- 35 -
home because she had not chosen a new home.” Id. at 11 (emphasis
added).
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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