Cynthia L. Rowe - Page 14

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          preclude a return to the household.  In Hein v. Commissioner,               
          supra, 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 * * * .                                                      

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