Cynthia L. Rowe - Page 22

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          reasonable assumption of return clause of the regulations.  In              
          the case of extended illness, applying the reasonable assumption            
          of return standard requires the tax administrator to engage in a            
          medical prognosis that is difficult and perhaps unseemly.  In the           
          case of pretrial incarceration, such application requires the tax           
          administrator to speculate about the outcome of the criminal                
          process in a manner that may be inconsistent with the presumption           
          of innocence.                                                               
               Limiting this case narrowly to its circumstances involving             
          an unconvicted taxpayer who is incarcerated awaiting trial, I am            
          satisfied with the principal opinion's finding that petitioner              
          had not, as of the close of 2002, evidenced any intent to change            
          households.  Accordingly, under the principles of Rev. Rul. 66-             
          28, supra, petitioner is entitled to treat her absence as                   
          “temporary * * * due to special circumstances” within the meaning           
          of section 1.2-2(c)(1), Income Tax Regs.                                    
               THORNTON, J., agrees with this concurring opinion.                     

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