Cynthia L. Rowe - Page 23

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               GOEKE, J., concurring: I concur in the result reached by the           
          adopted opinion.  I write separately to emphasize the very                  
          limited nature of the holding reached today.  That is, where a              
          taxpayer is involuntarily removed from her principal place of               
          abode and has not manifested any intent to change that abode, her           
          absence shall be considered temporary for purposes of eligibility           
          for the earned income credit.  See Hein v. Commissioner, 28 T.C.            
          826, 835 (1957).                                                            
               We do not adopt a general intent test that would be                    
          inconsistent with the reasonableness of return test of section              
          1.2-2(c)(1) of the income tax regulations.1  In evaluating                  
          whether an absence was temporary for purposes of head of                    
          household status, this Court in Hein recognized that special                
          circumstances exist whereby a taxpayer (or dependent) never                 
          intending to change homes has been involuntarily removed from the           
          home and confined to a separate location.  Despite a regulation2            
          requiring an analysis of whether it was reasonable to assume the            
          dependent would return home, we held that the possibility of the            
          dependent’s absence becoming permanent, by the dependent’s                  

               1 The legislative history to the earned income credit (EIC)            
          indicates Congress’s intent that we are to apply rules similar to           
          those applied in determining head of household status when                  
          determining whether the residency requirements of the EIC have              
          been met.  H. Conf. Rept. 101-694, at 1037 (1990), 1991-2 C.B.              
          560, 564.                                                                   
               2 The regulation at issue was the predecessor to sec. 1.2-             
          2(c)(1) at sec. 39.12-4(c) of Regulations 118 under the Internal            
          Revenue Code of 1939.                                                       

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