- 28 -
To determine whether petitioner and her children had the
same principal place of abode for at least 6 months during 2002,
we look to section 1.2-2(c)(1), Income Tax Regs. Pursuant to
that section, individuals have the same abode during periods that
they occupy the same household. As pertinent to our present
inquiry, we have interpreted the term “occupy” to mean
“physically occupy”. See Prendergast v. Commissioner, 57 T.C.
475, 479 (1972), affd. 483 F.2d 970 (9th Cir. 1973); Biolchin v.
Commissioner, T.C. Memo. 1969-197, affd. 433 F.2d 301 (7th Cir.
1970). Petitioner did not physically occupy the same household
as her children after June 5, 2002. She and her children,
therefore, did not physically occupy the same household for at
least 6 months during 2002. Nevertheless, section 1.2-2(c)(1),
Income Tax Regs., provides that, in determining whether an
individual occupies a household for an entire year, her absence
during some or all of that year will be excused if, among other
things, it is both temporary and due to special circumstances. I
agree with the principal opinion that we should apply a similar
exception in determining whether petitioner and her children co-
occupied the same household for more than 6 months during 2002
for purposes of the earned income credit.
B. Temporary Absence Due to Special Circumstances
Section 1.2-2(c), Income Tax Regs., provides that a
nonpermanent failure to occupy the common abode by reason of,
Page: Previous 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 NextLast modified: May 25, 2011