CITES BY TOPIC:  nonresident alien

26 U.S.C. §7701(b)(1)(B) Nonresident alien

An individual is a nonresident alien if such individual is  neither a citizen of the United States nor a resident of the  United States (within the meaning of subparagraph (A)).

PDF Nonresident Alien Position, Form #05.020 (OFFSITE LINK)

PDF IRS Form 1040NR:  Note it identifies "U.S. nationals" as "nonresident aliens"!

About IRS Form W-8BEN, Form #04.202 (OFFSITE LINK.  Members Only form)-how to fill out this VERY important form

Definition from IRS Publication 519:  Tax Guide for Aliens, Year 2000:

If you are an alien (not a U.S. citizen), you are considered a nonresident alien unless you meet one of the two tests described next under Resident Aliens.

  • Green Card Test
  • Substantial Presence Test

Definition on IRS form W-8BEN:

Any individual who is not a citizen or resident of the United States is a nonresident alien individual.  An alien individual meeting either the "green card test" or the "substantial presence test" for the calendar year is a resident alien.  Any person not meeting either test is a nonresident alien individual.

Additionally, an alien individual who is a resident of a foreign country under the residence article of an income tax treaty, or an alien individual who is a resident of Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, the U.S. Virgin Islands, or American Samoa is a nonresident alien individual.  See Pub 519, U.S. Tax Guide for Aliens, for more information on resident and nonresident alien status.

IRS Publication 519:  Tax Guide for Aliens

Rasul v. Bush, 542 U.S. 466, 124 S.Ct. 2686 (2004)

In addition to invoking the District Court's jurisdiction under § 2241, the Al Odah petitioners' complaint invoked the court's jurisdiction under 28 U.S.C. § 1331, the federal-question statute, as well as § 1350, the Alien Tort Statute. The Court of Appeals, again relying on Eisentrager, held that the District Court correctly dismissed the claims founded on § 1331 and § 1350 for lack of jurisdiction, even to the extent that these claims “deal only with conditions of confinement and do not sound in habeas,” because petitioners lack the “privilege of litigation” in U.S. courts. 321 F.3d, at 1144 (internal quotation marks omitted). Specifically, the court held that because petitioners' § 1331 and § 1350 claims “necessarily rest on alleged violations of the same category of laws listed in the habeas corpus statute,” they, like claims founded on the habeas statute itself, must be “beyond the jurisdiction of the federal courts.” Id., at 1144-1145.

As explained above, Eisentrager itself erects no bar to the exercise of federal-court jurisdiction over the petitioners' habeas corpus claims. It therefore certainly does not bar the exercise of federal-court jurisdiction over claims that merely implicate the “same category of laws listed in the habeas corpus statute.” But in any event, nothing in Eisentrager or in any of our other cases categorically excludes aliens detained in military custody outside the United States from the “ ‘privilege of litigation’ ” in U.S. courts. 321 F.3d, at 1139. The courts of the United States have traditionally been open to nonresident aliens. Cf. Disconto Gesellschaft v. Umbreit, 208 U.S. 570, 578, 28 S.Ct. 337, 52 L.Ed. 625 (1908) (“Alien citizens, by the policy and practice of the courts of this country, are ordinarily permitted to resort to the courts for the redress of wrongs and the *485 protection of their rights”). And **2699 indeed, 28 U.S.C. § 1350 explicitly confers the privilege of suing for an actionable “tort ... committed in violation of the law of nations or a treaty of the United States” on aliens alone. The fact that petitioners in these cases are being held in military custody is immaterial to the question of the District Court's jurisdiction over their nonhabeas statutory claims.

[Rasul v. Bush, 542 U.S. 466, 124 S.Ct. 2686 (2004)]

8 CFR  316.5(c)(2): Residence in the United States

[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR316.5]
[Page 716-718]
 
TITLE 8--ALIENS AND NATIONALITY
CHAPTER I--DEPARTMENT OF HOMELAND SECURITY
PART 316_GENERAL REQUIREMENTS FOR NATURALIZATION--Table of Contents

Sec. 316.5  Residence in the United States.
(c) Disruption of continuity of residence--

    (2) Claim of nonresident alien status for income tax purposes after lawful admission as a permanent resident.

An applicant who is a lawfully admitted permanent resident of the United States, but who voluntarily claims nonresident alien status to qualify for special exemptions from income tax liability, or fails to file either federal or state income tax returns because he or she considers himself or herself to be a nonresident alien, raises a rebuttable presumption that the applicant has relinquished the privileges of permanent resident status in the United States.

Clarification:

When people read Pub 519 above and interpret it literally, they will not conclude they are nonresident aliens because they haven't taken the time to learn the tricky definitions being used.  They will erroneously say, based on fraudulent IRS publications, that they meet the "substantial presence test" and therefore are considered resident aliens.  The important thing to remember as you determine whether you meet the substantial presence test is:

  • IRS Pub. 519 states that "United States" includes the 50 states.
  • You should NOT and CANNOT rely on fraudulent IRS publications, as above, to sustain a position or a good-faith belief, and therefore you should not assume that "United States" includes non-federal areas within the 50 states.  This is covered extensively in sections 3.15 and of The Great IRS Hoax.  Because you can't rely on IRS Publications or forms to sustain a position, then you have no choice but to rely on the law, which includes the Internal Revenue Code and the Treasury Regulations found in 26 C.F.R.
  • "United States", in the context of natural persons, cannot include nonfederal areas of the 50 states because of constitutional prohibitions against direct taxes found in Article 1, Section 9, Clause 4 and Article 1, Section 2, Clause three of the U.S. Constitution.

  • Another interesting fact to consider when you fill out your W-8 or W-8BEN form is that the entire Internal Revenue Code does not define the term "individual" to mean “natural person”!  The closest it comes is in 26 U.S.C. §7701(a)(1), where it defines “person” to include “individual” but not natural person, which is the proper legal term.  The word “individual” is then never defined anywhere in the Internal Revenue Code, so we have to use the legal definition.  If we look up the definition of “individual” in Black’s Law Dictionary, Sixth Edition, page 773, we find:

    Individual.  As a noun, this term denotes a single person as distinguished from a group or class, and also, very commonly, a private or natural person as distinguished from a partnership, corporation, or association; but it is said that this restrictive signification is not necessarily inherent in the word, and that it may, in proper cases, include artificial persons.

     

  • So naming “individuals” as “persons” liable for tax in 26 U.S.C. §7701(a)(1) still doesn’t imply natural persons like you and me, and according to the above legal definition, “individual” most commonly refers to artificial persons, which in this case are federal corporations and partnerships as we said earlier in this chapter.  The only thing Congress has done by using the word “individual” in the definition of “person” is create a circular definition.  Such a circular definition is also called a “tautology”: a word which is defined using itself, which we would argue doesn’t define anything!  If Congress wants to include natural persons as those liable for the income tax, then they must explicitly say so or a Internal Revenue Code is void for vagueness.  At least the California Revenue and Taxation Code defines it correctly:

17005.  "Individual" means a natural person.

  • Since we can’t find the definition in the Internal Revenue Code, then it must be buried somewhere in the regulations.  After searching all 17,000 pages of the the regulations (26 CFR) electronically, below is the only definition of “individual” we could find, which also appeared earlier in section 5.5.1

    26 CFR 1.1441-1 Requirement for the deduction and withholding of tax on payments to foreign persons.

    (c ) Definitions

    (3) Individual.

    (i) Alien individual.

    The term alien individual means an individual who is not a citizen or a national of the United States. See Sec. 1.1-1(c).

    (ii) Nonresident alien individual.

    The term nonresident alien individual means a person described in section 7701(b)(1)(B), an alien individual who is a resident of a foreign country under the residence article of an income tax treaty and Sec. 301.7701(b)-7(a)(1) of this chapter, or an alien individual who is a resident of Puerto Rico, Guam, the Commonwealth of Northern Mariana Islands, the U.S. Virgin Islands, or American Samoa as determined under Sec. 301.7701(b)-1(d) of this chapter. An alien individual who has made an election under section 6013 (g) or (h) to be treated as a resident of the United States is nevertheless treated as a nonresident alien individual for purposes of withholding under chapter 3 of the Code and the regulations thereunder.

  • There you have it, if you aren’t a U.S. citizen, the only other thing you can be is a nonresident alien and still be the “individual” mentioned in 26 U.S.C. §7701(a)(1) who is the subject of the income tax in Subtitle A!  If the Internal Revenue Code was written unambiguously, then it would define “Individual” to mean only federal corporations or federal partnerships, which is why they chose to define it ambiguously in the first place!

  • If the Internal Revenue Code was written unambiguously, then it would define “Individual” to mean only federal corporations or federal partnerships, which is why they chose to define it ambiguously in the first place.

  • Investigating this matter of the definition of “person” further, we find that there is a dead pointer in 4 U.S.C. 110(a) which points to a repealed 26 U.S.C. §3797 definition of the term "person".  You can't know whether you , as a “natural person” fit the description of "person" found in the tax code unless and until it is clearly and unambiguously defined to mean “natural person”, which it is not anywhere in subtitles A through C.  The closest realistic thing we have to a definition of the term "person" is in 26 CFR § 301.6671-1, which defines who penalties may be levied against under Subtitle F of the Internal Revenue Code:

[Code of Federal Regulations]

[Title 26, Volume 17, Parts 300 to 499]

[Revised as of April 1, 2000]

From the U.S. Government Printing Office via GPO Access

[CITE: 26CFR301.6671-1]

[Page 402]

TITLE 26--INTERNAL REVENUE

Additions to the Tax and Additional Amounts--Table of Contents

Sec. 301.6671-1 Rules for application of assessable penalties.

…

(b) Person defined.

 

For purposes of subchapter B of chapter 68, the term ``person'' includes an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs.

  • The reason the government won't define the term "person" is because the U.S. Supreme Court in Eisner v. Macomber, 252 U.S. 189 ruled that

“In order, therefore, that the [apportionment] clauses cited from article I [§2, cl. 3 and §9, cl. 4] of the Constitution may have proper force and effect …[I]t becomes essential to distinguish between what is an what is not ‘income,’…according to truth and substance, without regard to form.  Congress cannot by any definition it may adopt conclude the matter, since it cannot by legislation alter the Constitution, from which alone, it derives its power to legislate, and within those limitations  alone that power can be lawfully exercised… [pg. 207]…After examining dictionaries in common use we find little to add to the succinct definition adopted in two cases arising under the Corporation Tax Act of 1909, Stratton’s Independence v. Howbert, 231 U.S. 399, 415, 34 S.Sup.Ct. 136, 140 [58 L.Ed. 285] and Doyle v. Mitchell Bros. Co., 247 U.S. 179, 185, 38 S.Sup.Ct. 467, 469, 62 L.Ed. 1054…”

[emphasis added]

  • In the case of Doyle v. Mitchell Brothers Co., 247 U.S. 179, 185, 38 S.Ct. 467 (1918) referenced above in Eisner, we find that the U.S. Supreme court said:

    “…Whatever difficulty there may be about a precise scientific definition of ‘income,’ it imports, as used here, something entirely distinct from principal or capital either as a subject of taxation or as a measure of the tax; conveying rather the idea of gain or increase arising from corporate activities.”

    Doyle v. Mitchell Brothers Co., 247 U.S. 179, 185, 38 S.Ct. 467 (1918):

    [emphasis added]

  • In the case of  Stratton’s Independence v. Howbert, 231 U.S. 399, 414, 58 L.Ed. 285, 34 Sup.Ct. 136 (1913):

    “This court had decided in the Pollock Case that the income tax law of 1894 amounted in effect to a direct tax upon property, and was invalid because not apportioned according to populations, as prescribed by the Constitution.  The act of 1909 avoided this difficulty by imposing not an income tax, but an excise tax upon the conduct of business in a corporate capacity, measuring, however, the amount of tax by the income of the corporation…Flint v. Stone Tracy Co., 220 U.S. 107, 55 L.Ed. 389, 31 Sup.Ct.Rep. 342, Ann. Cas.”

  • When the Supreme Court says above that "income" means corporate profit, it means corporate profit from federal corporations.  State-chartered corporations are exempt, because the Supreme Court has ruled that the income tax is an indirect excise tax on privileges.  To tax a government privilege requires receipt of the privilege, and state corporations do not receive privileges, including the privilege of existing, from the federal government.