Cynthia L. Rowe - Page 13

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               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           

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