dissenting:
I. Introduction
I do not agree with the analysis set forth in the principal (first) opinion, authored by Judge Kroupa, or the concurring opinions authored by Judges Gale and Goeke. The issue that separates us is the standard for determining whether, on account of petitioner’s arrest and detention on June 5, 2002, she was temporarily absent from the household that, up until that date, she had physically occupied with her two children. To determine whether a taxpayer’s absence from a household is temporary, section 1.2-2(c)(l), Income Tax Regs., imposes a reasonable-expectation-of-return test. For different reasons, the authors of the principal and concurring opinions abandon that test in favor of a single factor inquiry as to whether there is a lack of evidence of intent to change the place of abode.
Section 1.2-2(c)(l), Income Tax Regs., has the force and effect of law unless it is unreasonable under the statute. See, e.g., Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984); Natl. Muffler Dealers Association, Inc. v. United States, 440 U.S. 472 (1979). Neither the principal opinion nor either of the concurring opinions makes a convincing argument that the regulation is unreasonable under the statute. Moreover, we do not have the benefit of the parties’ thoughts on that or much of anything. We granted the parties’ motion for leave to submit the case without a trial on the basis of the pleadings, pretrial memoranda, and the stipulation of facts. We have no briefs. The pretrial memoranda are uninformative of the issues dividing the Court. The only relevant portion of respondent’s memorandum is as follows:
Respondent’s position is that sharing of the same principal place of abode requires that a “qualifying child” live with the taxpayer for more than one-half of the taxable year. The test is a “simple residence test” that based eligibility on whether the taxpayer lived with her child for more than six months of the taxable year. Sherbo v. Commissioner, 255 F.3d 650, 654-655 (8th Cir. 2001).
Petitioner, who is pro se, fails to address the issues at all.
Before proceeding any further, I would ask the parties for briefs. The Court not having done so, I set forth my disagreements with the principal and concurring opinions.
II. Discussion
A. The Same Principal Place of Abode
The principal question before us is whether petitioner is eligible for the earned income credit allowed by section 32. The answer depends on whether petitioner and her two children had the same “principal place of abode” for at least 6 months of 2002. Sec. 32(c)(3)(A)(ii). Petitioner was arrested on June 5, 2002, and held in the Lane County, Oregon, jail until April 26, 2003, when she was convicted of murder and remanded to State custody to serve a life sentence.
To determine whether petitioner and her children had the same principal place of abode for at least 6 months during 2002, we look to section 1.2-2(c)(l), Income Tax Regs. Pursuant to that section, individuals have the same abode during periods when they occupy the same household. As pertinent to our present inquiry, we have interpreted the term “occupy” to mean “physically occupy”. See Prendergast v. Commissioner, 57 T.C. 475, 479 (1972), affd. 483 F.2d 970 (9th Cir. 1973); Biolchin v. Commissioner, T.C. Memo. 1969-197, affd. 433 F.2d 301 (7th Cir. 1970). Petitioner did not physically occupy the same household as her children after June 5, 2002. She and her children, therefore, did not physically occupy the same household for at least 6 months during 2002. Nevertheless, section 1.2-2(c)(l), Income Tax Regs., provides that, in determining whether an individual occupies a household for an entire year, her absence during some or all of that year will be excused if, among other things, it is both temporary and due to special circumstances. I agree with the principal opinion that we should apply a similar exception in determining whether petitioner and her children cooccupied the same household for more than 6 months during 2002 for purposes of the earned income credit.
B. Temporary Absence Due to Special Circumstances
Section 1.2-2(c), Income Tax Regs., provides that a non-permanent failure to occupy the common abode by reason of, among other things, illness, education, business, vacation, or military service shall be considered temporary absences due to special circumstances. I agree with the principal opinion that the list of special circumstances in section 1.2-2(c)(l), Income Tax Regs., is not exclusive. See Prendergast v. Commissioner, 57 T.C. at 480. I have no quarrel with the conclusions in the principal opinion that (1) “Jail confinement after an arrest * * * is a type of absence that is of a necessitous variety”, see principal op. p. 17, and (2) “jail confinement is similar to those examples listed in * * * [section 1.2-2(c)(l), Income Tax Regs.]”, see principal op. p. 18.
C. The Reasonable-Expectation-of-Return Test
At the end of 2002, there was insufficient information to say with certainty whether petitioner’s absence from the household on account of her arrest and incarceration was temporary (and therefore an excusable special circumstance) or permanent (and therefore inexcusable, whether a special circumstance or not). The reasonable-expectation-of-return test solves that dilemma. In pertinent part, section 1.2-2(c)(1), Income Tax Regs., provides: “Such absence [i.e., an absence due to a special circumstance] will not prevent the taxpayer from being considered as maintaining a household if * * * it is reasonable to assume that the taxpayer or such other person will return to the household”.
Thus, where, at the time a determination of abode must be made, it cannot be determined whether a person’s absence is permanent, the absence will be ignored if it is reasonable to assume that the person will return.1 For instance, assume that petitioner had been arrested on strong evidence of child abuse. At the time of her arrest, or at any time thereafter while the household still existed and she remained in jail, no one could say with certainty that her absence was permanent. Given the strong evidence of child abuse, however, it would be reasonable to assume that her absence would be permanent, no matter how the charges against her were resolved. In contrast, it might be unreasonable to make the same assumption if the only charge against her were that she had stolen money that she had expended on support for her children.2
D. Hein v. Commissioner
In Hein v. Commissioner, 28 T.C. 826 (1957), a Court-reviewed Opinion, we held that a lack of a showing of the intent permanently to abide elsewhere is dispositive of the issue whether an absence is to be considered temporary or permanent. We were interpreting language virtually identical to that in section 1.2-2(c)(l), Income Tax Regs. The taxpayer in question had claimed head of household status predicated on his maintaining a common household with his invalid sister. The sister was his dependent, and, although confinement was not absolutely necessary (she could have been maintained elsewhere with 24-hour nursing care), she had been confined for many years to a sanatorium on account of mental illness and had little, if any, chance of recovering. If she did recover, however, the taxpayer intended that she would again live in his home. The Commissioner’s principal argument was that, because of the seriousness of the sister’s illness, it was unreasonable to assume that she would return to the taxpayer’s household. We answered: “[T]he true test is not whether the return may be prevented by an act of God, but rather whether there are indications that a new permanent habitation has been chosen.” Hein v. Commissioner, supra at 835.
E. The Commissioner’s Pronouncements
In 1958, the Commissioner announced his acquiescence in Hein. 1958-2 C.B. 3, 6. The boilerplate accompanying the announcement states, among other things, that the Commissioner’s acquiescence in an adverse decision can be relied on only with respect to the application of the law to the facts in the particular case, and that the acquiescence means acceptance of the conclusion reached and does not necessarily mean acceptance and approval of any or all of the reasons assigned by the Court for its conclusions. Id. at 3.
In 1966, the Commissioner issued Rev. Rul. 66-28, 1966-1 C.B. 31, which concerns whether an individual qualified as the taxpayer’s dependent under then section 152(a)(9). The ruling addresses the question of whether the individual, who was indefinitely confined to a nursing home because of an illness requiring constant medical care, was to be considered temporarily absent from her principal place of abode during such confinement. The pertinent regulation, then and now, contains a provision dealing with temporary absence due to special circumstances similar to the temporary absence provision in section 1.2-2(c)(l), Income Tax Regs. See section 1.152-l(b), Income Tax Regs. The provisions are not identical, however, in that section 1.152-l(b), Income Tax Regs., unlike section 1.2-2(c)(l), Income Tax Regs., does not include the reasonable-expectation-of-return test.
Relying on the similarity of the two provisions and this Court’s interpretation of the predecessor of section 1.2-2(c)(1), Income Tax Regs., in Hein v. Commissioner, supra, the Commissioner concluded that indefinite confinement to a nursing home because of illness will likewise be considered a temporary absence due to special circumstances for purposes of then section 152(a)(9) even though such absence is for an extended period of time. The Commissioner added: “There must, of course, be an absence of an intent on the part of the taxpayer and the dependent to change the dependent’s principal place of abode. The possibility or probability that death might intervene before the dependent returns to the taxpayer’s household is not sufficient to make such absence permanent.”
Finally, in Service Center Advice 200002043 (Jan. 14, 2000), the Commissioner states the following with respect to section 1.2 — 2(c)(1), Income Tax Regs.:
Detention in a juvenile facility pending trial can be a temporary absence notwithstanding the possibility that the child may be detained after the trial for an extended period of time in a juvenile facility. As indicated by the Hein case and Rev. Rul. 66 — 28, the length of the person’s absence from the household does not, by itself, determine whether the absence is temporary. What is determinative is whether there is any intent to change the principal place of abode. [Emphasis added.]
For whatever it adds, the advisory does make the assumption that the child is not being tried as an adult.
F. Validity of the Regulations
The three pronouncements could be read to indicate an erosion of the Commissioner’s reliance on the reasonable-expectation-of-return test. Nevertheless, none of them is explicit in abandoning that test, and I am not prepared to conclude that the Commissioner has, sub silentio, amended the Secretary’s regulations. Moreover, the principal opinion appears to uphold the regulations. It cites section 1.2-2(c)(l), 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. 18. 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 conclude that it was reasonable to assume petitioner would return to her home with her children.” Id. at 19. 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 pend-ency 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: “[Although petitioner has been arrested and was confined in jail through the end of 2002, it was reasonable to assume she would return to her home because she had not chosen a new home.” Id. at 19 (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 it should explain how it is consistent with Hein, which I read as disregarding a multiple-factor analysis in favor of establishing the lack of evidence of intent to change the place of abode as the sole deciding factor.
The Commissioner’s acquiescence in Hein, to say the least, muddies the waters.
G. Rauenhorst v. Commissioner
In Rauenhorst v. Commissioner, 119 T.C. 157 (2002), we refused “to allow * * * [irs] counsel to argue the legal principles of * * * opinions against the principles and public guidance articulated in the Commissioner’s currently outstanding revenue rulings.” Id. at 170-171. The concurring opinions would, explicitly, in the case of Judge Gale, and, implicitly, in the case of Judge Goeke, invoke Rauenhorst to foreclose respondent from disavowing his acquiescence in Hein v. Commissioner, supra, and his ruling, Rev. Rul. 66-28, supra.
First, I must point out the respondent has disavowed neither. This is a fully stipulated case, the parties did not file briefs, there was no argument, and respondent’s position in his trial memorandum disavowed nothing.
Second, because of the boilerplate accompanying his acquiescence, respondent’s acquiescence in Hein is ambiguous as to what, exactly, he is acquiescing, other than the conclusion reached: The Commissioner’s acquiescence “does not necessarily mean acceptance and approval of any or all of the reasons assigned by the Court for its conclusions.” 1958-2 C.B. at .3.
Third, Rev. Rul. 66-28, supra, is distinguishable in that it is interpreting a regulation, section 1.152-1(b), Income Tax Regs., that does not contain the reasonable-expectation-of-return test, contained in section 1.2-2(c)(l), Income Tax Regs. See supra note 3. Perhaps Rev. Rul. 66-28, supra, is best read as acknowledging that nursing home stays are “temporary absences due to special circumstances” if done with the intent or hope of one day returning, rather than abrogating a different regulation’s requirement that such a hope to return be reasonable. The ruling is also distinguishable in that a nursing home stay, although it may be necessitous, is not compelling in the same way that a stay in jail is compelling.
Fourth, even if not distinguishable, revenue rulings do not have the force of regulations. E.g., Estate of Kincaid v. Commissioner, 85 T.C. 25 (1985). Indeed, the Supreme Court has held: “[T]he Commissioner’s acquiescence in an erroneous decision, published as a ruling, cannot in and of itself bar the United States from collecting a tax otherwise lawfully due.” Dixon v. United States, 381 U.S. 68, 73 (1965).
Finally, and most importantly, are we really prepared to interpret a ruling that, it seems by stealth, overrules a 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)(l)(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 152(c)(4)(A)(i), entitling the mother (and not the grandmother) to head of household status, the earned income credit, and dependency exemptions on account of the children? See sections 2(b)(l)(A)(i), 32(c)(l)(A)(i), and 152(a)(1), respectively. What policy would drive that result?
III. Conclusion
This case presents too many questions for disposition without briefing by the parties. Therefore, I respectfully dissent.
Colvin, Marvel, Haines, Wherry, and Holmes, JJ., agree with this dissenting opinion.And, in circumstances not here pertinent, the taxpayer continues to maintain the household or a substantially equivalent household in anticipation of her or her cooccupant’s return. Sec. 1.2 — 2(c)(1), Income Tax Regs.
If it is reasonable to assume that a taxpayer absent from her household on account of a special condition will return to the household, then her death prior to her return (making her absence permanent) would not seem to be a disabling factor because of the language of sec. 1.2-2(c)(1), Income Tax Regs., dealing with death during the taxable year.
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. 19.
The referenced tie-breaking rule is now at sec. 152(c)(4)(B)(i).