Cynthia L. Rowe - Page 33

                                       - 33 -                                         
          absence due to special circumstances for purposes of then section           
          152(a)(9) even though such absence is for an extended period of             
          time.  The Commissioner added:  “There must, of course, be an               
          absence of an intent on the part of the taxpayer and the                    
          dependent to change the dependent's principal place of abode.               
          The possibility or probability that death might intervene before            
          the dependent returns to the taxpayer's household is not                    
          sufficient to make such absence permanent.”                                 
               Finally, in Service Center Advice 200002043 (Jan. 14, 2000),           
          the Commissioner states the following with respect to section               
          1.2-2(c)(1), Income Tax Regs.:                                              
                    Detention in a juvenile facility pending trial can                
               be a temporary absence notwithstanding the possibility                 
               that the child may be detained after the trial for an                  
               extended period of time in a juvenile facility.  As                    
               indicated by the Hein case and Rev. Rul. 66-28, the                    
               length of the person's absence from the household does                 
               not, by itself, determine whether the absence is                       
               temporary.  What is determinative is whether there is                  
               any intent to change the principal place of abode.                     
               [Emphasis added.]                                                      
          For whatever it adds, the advisory does make the assumption that            
          the child is not being tried as an adult.                                   
               F.  Validity of the Regulations                                        
               The three pronouncements could be read to indicate an                  
          erosion of the Commissioner’s reliance on the reasonable-                   
          expectation-of-return test.  Nevertheless, none of them is                  
          explicit in abandoning that test, and I am not prepared to                  
          conclude that the Commissioner has, sub silentio, amended the               

Page:  Previous  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  Next

Last modified: May 25, 2011