- 24 -
passing, before the dependent is able to return to the home
should not prevent eligibility for relief where there is no
evidence she intended to change homes. While not finding the
regulation invalid, we stated: “[W]e are unwilling to conclude
that it was the intention of the Congress that, where a child or
other dependent is sent to a hospital under circumstances that
make it likely he will die, this, in itself, is sufficient to
change the principal place of abode.” Id.
The dissent’s criticisms apply equally to the result reached
by this Court in Hein. Yet in the many years since Hein was
decided, the Commissioner first acquiesced in our holding, 1958-2
C.B. 3, 6, and later adopted our holding in Rev. Rul. 66-28,
1966-1 C.B. 31. See also Serv. Ctr. Advice 200002043 (Jan. 14,
2000) (citing Hein in indicating that “detention in a juvenile
facility” pending trial is a temporary absence for purposes of
the earned income credit). In turn, Congress has cited the
Commissioner’s position in Rev. Rul. 66-28, supra, in several
statements of the present law with respect to residency
requirements. See H. Conf. Rept. 108-696, at 56 n.42 (2004); S.
Rept. 108-257, at 81 n.120 (2004); H. Conf. Rept. 108-126, at 179
n.327 (2003). Thus, whatever the merits of the criticism of
Hein may have been, the Commissioner and Congress now seemingly
agree with its result.
I believe Hein applies to the very limited facts before the
Court today. Where an accused is involuntarily detained in jail
Page: Previous 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 NextLast modified: May 25, 2011