Cynthia L. Rowe - Page 29

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          among other things, illness, education, business, vacation, or              
          military service shall be considered temporary absences due to              
          special circumstances.  I agree with the principal opinion that             
          the list of special circumstances in section 1.2-2(c)(1), Income            
          Tax Regs., is not exclusive.  See Prendergast v. Commissioner, 57           
          T.C. at 480.  I have no quarrel with the conclusions in the                 
          principal opinion that (1) “Jail confinement after an arrest is a           
          type of absence that is of a necessitous variety”, see principal            
          op. p. 8, and (2) “jail confinement is similar to those examples            
          listed in * * * [section 1.2-2(c)(1), Income Tax Regs.]”, see               
          principal op. pp. 8-9.                                                      
               C.  The Reasonable-Expectation-of-Return Test                          
               At the end of 2002, there was insufficient information to              
          say with certainty whether petitioner’s absence from the                    
          household on account of her arrest and incarceration was                    
          temporary (and therefore an excusable special circumstance) or              
          permanent (and therefore inexcusable, whether a special                     
          circumstance or not).  The reasonable-expectation-of-return test            
          solves that dilemma.  In pertinent part, section 1.2-2(c)(1),               
          Income Tax Regs., provides:  “Such absence [i.e., an absence due            
          to a special circumstance] will not prevent the taxpayer from               
          being considered as maintaining a household if * * * it is                  
          reasonable to assume that the taxpayer or such other person will            
          return to the household”.                                                   

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