Rev. Rul. 66-28

Advice has been requested whether an individual who, because of illness requiring constant medical care, is indefinitely confined to a nursing home is considered to be temporarily absent from her principal place of abode during such confinement, for the purpose of determining whether she qualifies as the taxpayer's dependent under section 152(a)(9) of the Internal Revenue Code of 1954.

The individual concerned is an elderly woman, unrelated to the taxpayer, who had received her chief support from the taxpayer and had been a member of the taxpayer's household before becoming so ill that she required constant medical care and had to be placed in a nursing home. The woman was continuously confined to the nursing home for several years including the entire tax year under consideration and the nature of her illness was such that it appeared she might never return. The taxpayer paid all her expenses in the nursing home because she had no relatives or other source of support.

To qualify as a dependent under section 152(a)(9) of the Code, an individual must, for the taxable year of the taxpayer have as his or her principal place of abode the home of the taxpayer and be a member of the taxpayer's household.

According to section 1.152-1(b) of the Income Tax Regulations, subject to an exception which is not here pertinent, section 152(a)(9) of the Code applies to any individual who lives with the taxpayer and is a member of the taxpayer's household during the entire taxable year of the taxpayer. It is not necessary under section 152(a)(9) of the Code that the dependent be related to the taxpayer. It is necessary, however, that the taxpayer both maintain and occupy the household. The taxpayer and dependent will be considered as occupying the household for such entire taxable year notwithstanding temporary absences from the household due to special circumstances. Section 1.152-1(b) of the regulations further provides that a nonpermanent failure to occupy the common abode by reason of illness, education, business, vacation, military service, or a custody agreement under which the dependent is absent for less than 6 months in the taxable year of the taxpayer, shall be considered temporary absence due to special circumstances.

An identical provision with respect to temporary absence due to special circumstances is contained in section 1.1-2(c)(1) of the regulations under the 1954 Code, relating to rates of tax on heads of households. Section 39.12-4(c) of Regulations 118 under the Internal Revenue Code of 1939, which also contains this same temporary absence provision, has been interpreted by the court in the case of Walter J. Hein v. Commissioner , 28 T.C. 826 (1957) Acquiescence, C.B. 1958-2, 6, to mean that the dependent's stay in a nursing home was a temporary absence due to special circumstances even though it appeared that the elderly lady would be unlikely to return to the taxpayer's household.

In view of the decision in the Hein case, a period of time during which a dependent is confined to a nursing home because of illness will likewise be considered a temporary absence due to special circumstances for the purpose of section 152(a)(9) of the Code, even though such absence is for an extended period of time. 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.

Accordingly, an elderly woman, who is indefinitely confined to a nursing home because of illness requiring constant medical care, is, during such confinement, considered to be temporarily absent from her principal place of abode, for the purpose of determining whether she qualifies as a dependent under section 152(a)(9) of the Code.