Split Tax Court Allows Taxpayer Incarcerated on Murder Charge to Claim EITC

A splintered Tax Court yesterday held that a taxpayer could claim an earned income tax credit (EITC) even though she was incarcerated (after shooting her brother-in-law in the head) and thus did not live with her children for more than half of the tax year in question as required by § 32(c)(3) of the Code. Rowe v. Commissioner, 128 T.C. No. 3 (2/22/07).

The issue that split the Tax Court was whether the taxpayer's incarceration should be treated as a "temporary" absence from the home and thus allow her to satisfy the six-month rule.  (In the following year, the taxpayer she was convicted of first degree murder and sentenced to life imprisonment).

• Five judges joined the majority opinion -- Kroupa, Cohen, Swift, Wells & Vasquez)
• Five judges concurred in the result only -- Laro, Foley, Gale, Thornton & Goeke, with two separate concurring opinions:
  • Gale & Thornton
  • Goeke, Cohen, Laro & Thornton
• Six judges dissented -- Halpern, Colvin, Marvel, Haines, Wherry & Holmes

Update:  Joe Kristan, Mommy's Going Away, But the Tax Court Says It's Temporary for Now