Cynthia L. Rowe - Page 35

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          home because she had not chosen a new home.”  Id. at 11 (emphasis           
               The reasonable-expectation-of-return test presents a                   
          question of fact.  Petitioner bears the burden of proving by a              
          preponderance of the evidence that it is reasonable to assume               
          that she will return to the household.  See Rule 142(a).  The               
          evidence in this case shows that, on June 5, 2002, petitioner was           
          removed from her household by reason of her arrest and did not              
          return.  But for the finding in the principal opinion with                  
          respect to her intent, petitioner has failed to produce any                 
          evidence that it is reasonable to assume that she will return.3             
          The conclusion in the principal opinion that, as a matter of law,           
          petitioner’s showing of intent is sufficient both follows Hein v.           
          Commissioner, supra, and sidesteps the factual inquiry required             
          by the regulations.  My difficulty with the principal opinion is            
          that it does not reconcile Hein with the reasonable-expectation-            
          of-return test.  If the premise of the principal opinion is that            
          the reasonable-expectation-of-return test is invalid, the                   
          principal opinion should say so and explain why.  If the                    
          principal opinion does not consider the test to be invalid, then            

               3  For the sake of argument, I am willing to concede that              
          petitioner has proven that she intended to return home, although            
          in this fully stipulated case that fact is not stipulated and the           
          author of the principal opinion makes the finding that petitioner           
          had not chosen a new home based in part on the absence of                   
          “indications in the record that petitioner intended to choose a             
          new home.”  Principal op. p. 10.                                            

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