(a) Rules of evidence. The following rules of evidence shall govern in determining whether or not an alien within the United States has acquired residence therein for purposes of the income tax.
(b) Nonresidence presumed. An alien by reason of his alienage, is presumed to be a nonresident alien.
(c) Presumption rebutted—(1) Departing alien. In the case of an alien who presents himself for determination of tax liability before departure from the United States, the presumption as to the alien's nonresidence may be overcome by proof—
(i) That the alien, at least six months before the date he so presents himself, has filed a declaration of his intention to become a citizen of the United States under the naturalization laws; or
(ii) That the alien, at least six months before the date he so presents himself, has filed Form 1078 or its equivalent; or
(iii) Of acts and statements of the alien showing a definite intention to acquire residence in the United States or showing that his stay in the United States has been of such an extended nature as to constitute him a resident.
(2) Other aliens. In the case of other aliens, the presumption as to the alien's nonresidence may be overcome by proof—
(i) That the alien has filed a declaration of his intention to become a citizen of the United States under the naturalization laws; or
(ii) That the alien has filed Form 1078 or its equivalent; or
(iii) Of acts and statements of the alien showing a definite intention to acquire residence in the United States or showing that his stay in the United States has been of such an extended nature as to constitute him a resident.
(d) Certificate. If, in the application of paragraph (c)(1)(iii) or (2)(iii) of this section, the internal revenue officer or employee who examines the alien is in doubt as to the facts, such officer or employee may, to assist him in determining the facts, require a certificate or certificates setting forth the facts relied upon by the alien seeking to overcome the presumption. Each such certificate, which shall contain, or be verified by, a written declaration that it is made under the penalties of perjury, shall be executed by some credible person or persons, other than the alien and members of his family, who have known the alien at least six months before the date of execution of the certificate or certificates.
Notes of Decisions
Brittingham v. Comm'r, 66 T.C. 373 (Tax Ct. 1976).
· cites it 4× “However, the evidence presented by the Commissioner clearly rebuts the presumption of *176 nonresidency.”
Maclean v. Comm'r, 73 T.C. 1045 (Tax Ct. 1980).
· cites it 6× “871-2(b) , section 1.871-4, Income Tax Regs.”
Adams v. Comm'r, 46 T.C. 352 (Tax Ct. 1966).
· cites it 4× “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…”
Marsh v. Comm'r, 68 T.C. 68 (Tax Ct. 1977).
· cites it 4× “OPINION The parties are in agreement that the sole issue is whether Kazuko was a resident or nonresident alien of the United States for Federal income tax purposes under sections 871-874. 4 It is undisputed that petitioner established her residence, as a resident alien, in the…”
Budhwani v. Comm'r, 70 T.C. 287 (Tax Ct. 1978).
· cites it 6× “871-4 Proof of residence of aliens: * * * * (b) Nonresidence presumed . An alien, by reason of his alienage, is presumed to be a nonresident alien.”
Lemery v. Comm'r, 54 T.C. 480 (Tax Ct. 1970).
· cites it 4× “The presumption, however, may be overcome by proof of acts and statements of the alien demonstrating an intention to acquire residence in the United States or by proof that his stay in the United States has been of such an extended nature as to constitute him a resident.”
Park v. Comm'r, 79 T.C. 252 (Tax Ct. 1982).
· cites it 10× “3 Petitioner has never filed a declaration of intention to become a citizen of the United States and has never filed a Form 1078 ("Certificate of Alien Claiming Residence in the United States"), or its equivalent, as referred to in section 1.871-4(c)(2), Income Tax Regs.”
Dillin v. Comm'r, 56 T.C. 228 (Tax Ct. 1971).
· cites it 2× “↩ , is applicable here. The regulation provides that, "An alien, by reason of his alienage is presumed to be a nonresident alien.”
Escobar v. Comm'r, 68 T.C. 304 (Tax Ct. 1977).
· cites it 4× “871-4 . Proof of residence of aliens. (a) Rules of evidence .”
Bergersen v. Comm'r, 70 T.C.M. 568 (Tax Ct. 1995).
· cites it 2× “Thus, this Court will analyze the facts and circumstances in each case and will apply the principles of sections 1.”
Whyte v. Comm'r, 52 T.C.M. 677 (Tax Ct. 1986).
· cites it 6× “" 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…”
Zand v. Comm'r, 1996 T.C. Memo. 19 (Tax Ct. 1996).
· cites it 2× “, further contains a presumption that aliens are nonresidents unless they have filed declarations of their intention to become citizens, have filed a Form 1078 or its equivalent, or have taken certain actions to acquire residency.”
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