Cynthia L. Rowe, Petitioner v. Commissioner of Internal Revenue, Respondent, 128 T.C. 13

OPINION Kroupa, Judge: Respondent determined a $1,070 deficiency in petitioner’s Federal income tax for 2002. The issue to be decided is whether petitioner is eligible to claim an earned income credit (EIC) in 2002. We hold that she is. Background This case was fully stipulated under Rule 122. The stipulation of facts and the attached exhibits are incorporated by this reference. Petitioner was incarcerated in the Coffee Creek Correctional Facility in Wilsonville, Oregon, when she filed the petition.

Petitioner and her two children lived together for the first part of 2002, first at a home on Marcum Lane in Eugene, Oregon, and then at the home of petitioner’s mother-in-law. Petitioner was arrested on June 5, 2002, and was held in jail for the remainder of the year. The father of petitioner’s two children moved into his mother’s home to care for the children after petitioner was arrested. Petitioner supported herself and her children in 2002 with wages, unemployment benefits, food stamps, and welfare medical assistance until she was arrested.

Petitioner continued to support her children even after her arrest until July 2, 2002, when the Children’s Services Division of the State of Oregon began providing petitioner’s children financial and medical assistance in their own names. Petitioner was ultimately convicted of murder in 2003 and is presently serving a life sentence at the Coffee Creek Correctional Facility. Petitioner’s conviction was pending on appeal when this case was submitted. Petitioner timely filed a Federal income tax return for 2002 claiming head of household status. She claimed her children as dependents and also claimed an EIC.

She stated on

Schedule EIC, Earned Income Credit, that she lived with her children for more than half of 2002 but less than 7 months. Petitioner received $1,070 for the EIC. Respondent issued petitioner a deficiency notice concluding that petitioner was not eligible for the EIC because she did not share the same principal place of abode with her children for more than half of 2002. Petitioner timely filed a petition and, at the Court’s direction, an amended petition complying with the Court’s Rules. Discussion We are asked to decide whether petitioner is eligible for the EIC. We begin by explaining the EIC in general terms.

An eligible individual is entitled to an EIC against the individual’s income tax liability, subject to certain requirements. Sec. 32(a)(1). Different percentages and amounts are used to calculate the credit depending on whether the eligible individual has no qualifying children, one qualifying child, or two or more qualifying children. Sec. 32(b). Petitioner claims the EIC with respect to two or more qualifying children. Certain requirements must be met to be eligible to claim an EIC with respect to qualifying children.

Respondent concedes that petitioner has satisfied the age, identification, and relationship requirements with respect to her two children. See sec. 32(c)(3). The issue in dispute concerns the residency requirement. The residency requirement mandates that the taxpayer and the children must share the same principal place of abode for more than half of the taxable year for which the EIC is claimed. Sec. 32(c)(3). Respondent argues that petitioner and her children did not satisfy the residency requirement because petitioner was held in jail for the rest of the year after her arrest on June 5.

Petitioner, on the other hand, argues that she and her children satisfied the residency requirement. Petitioner asserts that she resided with her children in 2002, first at the Marcum Lane home and then at her mother-in-law’s home. She argues that her mother-in-law’s home was the residence for her and her children from the day they moved there through the rest of the year. Petitioner essentially asserts that, although she was arrested on June 5 and held in jail for the remainder of the year, her absence was tern-, porary. We agree with petitioner. A.

The “Same Principal Place of Abode” Test We now examine the residency requirement that a taxpayer and his or her children must share the “same principal place of abode” for more than half the year for which the EIC is claimed. We also consider what types of absences from the home are permitted while still allowing the home to qualify as the principal place of abode. Sec. 32(c)(3). The phrase “same principal place of abode” is not defined in

section 32 or the regulations under that section. The legislative history of

section 32, however, provides some guidance on the meaning of this phrase, and, specifically, how Congress intended absences from the home to be treated. Congress intended that rules similar to those for determining head of household filing status under

section 1(

b) should apply in determining whether the residency requirement of the EIC is met. H. Conf. Rept. 101-964, at 1037 (1990), 1991-2 C.B. 560, 564. Congress also stated that certain temporary absences, such as those for education or illness, should not be counted against taxpayers in determining whether taxpayers lived with a qualifying child for more than half the taxable year for which the EIC is claimed. Id. B.

Head of Household Filing Status Provisions We accordingly look to the head of household filing status provisions for guidance on how absences from the home are to be treated in determining the principal place of abode. See id. The head of household provisions contain certain requirements for a taxpayer to file a tax return as a head of household. Sec. 2(b). One requirement is that the taxpayer must maintain as his or her home a household that constitutes the principal place of abode for a qualifying child or certain other persons for more than half the year. Sec. 2(b)(1)(A). Regulations under this

section further elaborate on the treatment of absences from the home. Sec. 1.2-2(c)(l), Income Tax Regs. While the taxpayer must live in the household and not simply maintain it, temporary absences, generally out of necessity, are permitted under certain circumstances. Id.; see Prendergast v. Commissioner, 57 T.C. 475, 480 (1972), affd. 483 F.2d 970 (9th Cir. 1973). Non-permanent failures to occupy the home for reasons such as illness, education, business, vacation, military service, or a custody agreement do not cause a taxpayer to lose head of household filing status. Sec. 1.2-2(c)(l), Income Tax Regs.

A taxpayer may still have the same principal place of abode despite a temporary absence if it is reasonable to assume that the taxpayer will return to the household and the taxpayer continues to maintain the household during the temporary absence. Id. C. Preconviction Incarceration as a Temporary Absence We next consider how an absence from the home due to jail confinement after an arrest (but before a conviction or other case disposition) should be treated, taking into account the guidance provided by the head of household regulations.

Absence due to jail confinement after an arrest is not one of the permitted or listed absences under the head of household regulations. Failure of this type of absence to be included in the list, however, is not fatal to petitioner’s case. Congress intended for similar, not identical, rules to apply to determine whether the residency requirement is met for EIC purposes. See H. Conf. Rept. 101-964, supra at 1037, 1991-2 C.B. at 564. Also, we have previously indicated that the list of reasons for a nonpermanent failure to occupy the home in the regulations is not an exclusive list. Prendergast v.

Commissioner, supra at 480. Rather, we found that the list is only a guide for distinguishing temporary absences for necessitous reasons from more permanent absences for non-necessitous reasons. Id. Jail confinement after an arrest but before conviction is a type of absence that is of a necessitous variety and also non-permanent. An individual confined in jail after being arrested has a unique, temporary status.

The criminal process will continue through several stages, which may include charging, possible plea bargaining, trial, conviction, sentencing, and appeal, each of which will directly affect the individual’s status. These subsequent stages of the criminal process after arrest will determine whether the arrested person is ultimately incarcerated or released. We find that an individual confined in jail after an arrest but before conviction is necessarily, but nonpermanently, absent from his or her home.

Such an individual generally intends to return home, just as an individual in military service or afflicted by illness intends to return home once he or she is able. Thus, the necessary, nonpermanent absence of jail confinement is similar to those examples listed in the head of household regulations. See id.; sec. 1.2 — 2(c)(1), Income Tax Regs. D.

Reasonableness of Assumption That Petitioner Would Return Temporary absences, like those outlined in the regulations as well as jail confinement after an arrest, are permitted if it is reasonable to assume the taxpayer will return to his or her home after the temporary absence. See sec. 1.2 — 2(c)(1), Income Tax Regs. We therefore now 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. We have previously established factors to rely on in making this determination.

Hein v. Commissioner, 28 T.C. 826 (1957). In Hein, we were asked to consider whether a taxpayer and his 72-year-old sister, Emilie, had the same principal place of abode. Id. at 830. The taxpayer and Emilie had lived together for approximately 30 years, but Emilie had been confined in a mental health facility for the 6 years before the year at issue and therefore was absent from the taxpayer’s home during the year at issue. Id. at 828.

In finding that the taxpayer and Emilie had the same principal place of abode, we focused on the taxpayer’s and Emilie’s intent that Emilie would return to the taxpayer’s home if she were released. Id. at 834-835. Moreover, even though it was unlikely that Emilie would ever recover her health and leave the facility, we emphasized that there were no indications that Emilie had chosen a new permanent habitation. Id. We 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.

The criminal case against petitioner was still pending at the end of 2002 and she had not been convicted. As in Hein, there are no indications in the record that petitioner intended to choose a new home. See id. In fact, petitioner refers to her mother-in-law’s home as “my home” in documents she filed with the Court. We decline 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.

Such an analysis would require us to assess the strengths and weaknesses of the criminal case against petitioner. In addition, we would have to consider other factors such as petitioner’s financial status and assets to estimate whether she could have made bail, the likelihood of a plea bargain, or perhaps an estimate the length of a sentence or the likelihood of success on appeal if we found petitioner likely would have been convicted. These inquiries are best left to the criminal process to address. We shall not assess the merits of a criminal case to determine whether a taxpayer is eligible for the Eic.

We conclude that, although petitioner had 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. Accordingly, we find that her temporary absence due to jail confinement after her arrest but before conviction does not disqualify her from eligibility for the Eic for 2002. We note that our holding will apply only to an extraordinarily narrow category of taxpayers because Congress has limited the circumstances in which the EIC is available to inmates at correctional institutions.

Income those inmates earn is not considered income for EIC purposes. Sec. 32(c)(2)(B)(iv). Accordingly, any income that petitioner earns while she serves her sentence as an inmate at a correctional facility is not taken into account for EIC purposes. Id. Our holding, therefore, applies primarily to taxpayers who have earned income outside a correctional facility for part of a year and are then arrested and held in jail without conviction for the remainder of the year. Congress has chosen to restrict the extent to which inmates at correctional institutions may obtain the EIC. Id.

Absent direction from Congress, we do not find it appropriate under these circumstances to further restrict the application of the EIC also to exclude income a taxpayer earns before incarceration. E. Conclusion We hold that petitioner has satisfied the residency requirement to claim the EIC for 2002. To reflect the foregoing, Decision will be entered for petitioner. Reviewed by the Court. Cohen, Swift, Wells, and Vasquez, JJ., agree with this majority opinion. Laro, Foley, Gale, Thornton, and Goeke, JJ., concurring in result only. Chiechi, J., did not participate in the consideration of this case. All

section references are to the Internal Revenue Code in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure, unless otherwise indicated. Respondent also concluded that petitioner was not eligible to file as head of household or to claim dependency exemptions for her children. Respondent’s disallowance of the head of household filing status had no effect on petitioner’s tax liability for 2002 because her standard deductions and exemptions exceeded her adjusted gross income.

Respondent has since conceded that petitioner was eligible to claim the dependency exemptions for her children. We also note that the Commissioner has indicated that “detention in a juvenile facility” is a temporary absence that counts as time lived at home for purposes of the EIC. See Serv. Ctr. Advice 200002043 (Jan. 14, 2000); 2002 Instructions to Form 1040, line 64, Earned Income Credit; cf. sec. 1.6015-3(b)(3), Income Tax Regs, (spouse’s temporary absence from household due to incarceration does not prevent spouses from being considered members of the same household).

We note that the regulations concerning head of household filing status also require that taxpayers maintain the household during their temporary absence in anticipation of returning. We are not required to consider that requirement in the EIC context. Maintaining a household is not a requirement of sec. 32. The EIC rules simply require that the taxpayer and the person to be treated as a qualifying child have the same principal place of abode. Secs. 32(c)(3), 152(c).