Cynthia L. Rowe - Page 27

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          leave to submit the case without a trial on the basis of the                
          pleadings, pretrial memoranda, and the stipulation of facts.  We            
          have no briefs.  The pretrial memoranda are uninformative of the            
          issues dividing the Court.  The only relevant portion of                    
          respondent’s memorandum is as follows:                                      
                    Respondent’s position is that sharing of the same                 
               principal place of abode requires that a “qualifying                   
               child” live with the taxpayer for more than one-half of                
               the taxable year.  The test is a “simple residence                     
               test” that based eligibility on whether the taxpayer                   
               lived with her child for more than six months of the                   
               taxable year.  Sherbo v. Commissioner, 255 F.3d 650,                   
               654-655 (8th Cir. 2001).                                               
          Petitioner, who is pro se, fails to address the issues at all.              
               Before proceeding any further, I would ask the parties for             
          briefs.  The Court not having done so, I set forth my                       
          disagreements with the principal and concurring opinions.                   
          II.  Discussion                                                             
               A.  The Same Principal Place of Abode                                  
               The principal question before us is whether petitioner is              
          eligible for the earned income credit allowed by section 32.  The           
          answer depends on whether petitioner and her two children had the           
          same “principal place of abode” for at least 6 months of 2002.              
          Sec. 32(c)(3)(A)(ii).  Petitioner was arrested on June 5, 2002,             
          and held in the Lane County, Oregon, jail until April 26, 2003,             
          when she was convicted of murder and remanded to State custody to           
          serve a life sentence.                                                      

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