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regulation without asking for the Commissioner’s position and
without deciding for ourselves whether the regulation is valid?
H. Policy Concerns
If we are to be influenced by sympathy for petitioner in
light of what we discern to be the policy behind section 32, we
should consider that, to the extent we have crafted a rule of
law, it may have unintended consequences for other taxpayers
deserving of our sympathy. It is stipulated: “At the time of
petitioner’s arrest, the father of petitioner’s two children,
Charles Rowe, moved into the Rowe family home with petitioner’s
two children.” I assume that, under the tie-breaking rule of
section 32(c)(1)(C)(ii)(I), awarding the credit to the parent
residing with the children for the longest period during the
year, petitioner, having been deemed by the principal opinion to
have resided with the children for the whole of 2002 (as opposed
to the father’s approximately 7 months), gets the credit.4 To
take another case, assume that a single parent living with her
mother and young children is, as was the dependent in Hein v.
Commissioner, 28 T.C. 826 (1957), institutionalized for illness
with no actual chance of return. Would the children remain the
qualifying children of the mother (to the exclusion of the
grandmother) under the tie-breaking rule of what is now section
4 The referenced tie-breaking rule is now at sec.
152(c)(4)(B)(i).
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