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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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