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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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