Cynthia L. Rowe - Page 21

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          incarceration scenario (albeit of a child rather than an adult).            
          The Commissioner's application of Rev. Rul. 66-28 to a juvenile             
          incarceration included the principle that it is the existence of            
          any intent to change the principal place of abode that is                   
          “determinative” in this particular circumstance.2  While it is              
          recognized that informal guidance such as a Service Center Advice           
          does not bind the Commissioner as a revenue ruling does under               
          Rauenhorst v. Commissioner, 119 T.C. 157 (2002), such informal              
          guidance is relevant in determining the scope of the principles             
          in a revenue ruling.  See id. at 173 n.12.                                  
               In these circumstances, absent a reasoned argument from                
          respondent that might distinguish Rev. Rul. 66-28, supra, I do              
          not believe respondent should be permitted to maintain the                  
          position he has taken in this case.  Under Rauenhorst, I believe            
          petitioner is entitled to rely on Rev. Rul. 66-28, wherein the              
          Commissioner attributed little or no weight to the reasonableness           
          of an assumption of return.  The analogies between the facts of             
          this case and those of Rev. Rul. 66-28 are close.  Absences due             
          to extended illness or pretrial incarceration share significant             
          similarities.  Both absences are essentially involuntary.                   
          Moreover, both create particular difficulties in applying the               

               2 Notably, the Commissioner also treated this                          
          “determinative” aspect of Rev. Rul. 66-28, 1966-1 C.B. 31, as               
          applicable in interpreting sec. 1.2-2(c)(1), Income Tax Regs.,              
          without regard to the fact that Rev. Rul. 66-28, supra, construed           
          sec. 1.152-1(b), Income Tax Regs.                                           

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