Cynthia L. Rowe - Page 20

                                       - 20 -                                         
          the regulation, or that petitioner's incarceration, though                  
          concededly a special circumstance, is nonetheless disqualifying             
          because it was not reasonable to assume that petitioner would               
          return.  What is known about the Commissioner's position is that            
          he has extended Rev. Rul. 66-28, supra, in Service Center Advice            
          to cover a child's pretrial and post-conviction incarceration.              
          In Service Center Advice 200002043 (Jan. 14, 2000), the                     
          Commissioner advised whether a child's detention in a juvenile              
          facility for a potentially extended period would qualify as a               
          temporary absence due to special circumstances within the meaning           
          of section 1.2-2(c)(1), Income Tax Regs. (and, consequently, for            
          purposes of eligibility for the earned income credit).  The                 
          Advice concludes:  “Detention in a juvenile facility pending                
          trial is a temporary absence * * * due to special circumstances             
          if there is no intent on the part of the taxpayer and child to              
          change the child's principal place of abode.”  Explaining the               
          conclusion, the Advice states:                                              
               Detention in a juvenile facility pending trial can be a                
               temporary absence notwithstanding the possibility that                 
               the child may be detained after the trial for an                       
               extended period of time in a juvenile facility.  As                    
               indicated by the Hein case and Rev. Rul. 66-28, the                    
               length of the person's absence from the household does                 
               not, by itself, determine whether the absence is                       
               temporary.  What is determinative is whether there is                  
               any intent to change the principal place of abode.                     
               [Emphasis added.]                                                      
          The Commissioner thus treated as virtually self-evident the                 
          application of the principles of Hein and Rev. Rul. 66-28 to an             

Page:  Previous  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  Next

Last modified: May 25, 2011