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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
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