Cynthia L. Rowe - Page 34

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          Secretary’s regulations.  Moreover, the principal opinion appears           
          to uphold the regulations.  It cites section 1.2-2(c)(1), Income            
          Tax Regs., and claims:  “We * * * consider whether it is                    
          reasonable to assume that petitioner, who was temporarily absent            
          from her home in 2002 due to her arrest and jail confinement but            
          before her conviction, would return to her home.”  Principal op.            
          p. 9.  It characterizes Hein v. Commissioner, 28 T.C. 826 (1957),           
          as having “previously established factors to rely on in making              
          this determination.”  Id.  It claims to “apply the factors we set           
          forth in Hein to the circumstances here and concludes that it was           
          reasonable to assume petitioner would return to her home with her           
          children.”  Id. at 10.  It declines, however, “to assess                    
          objectively the strength of the criminal charges against                    
          petitioner or require petitioner to show the weakness of the                
          charges against her to determine whether it was reasonable to               
          assume she would return to her home.”  Id.  Besides the pendency            
          of the criminal case against petitioner at the end of 2002, and             
          petitioner’s reference to her mother-in-law’s home as her “home”,           
          the only factor the principal opinion mentions is:  “As in Hein,            
          there are no indications in the record that petitioner intended             
          to choose a new home.”  Id.  It concludes:  “[A]lthough                     
          petitioner has been arrested and was confined in jail through the           
          end of 2002, it was reasonable to assume she would return to her            

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