(a) General. The term nonresident alien individual means an individual whose residence is not within the United States, and who is not a citizen of the United States. The term includes a nonresident alien fiduciary. For such purpose the term fiduciary shall have the meaning assigned to it by section 7701(a)(6) and the regulations in part 301 of this chapter (Regulations on Procedure and Administration). For presumption as to an alien's nonresidence, see paragraph (b) of § 1.871-4.
(b) Residence defined. An alien actually present in the United States who is not a mere transient or sojourner is a resident of the United States for purposes of the income tax. Whether he is a transient is determined by his intentions with regard to the length and nature of his stay. A mere floating intention, indefinite as to time, to return to another country is not sufficient to constitute him a transient. If he lives in the United States and has no definite intention as to his stay, he is a resident. One who comes to the United States for a definite purpose which in its nature may be promptly accomplished is a transient; but, if his purpose is of such a nature that an extended stay may be necessary for its accomplishment, and to that end the alien makes his home temporarily in the United States, he becomes a resident, though it may be his intention at all times to return to his domicile abroad when the purpose for which he came has been consummated or abandoned. An alien whose stay in the United States is limited to a definite period by the immigration laws is not a resident of the United States within the meaning of this section, in the absence of exceptional circumstances.
(c) Application and effective dates. Unless the context indicates otherwise, §§ 1.871-2 through 1.871-5 apply to determine the residence of aliens for taxable years beginning before January 1, 1985. To determine the residence of aliens for taxable years beginning after December 31, 1984, see section 7701(b) and §§ 301.7701(b)-1 through 301.7701(b)-9 of this chapter. However, for purposes of determining whether an individual is a qualified individual under section 911(d)(1)(A), the rules of §§ 1.871-2 and 1.871-5 shall continue to apply for taxable years beginning after December 31, 1984. For purposes of determining whether an individual is a resident of the United States for estate and gift tax purposes, see § 20.0-1(b)(1) and (2) and § 25.2501-1(b) of this chapter, respectively.
[T.D. 6500, 25 FR 11910, Nov. 26, 1960; 25 FR 14021, Dec. 31, 1960, as amended by T.D. 8411, 57 FR 15241, Apr. 27, 1992]
Notes of Decisions
Cited in
54
cases, 1961–2013 · leading case:
Preece v. Comm'r, 95 T.C. 594 (Tax Ct. 1990).
Preece v. Comm'r, 95 T.C. 594 (Tax Ct. 1990).
· cites it 20× “871-2, Income Tax Regs. Held , the issue of whether the substantial presence test or a facts and circumstances test provides the standard for determining whether Ps were residents of CNMI in 1985 is appropriate for summary judgment.”
Bergersen v. Comm'r, 70 T.C.M. 568 (Tax Ct. 1995).
· cites it 8× “933-1(a), Income Tax Regs. Thus, this Court will analyze the facts and circumstances in each case and will apply the principles of sections 1.”
Lemery v. Comm'r, 54 T.C. 480 (Tax Ct. 1970).
· cites it 8× “*208 As noted earlier a nonresident alien is an individual whose residence is not within the United States and who is not a citizen of the United States.”
Sochurek v. Comm'r, 36 T.C. 131 (Tax Ct. 1961).
· cites it 6× “Section 871 relates to the income tax of nonresident aliens in the United States and section 1.”
Escobar v. Comm'r, 68 T.C. 304 (Tax Ct. 1977).
· cites it 10× “, which provides as follows: (b) Residence defined . An alien actually present in the United States who is not a mere transient or sojourner is a resident of the United States for purposes of the income tax.”
Dillin v. Comm'r, 56 T.C. 228 (Tax Ct. 1971).
· cites it 4× “The respondent's regulation section 1.871-2(b) provides that a "mere transient or sojourner" in the United States is not a resident.”
Dawson v. Comm'r, 59 T.C. 264 (Tax Ct. 1972).
· cites it 4× “871-2(b), 3 *34 Income Tax Regs. The intention of *33 the taxpayer is of prime importance.”
Maclean v. Comm'r, 73 T.C. 1045 (Tax Ct. 1980).
· cites it 4× “Whether he is a transient is determined by his intentions with regard to the length and nature of his stay.”
Riley v. Comm'r, 74 T.C. 414 (Tax Ct. 1980).
· cites it 6× “, which provides that an alien "who comes to the United States for a definite purpose * * * of such a nature that an extended stay may be necessary for its accomplishment, *154 and to that end * * * makes his home temporarily in the United States * * * becomes a resident ,…”
Cobb v. Comm'r, 62 T.C.M. 408 (Tax Ct. 1991).
· cites it 4× “(emphasizing the importance of a person's intentions, status as a resident contrasted with transient or sojourner, and purpose of his or her visit).”
Park v. Comm'r, 79 T.C. 252 (Tax Ct. 1982).
· cites it 12× “11 *113 ) *287 provide that an alien actually present in the United States "who is not a mere transient *112 or sojourner" is a resident of the United States for income tax purposes.”
Benfer v. Comm'r, 45 T.C. 277 (Tax Ct. 1965).
· cites it 4× “The regulation that deals with determining the residence of alien individuals is section 1.871-2, *292 Income Tax Regs.”
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