- 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
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