Cynthia L. Rowe - Page 26

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               HALPERN, J., dissenting:                                               
          I.  Introduction                                                            
               I do not agree with the analysis set forth in the principal            
          (first) opinion, authored by Judge Kroupa, or the concurring                
          opinions authored by Judges Gale and Goeke.  The issue that                 
          separates us is the standard for determining whether, on account            
          of petitioner’s arrest and detention on June 5, 2002, she was               
          temporarily absent from the household that, up until that date,             
          she had physically occupied with her two children.  To determine            
          whether a taxpayer’s absence from a household is temporary,                 
          section 1.2-2(c)(1), Income Tax Regs., imposes a reasonable-                
          expectation-of-return test.  For different reasons, the authors             
          of the principal and concurring opinions abandon that test in               
          favor of a single factor inquiry as to whether there is a lack of           
          evidence of intent to change the place of abode.                            
               Section 1.2-2(c)(1), Income Tax Regs., has the force and               
          effect of law unless it is unreasonable under the statute.  See,            
          e.g., Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,              
          467 U.S. 837 (1984); Natl. Muffler Dealers Association, Inc. v.             
          United States, 440 U.S. 472 (1979).  Neither the principal                  
          opinion nor either of the concurring opinions makes a convincing            
          argument that the regulation is unreasonable under the statute.             
          Moreover, we do not have the benefit of the parties’ thoughts on            
          that or much of anything.  We granted the parties’ motion for               

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