Cynthia L. Rowe - Page 19

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               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             

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