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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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