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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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