Rowe v. Comm'r

Goeke, J., concurring: I concur in the result reached by the adopted opinion. I write separately to emphasize the very limited nature of the holding reached today. That is, where a taxpayer is involuntarily removed from her principal place of abode and has not manifested any intent to change that abode, her absence shall be considered temporary for purposes of eligibility for the earned income credit. See Hein v. Commissioner, 28 T.C. 826, 835 (1957).

We do not adopt a general intent test that would be inconsistent with the reasonableness of return test of section 1.2-2(c)(l), Income Tax Regs. 1 In evaluating whether an absence was temporary for purposes of head of household status, this Court in Hein recognized that special circumstances exist whereby a taxpayer (or dependent) never intending to change homes has been involuntarily removed from the home and confined to a separate location. Despite a regulation 2 requiring an analysis of whether it was reasonable to assume the dependent would return home, we held that the possibility of the dependent’s absence becoming permanent, by the dependent’s passing, before the dependent is able to return to the home should not prevent eligibility for relief where there is no evidence she intended to change homes. While not finding the regulation invalid, we stated: “[W]e are unwilling to conclude that it was the intention of the Congress that, where a child or other dependent is sent to a hospital under circumstances that make it likely he will die, this, in itself, is sufficient to change the principal place of abode.” Id.

The dissent’s criticisms apply equally to the result reached by this Court in Hein. Yet in the many years since Hein was decided, the Commissioner first acquiesced in our holding, 1958- 2 C.B. 3 , 6, and later adopted our holding in Rev. Rul. 66-28, 1966- 1 C.B. 31 . See also Serv. Ctr. Advice 200002043 (Jan. 14, 2000) (citing Hein in indicating that “detention in a juvenile facility” pending trial is a temporary absence for purposes of the earned income credit). In turn, Congress has cited the Commissioner’s position in Rev. Rul. 66-28, supra, in several statements of the present law with respect to residency requirements. See H. Conf. Rept. 108-696, at 56 n.42 (2004); S. Rept. 108-257, at 81 n.120 (2004); H. Conf. Rept. 108-126, at 179 n.327 (2003). Thus, whatever the merits of the criticism of Hein may have been, the Commissioner and Congress now seemingly agree with its result.

I believe Hein applies to the very limited facts before the Court today. Where an accused is involuntarily detained in jail pending her criminal trial, the absence is temporary for purposes of determining eligibility for the earned income credit. I see petitioner’s absence as analogous to a departure caused by serious illness and not a circumstance in which it is appropriate to apply the reasonableness of return test. It is contrary to our criminal justice system to presume petitioner’s guilt before her conviction. The possibility that her absence would become permanent by virtue of her ultimate conviction should not lessen the temporary nature of her detention and absence in the months preceding her trial.

Cohen, Laro, and Thornton, JJ., agree with this concurring opinion.

The legislative history to the earned income credit (EIC) indicates Congress’s intent that we are to apply rules similar to those applied in determining head of household status when determining whether the residency requirements of the EIC have been met. H. Conf. Rept. 101-694, at 1037 (1990), 1991- 2 C.B. 560 , 564.

The regulation at issue was the predecessor to sec. 1.2-2(e)(l) at sec. 39.12-4(c) of Regulations 118 under the Internal Revenue Code of 1939.