Cynthia L. Rowe - Page 11

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          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           

               4We 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).                                             

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