- 19 -
The Commissioner, then, has issued widely recognized public
guidance in which he equates the temporary absence provisions of
the dependency exemption and head of household regulations, and
indicates that at least in certain narrow circumstances little or
no weight will be given to the reasonable assumption of return
provision. Respondent's position in this case is far from clear.
The case was submitted without briefs, and the only argument
respondent advances to support his conclusion that petitioner
fails to satisfy the residency test is as follows:
Respondent's position is that sharing of the same
principal place of abode requires that a "qualifying
child" live with the taxpayer for more than one-half of
the taxable year. The test is a "simple residence
test" that bases eligibility on whether the taxpayer
lived with her child for more than six months of the
taxable year. Sherbo v. Commissioner, 255 F.3d 650,
654-55 (8th Cir. 2001).
Petitioner and her children could not have lived
together for more than half of the year because
petitioner was in state custody for more than half of
the 2002 taxable year.
Respondent does not even address the “temporary absence due to
special circumstances” provision of the head of household
regulations, let alone the reasonable assumption of return clause
therein or Rev. Rul. 66-28, supra. Thus, I do not know whether
respondent's position is that a parent's pretrial incarceration
does not constitute a “temporary absence due to special
circumstances” since it isn't among the listed circumstances in
Page: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NextLast modified: May 25, 2011