxpayer
     for more than one half of the taxable year. * * * As
     under the dependency exemption (and head of household
     filing status), temporary absences due to special
     circumstances, including absences due to illness,
     education, business, vacation, and military service are
     not treated as absences for purposes of determining
     whether the residency test is satisfied. * * * [H.
     Conf. Rept. 108-696, supra at 58; emphasis added.]

That is, the test for temporary absence due to special

circumstance in the case of the earned income credit is the same

“as under the dependency exemption (and head of household filing

status)”; nowhere is it suggested that the test of temporary

absence for purposes of head of household filing status and the

earned income credit is more stringent than, or otherwise

different from, the test applied for purposes of the dependency

exemption.     To the same effect, see S. Rept. 108-257, at 81

(2004); H. Rept. 108-126, at 181 (2003); Jt. Comm. on Taxation,

General Explanation of Tax Legislation Enacted in the 108th

Congress, at 120 n.199 (J. Comm. Print 2005).
                              - 19 -

     The Commissioner, then, has issued widely recognized public

guidance in which he equates the temporary absence provisions of

the dependency exemption and head of household regulations, and

indicates that at least in certain narrow circumstances little or

no weight will be given to the reasonable assumption of return

provision.   Respondent's position in this case is far from clear.

The case was submitted without briefs, and the only argument

respondent advances to support his conclusion that petitioner

fails to satisfy the residency test is as follows:


          Respondent's position is that sharing of the same
     principal place of abode requires that a "qualifying
     child" live with the taxpayer for more than one-half of
     the taxable year. The test is a "simple residence
     test" that bases eligibility on whether the taxpayer
     lived with her child for more than six months of the
     taxable year. Sherbo v. Commissioner, 

,
     654-55 (8th Cir. 2001).

          Petitioner and her children could not have lived
     together for more than half of the year because
     petitioner was in state custody for more than half of
     the 2002 taxable year.


Respondent does not even address the “temporary absence due to

special circumstances” provision of the head of household

regulations, let alone the reasonable assumption of return clause

therein or Rev. Rul. 

.     Thus, I do not know whether

respondent's position is that a parent's pretrial incarceration

does not constitute a “temporary absence due to special

circumstances” since it isn't among the listed circumstances in
                              - 20 -

the regulation, or that petitioner's incarceration, though

concededly a special circumstance, is nonetheless disqualifying

because it was not reasonable to assume that petitioner would

return.   What is known about the Commissioner's position is that

he has extended Rev. Rul. 

, in Service Center Advice

to cover a child's pretrial and post-conviction incarceration.

In Service Center Advice 200002043 (Jan. 14, 2000), the

Commissioner advised whether a child's detention in a juvenile

facility for a potentially extended period would qualify as a

temporary absence due to special circumstances within the meaning

of section 1.2-2(c)(1), Income Tax Regs. (and, consequently, for

purposes of eligibility for the earned income credit).    The

Advice concludes:   “Detention in a juvenile facility pending

trial is a temporary absence * * * due to special circumstances

if there is no intent on the part of the taxpayer and child to

change the child's principal place of abode.”   Explaining the

conclusion, the Advice states:

     Detention in a juvenile facility pending trial can be a
     temporary absence notwithstanding the possibility that
     the child may be detained after the trial for an
     extended period of time in a juvenile facility. As
     indicated by the Hein case and Rev. Rul. 66-28, the
     length of the person's absence from the household does
     not, by itself, determine whether the absence is
     temporary. What is determinative is whether there is
     any intent to change the principal place of abode.
     [Emphasis added.]

The Commissioner thus treated as virtually self-evident the

application of the principles of Hein and Rev. Rul. 66-28 to an
                              - 21 -

incarceration scenario (albeit of a child rather than an adult).

The Commissioner's application of Rev. Rul. 66-28 to a juvenile

incarceration included the principle that it is the existence of

any intent to change the principal place of abode that is

“determinative” in this particular circumstance.2   While it is

recognized that informal guidance such as a Service Center Advice

does not bind the Commissioner as a revenue ruling does under

Rauenhorst v. Commissioner, 

(2002), such informal

guidance is relevant in determining the scope of the principles

in a revenue ruling.   See 

n.12.

     In these circumstances, absent a reasoned argument from

respondent that might distinguish Rev. Rul. 

, I do

not believe respondent should be permitted to maintain the

position he has taken in this case.    Under Rauenhorst, I believe

petitioner is entitled to rely on Rev. Rul. 66-28, wherein the

Commissioner attributed little or no weight to the reasonableness

of an assumption of return.   The analogies between the facts of

this case and those of Rev. Rul. 66-28 are close.   Absences due

to extended illness or pretrial incarceration share significant

similarities.   Both absences are essentially involuntary.

Moreover, both create particular difficulties in applying the


     2
       Notably, the Commissioner also treated this
“determinative” aspect of Rev. Rul. 66-28, 1966-1 C.B. 31, as
applicable in interpreting sec. 1.2-2(c)(1), Income Tax Regs.,
without regard to the fact that Rev. Rul. 

, construed
sec. 1.152-1(b), Income Tax Regs.
                              - 22 -

reasonable assumption of return clause of the regulations.   In

the case of extended illness, applying the reasonable assumption

of return standard requires the tax administrator to engage in a

medical prognosis that is difficult and perhaps unseemly.    In the

case of pretrial incarceration, such application requires the tax

administrator to speculate about the outcome of the criminal

process in a manner that may be inconsistent with the presumption

of innocence.

     Limiting this case narrowly to its circumstances involving

an unconvicted taxpayer who is incarcerated awaiting trial, I am

satisfied with the principal opinion's finding that petitioner

had not, as of the close of 2002, evidenced any intent to change

households.   Accordingly, under the principles of Rev. Rul. 66-

, petitioner is entitled to treat her absence as

“temporary * * * due to special circumstances” within the meaning

of section 1.2-2(c)(1), Income Tax Regs.

     THORNTON, J., agrees with this concurring opinion.
                                - 23 -

     GOEKE, J., concurring: I concur in the result reached by the

adopted opinion.   I write separately to emphasize the very

limited nature of the holding reached today.     That is, where a

taxpayer is involuntarily removed from her principal place of

abode and has not manifested any intent to change that abode, her

absence shall be considered temporary for purposes of eligibility

for the earned income credit.    See Hein v. Commissioner, 

, 835 (1957).

     We do not adopt a general intent test that would be

inconsistent with the reasonableness of return test of section

1.2-2(c)(1) of the income tax regulations.1    In evaluating

whether an absence was temporary for purposes of head of

household status, this Court in Hein recognized that special

circumstances exist whereby a taxpayer (or dependent) never

intending to change homes has been involuntarily removed from the

home and confined to a separate location.     Despite a regulation2

requiring an analysis of whether it was reasonable to assume the

dependent would return home, we held that the possibility of the

dependent’s absence becoming permanent, by the dependent’s



     1
       The legislative history to the earned income credit (EIC)
indicates Congress’s intent that we are to apply rules similar to
those applied in determining head of household status when
determining whether the residency requirements of the EIC have
been met. H. Conf. Rept. 101-694, at 1037 (1990), 1991-2 C.B.
560, 564.
     2
       The regulation at issue was the predecessor to sec. 1.2-
2(c)(1) at sec. 39.12-4(c) of Regulations 118 under the Internal
Revenue Code of 1939.
                               - 24 -

passing, before the dependent is able to return to the home

should not prevent eligibility for relief where there is no

evidence she intended to change homes.    While not finding the

regulation invalid, we stated: “[W]e are unwilling to conclude

that it was the intention of the Congress that, where a child or

other dependent is sent to a hospital under circumstances that

make it likely he will die, this, in itself, is sufficient to

change the principal place of abode.”    

criticisms apply equally to the result reached

by this Court in Hein.    Yet in the many years since Hein was

decided, the Commissioner first acquiesced in our holding, 1958-2

C.B. 3, 6, and later adopted our holding in Rev. Rul. 66-28,

1966-1 C.B. 31.    See also Serv. Ctr. Advice 200002043 (Jan. 14,

2000) (citing Hein in indicating that “detention in a juvenile

facility” pending trial is a temporary absence for purposes of

the earned income credit).    In turn, Congress has cited the

Commissioner’s position in Rev. Rul. 

, in several

statements of the present law with respect to residency

requirements.   See H. Conf. Rept. 108-696, at 56 n.42 (2004); S.

Rept. 108-257, at 81 n.120 (2004); H. Conf. Rept. 108-126, at 179

n.327 (2003).     Thus, whatever the merits of the criticism of

Hein may have been, the Commissioner and Congress now seemingly

agree with its result.

     I believe Hein applies to the very limited facts before the

Court today.    Where an accused is involuntarily detained in jail
                               - 25 -

pending her criminal trial, the absence is temporary for purposes

of determining eligibility for the earned income credit.    I see

the petitioner’s absence in this case as analogous to a departure

caused by serious illness and not a circumstance in which it is

appropriate to apply the reasonableness of return test.    It is

contrary to our criminal justice system to presume petitioner’s

guilt before her conviction.   The possibility that her absence

would become permanent by virtue of her ultimate conviction

should not lessen the temporary nature of her detention and

absence in the months preceding her trial.

     COHEN, LARO, and THORNTON, JJ., agree with this concurring
opinion.
                                - 26 -

     HALPERN, J., dissenting:

I.   Introduction

      I do not agree with the analysis set forth in the principal

(first) opinion, authored by Judge Kroupa, or the concurring

opinions authored by Judges Gale and Goeke.     The issue that

separates us is the standard for determining whether, on account

of petitioner’s arrest and detention on June 5, 2002, she was

temporarily absent from the household that, up until that date,

she had physically occupied with her two children.     To determine

whether a taxpayer’s absence from a household is temporary,

section 1.2-2(c)(1), Income Tax Regs., imposes a reasonable-

expectation-of-return test.   For different reasons, the authors

of the principal and concurring opinions abandon that test in

favor of a single factor inquiry as to whether there is a lack of

evidence of intent to change the place of abode.

      Section 1.2-2(c)(1), Income Tax Regs., has the force and

effect of law unless it is unreasonable under the statute.       See,

e.g., Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

(1984); Natl. Muffler Dealers Association, Inc. v.

United States, 

(1979).      Neither the principal

opinion nor either of the concurring opinions makes a convincing

argument that the regulation is unreasonable under the statute.

Moreover, we do not have the benefit of the parties’ thoughts on

that or much of anything.   We granted the parties’ motion for
                               - 27 -

leave to submit the case without a trial on the basis of the

pleadings, pretrial memoranda, and the stipulation of facts.    We

have no briefs.    The pretrial memoranda are uninformative of the

issues dividing the Court.    The only relevant portion of

respondent’s memorandum is as follows:

           Respondent’s position is that sharing of the same
      principal place of abode requires that a “qualifying
      child” live with the taxpayer for more than one-half of
      the taxable year. The test is a “simple residence
      test” that based eligibility on whether the taxpayer
      lived with her child for more than six months of the
      taxable year. Sherbo v. Commissioner, 

,
      654-655 (8th Cir. 2001).

Petitioner, who is pro se, fails to address the issues at all.

      Before proceeding any further, I would ask the parties for

briefs.    The Court not having done so, I set forth my

disagreements with the principal and concurring opinions.

II.   Discussion

      A.   The Same Principal Place of Abode

      The principal question before us is whether petitioner is

eligible for the earned income credit allowed by section 32.    The

answer depends on whether petitioner and her two children had the

same “principal place of abode” for at least 6 months of 2002.

Sec. 32(c)(3)(A)(ii).    Petitioner was arrested on June 5, 2002,

and held in the Lane County, Oregon, jail until April 26, 2003,

when she was convicted of murder and remanded to State custody to

serve a life sentence.
                               - 28 -

     To determine whether petitioner and her children had the

same principal place of abode for at least 6 months during 2002,

we look to section 1.2-2(c)(1), Income Tax Regs.     Pursuant to

that section, individuals have the same abode during periods that

they occupy the same household.    As pertinent to our present

inquiry, we have interpreted the term “occupy” to mean

“physically occupy”.   See Prendergast v. Commissioner, 

, 479 (1972), affd. 

(9th Cir. 1973); Biolchin v.

Commissioner, T.C. Memo. 1969-197, affd. 

(7th Cir.

1970).    Petitioner did not physically occupy the same household

as her children after June 5, 2002.     She and her children,

therefore, did not physically occupy the same household for at

least 6 months during 2002.    Nevertheless, section 1.2-2(c)(1),

Income Tax Regs., provides that, in determining whether an

individual occupies a household for an entire year, her absence

during some or all of that year will be excused if, among other

things, it is both temporary and due to special circumstances.      I

agree with the principal opinion that we should apply a similar

exception in determining whether petitioner and her children co-

occupied the same household for more than 6 months during 2002

for purposes of the earned income credit.

     B.    Temporary Absence Due to Special Circumstances

     Section 1.2-2(c), Income Tax Regs., provides that a

nonpermanent failure to occupy the common abode by reason of,
                                - 29 -

among other things, illness, education, business, vacation, or

military service shall be considered temporary absences due to

special circumstances.    I agree with the principal opinion that

the list of special circumstances in section 1.2-2(c)(1), Income

Tax Regs., is not exclusive.     See Prendergast v. Commissioner, 

.   I have no quarrel with the conclusions in the

principal opinion that (1) “Jail confinement after an arrest is a

type of absence that is of a necessitous variety”, see principal

op. p. 8, and (2) “jail confinement is similar to those examples

listed in * * * [section 1.2-2(c)(1), Income Tax Regs.]”, see

principal op. pp. 8-9.

     C.   The Reasonable-Expectation-of-Return Test

     At the end of 2002, there was insufficient information to

say with certainty whether petitioner’s absence from the

household on account of her arrest and incarceration was

temporary (and therefore an excusable special circumstance) or

permanent (and therefore inexcusable, whether a special

circumstance or not).     The reasonable-expectation-of-return test

solves that dilemma.     In pertinent part, section 1.2-2(c)(1),

Income Tax Regs., provides:     “Such absence [i.e., an absence due

to a special circumstance] will not prevent the taxpayer from

being considered as maintaining a household if * * * it is

reasonable to assume that the taxpayer or such other person will

return to the household”.
                                 - 30 -

     Thus, where, at the time a determination of abode must be

made, it cannot be determined whether a person’s absence is

permanent, the absence will be ignored if it is reasonable to

assume that the person will return.1       For instance, assume that

petitioner had been arrested on strong evidence of child abuse.

At the time of her arrest, or at any time thereafter while the

household still existed and she remained in jail, no one could

say with certainty that her absence was permanent.        Given the

strong evidence of child abuse, however, it would be reasonable

to assume that her absence would be permanent, no matter how the

charges against her were resolved.        In contrast, it might be

unreasonable to make the same assumption if the only charge

against her were that she had stolen money that she had expended

on support for her children.2

     D.   Hein v. Commissioner

     In Hein v. Commissioner, 

(1957), a Court-

reviewed opinion, we held that a lack of a showing of the intent

permanently to abide elsewhere is dispositive of the issue


     1
        And, in circumstances not here pertinent, the taxpayer
continues to maintain the household or a substantially equivalent
household in anticipation of her or her co-occupant’s return.
Sec. 1.2-2(c)(1), Income Tax Regs.
     2
        If it is reasonable to assume that a taxpayer absent from
her household on account of a special condition will return to
the household, then her death prior to her return (making her
absence permanent) would not seem to be a disabling factor
because of the language of sec. 1.2-2(c)(1), Income Tax Regs.,
dealing with death during the taxable year.
                                 - 31 -

whether an absence is to be considered temporary or permanent.

We were interpreting language virtually identical to that in

section 1.2-2(c)(1), Income Tax Regs.      The taxpayer in question

had claimed head of household status predicated on his

maintaining a common household with his invalid sister.      The

sister was his dependent, and, although confinement was not

absolutely necessary (she could have been maintained elsewhere

with 24-hour nursing care), she had been confined for many years

to a sanatorium on account of mental illness and had little, if

any, chance of recovering.      If she did recover, however, the

taxpayer intended that she would again live in his home.      The

Commissioner’s principal argument was that, because of the

seriousness of the sister’s illness, it was unreasonable to

assume that she would return to the taxpayer’s household.        We

answered: “[T]he true test is not whether the return may be

prevented by an act of God, but rather whether there are

indications that a new permanent habitation has been chosen.”

Hein v. 

at 835.

     E.     The Commissioner’s Pronouncements

     In 1958, the Commissioner announced his acquiescence in

Hein.     1958-2 C.B. 3, 6.   The boilerplate accompanying the

announcement states, among other things, that the Commissioner’s

acquiescence in an adverse decision can be relied on only with

respect to the application of the law to the facts in the
                              - 32 -

particular case, and that the acquiescence means acceptance of

the conclusion reached and does not necessarily mean acceptance

and approval of any or all of the reasons assigned by the Court

for its conclusions.   

     In 1966, the Commissioner issued Rev. Rul. 66-28, 1966-1

C.B. 31, which concerns whether an individual qualified as the

taxpayer’s dependent under then section 152(a)(9).   The ruling

addresses the question of whether the individual, who was

indefinitely confined to a nursing home because of an illness

requiring constant medical care, was to be considered temporarily

absent from her principal place of abode during such confinement.

The pertinent regulation, then and now, contains a provision

dealing with temporary absence due to special circumstances

similar to the temporary absence provision in section 1.2-

2(c)(1), Income Tax Regs.   See section 1.152-1(b), Income Tax

Regs.   The provisions are not identical, however, in that section

1.152-1(b), Income Tax Regs., unlike section 1.2-2(c)(1), Income

Tax Regs., does not include the reasonable-expectation-of-return

test.

     Relying on the similarity of the two provisions and this

Court’s interpretation of the predecessor of section 1.2-2(c)(1),

Income Tax Regs., in Hein v. 

, the

Commissioner concluded that indefinite confinement to a nursing

home because of illness will likewise be considered a temporary
                                 - 33 -

absence due to special circumstances for purposes of then section

152(a)(9) even though such absence is for an extended period of

time.     The Commissioner added:   “There must, of course, be an

absence of an intent on the part of the taxpayer and the

dependent to change the dependent's principal place of abode.

The possibility or probability that death might intervene before

the dependent returns to the taxpayer's household is not

sufficient to make such absence permanent.”

     Finally, in Service Center Advice 200002043 (Jan. 14, 2000),

the Commissioner states the following with respect to section

1.2-2(c)(1), Income Tax Regs.:

          Detention in a juvenile facility pending trial can
     be a temporary absence notwithstanding the possibility
     that the child may be detained after the trial for an
     extended period of time in a juvenile facility. As
     indicated by the Hein case and Rev. Rul. 66-28, the
     length of the person's absence from the household does
     not, by itself, determine whether the absence is
     temporary. What is determinative is whether there is
     any intent to change the principal place of abode.
     [Emphasis added.]

For whatever it adds, the advisory does make the assumption that

the child is not being tried as an adult.

        F.   Validity of the Regulations

        The three pronouncements could be read to indicate an

erosion of the Commissioner’s reliance on the reasonable-

expectation-of-return test.      Nevertheless, none of them is

explicit in abandoning that test, and I am not prepared to

conclude that the Commissioner has, sub silentio, amended the
                                   - 34 -

Secretary’s regulations.        Moreover, the principal opinion appears

to uphold the regulations.        It cites section 1.2-2(c)(1), Income

Tax Regs., and claims:     “We * * * consider whether it is

reasonable to assume that petitioner, who was temporarily absent

from her home in 2002 due to her arrest and jail confinement but

before her conviction, would return to her home.”        Principal op.

p. 9.   It characterizes Hein v. Commissioner, 

(1957),

as having “previously established factors to rely on in making

this determination.”      

to “apply the factors we set

forth in Hein to the circumstances here and concludes that it was

reasonable to assume petitioner would return to her home with her

children.”   

   It declines, however, “to assess

objectively the strength of the criminal charges against

petitioner or require petitioner to show the weakness of the

charges against her to determine whether it was reasonable to

assume she would return to her home.”        

pendency

of the criminal case against petitioner at the end of 2002, and

petitioner’s reference to her mother-in-law’s home as her “home”,

the only factor the principal opinion mentions is:        “As in Hein,

there are no indications in the record that petitioner intended

to choose a new home.”      

  “[A]lthough

petitioner has been arrested and was confined in jail through the

end of 2002, it was reasonable to assume she would return to her
                              - 35 -

home because she had not chosen a new home.”   

(emphasis

added).

     The reasonable-expectation-of-return test presents a

question of fact.   Petitioner bears the burden of proving by a

preponderance of the evidence that it is reasonable to assume

that she will return to the household.   See Rule 142(a).   The

evidence in this case shows that, on June 5, 2002, petitioner was

removed from her household by reason of her arrest and did not

return.   But for the finding in the principal opinion with

respect to her intent, petitioner has failed to produce any

evidence that it is reasonable to assume that she will return.3

The conclusion in the principal opinion that, as a matter of law,

petitioner’s showing of intent is sufficient both follows Hein v.

, and sidesteps the factual inquiry required

by the regulations.   My difficulty with the principal opinion is

that it does not reconcile Hein with the reasonable-expectation-

of-return test.   If the premise of the principal opinion is that

the reasonable-expectation-of-return test is invalid, the

principal opinion should say so and explain why.   If the

principal opinion does not consider the test to be invalid, then


     3
        For the sake of argument, I am willing to concede that
petitioner has proven that she intended to return home, although
in this fully stipulated case that fact is not stipulated and the
author of the principal opinion makes the finding that petitioner
had not chosen a new home based in part on the absence of
“indications in the record that petitioner intended to choose a
new home.” Principal op. p. 10.
                                - 36 -

it should explain how it is consistent with Hein, which I read as

disregarding a multiple factor analysis in favor of establishing

the lack of evidence of intent to change the place of abode as

the sole deciding factor.

     The Commissioner’s acquiescence in Hein, to say the least,

muddies the waters.

     G.    Rauenhorst v. Commissioner

     In Rauenhorst v. Commissioner, 

(2002), we

refused “to allow * * * [IRS] counsel to argue the legal

principles of * * * opinions against the principles and public

guidance articulated in the Commissioner's currently outstanding

revenue rulings.”     

   The concurring opinions

would, explicitly, in the case of Judge Gale, and, implicitly, in

the case of Judge Goeke, invoke Rauenhorst to foreclose

respondent from disavowing his acquiescence in Hein v.

, and his ruling, Rev. Rul. 

.

     First, I must point out the respondent has disavowed

neither.    This is a fully stipulated case, the parties did not

file briefs, there was no argument, and respondent’s position in

his trial memorandum disavowed nothing.

     Second, because of the boilerplate accompanying his

acquiescence, respondent’s acquiescence in Hein is ambiguous as

to what, exactly, he is acquiescing, other than the conclusion

reached:    The Commissioner’s acquiescence “does not necessarily
                              - 37 -

mean acceptance and approval of any or all of the reasons

assigned by the Court for its conclusions.”   1958-2 C.B. at 3.

     Third, Rev. Rul. 

, is distinguishable in that it

is interpreting a regulation, sec. 1.152-1(b), Income Tax Regs.,

that does not contain the reasonable-expectation-of-return test,

contained in section 1.2-2(c)(1), Income Tax Regs.   See supra

note 3.   Perhaps Rev. Rul. 

, is best read as

acknowledging that nursing home stays are “temporary absences due

to special circumstances” if done with the intent or hope of one

day returning, rather than abrogating a different regulation’s

requirement that such a hope to return be reasonable.   The ruling

is also distinguishable in that a nursing home stay, although it

may be necessitous, is not compelling in the same way that a stay

in jail is compelling.

     Fourth, even if not distinguishable, Revenue Rulings do not

have the force of regulations.   E.g., Estate of Kincaid v.

Commissioner, 

(1985).   Indeed, the Supreme Court has

held:   “[T]he Commissioner’s acquiescence in an erroneous

decision, published as a ruling, cannot in and of itself bar the

United States from collecting a tax otherwise lawfully due.”

Dixon v. United States, 

, 73 (1965).

     Finally, and most importantly, are we really prepared to

interpret a ruling that, it seems by stealth, overrules a
                              - 38 -

regulation without asking for the Commissioner’s position and

without deciding for ourselves whether the regulation is valid?

     H.   Policy Concerns

     If we are to be influenced by sympathy for petitioner in

light of what we discern to be the policy behind section 32, we

should consider that, to the extent we have crafted a rule of

law, it may have unintended consequences for other taxpayers

deserving of our sympathy.   It is stipulated:   “At the time of

petitioner’s arrest, the father of petitioner’s two children,

Charles Rowe, moved into the Rowe family home with petitioner’s

two children.”   I assume that, under the tie-breaking rule of

section 32(c)(1)(C)(ii)(I), awarding the credit to the parent

residing with the children for the longest period during the

year, petitioner, having been deemed by the principal opinion to

have resided with the children for the whole of 2002 (as opposed

to the father’s approximately 7 months), gets the credit.4   To

take another case, assume that a single parent living with her

mother and young children is, as was the dependent in Hein v.

Commissioner, 

(1957), institutionalized for illness

with no actual chance of return.   Would the children remain the

qualifying children of the mother (to the exclusion of the

grandmother) under the tie-breaking rule of what is now section



     4
        The referenced tie-breaking rule is now at sec.
152(c)(4)(B)(i).
                               - 39 -

152(c)(4)(A)(i), entitling the mother (and not the grandmother)

to head of household status, the earned income credit, and

dependency exemptions on account of the children?    See secs.

2(b)(1)(A)(i), 32(c)(1)(A)(i), 152(a)(1), respectively.    What

policy would drive that result?

III.   Conclusion

       This case presents too many questions for disposition

without briefing by the parties.    Therefore, I respectfully

dissent.

     COLVIN, MARVEL, HAINES, WHERRY, and HOLMES, JJ., agree with
this dissenting opinion.