- 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, 119 T.C. 157, 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. 66-28, supra, 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, 28 T.C. 826 (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
Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 NextLast modified: May 25, 2011