Title 26: Internal Revenue
PART 1—INCOME TAXES
nonresident alien individuals
§1.871-2 Determining residence of alien individuals.
(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.
(a) In general. A tax imposed by a State meets the requirements of section 6362(e) and this section if in effect it provides that:
(1) The State of residence of an individual, estate, or trust is determined according to paragraph (1), (2), or (3) respectively, of section 6362(e), and according to paragraph (b), (c), or (d), respectively, of this section.
(2) The liability for a resident tax imposed by such State upon an individual or trust which changes residence to another State in the taxable year is determined according to section 6362(e)(4) and paragraph (e) of this section.
(3) The rules relating to current collection of tax apply as provided in section 6362(e)(5) and paragraph (f) of this section.
(b) Residence of an individual -
(1) In general. Except as otherwise provided in subparagraph (5) of this paragraph (b), an individual is treated as a resident of a State with respect to a taxable year only if:
(i) His principal place of residence (as defined in subparagraph (2) of this paragraph (b)) is within such State for a period of at least 135 consecutive days, at least 30 days of which are in such taxable year; or
(ii) In the case of a citizen or resident of the United States who is not a resident of any State (determined as provided in subdivision (i) of this subparagraph) with respect to such taxable year, his domicile (as defined in subparagraph (3) of this paragraph (b)) is in such State for at least 30 days during such taxable year.
With respect to an individual who is a resident (determined as provided in subdivision (i) of this subparagraph) of more than one State during a taxable year, see paragraph (e) of this section.
(2) Principal place of residence -
(i) Definition. For purposes of subparagraph (1)(i) of this paragraph (b), and paragraph (d)(4) of this section, the term “principal place of residence” shall mean the place which is an individual's primary home. An individual's temporary absence from his primary home shall not effect a change with respect thereto. On the other hand, if an individual moves to another State, other than as a mere transient or sojourner, he shall be treated as having changed the location of his primary home.
(ii) Examples. The application of this subparagraph may be illustrated by the following examples:
A has a city home and a country home. He resides in the city home for 7 months of the year and uses the address of that home as his legal residence for purposes of driver's license, automobile registration, and voter registration. He resides in the country home 5 months of the year. His city home is considered his principal place of residence.
During the taxable year, B, a construction worker, is employed at several different locations in different States. The duration of each job on which he is employed ranges from a few weeks to several months, and he knows when he accepts a job what its approximate duration will be. He owns a house in State X which he uses as his legal residence for purposes of driver's license, automobile registration, and voter registration. In addition, his family lives there during the entire year, and B lives there during periods between jobs. However, the duration of the jobs and the distance between the job-sites and his house require him to live in the localities of the respective job-sites during the period of his employment, although occasionally he returns to his house in State X on weekends. B's house in State X is his principal place of residence during all of the taxable year.
C, a dependent of his parents who are residents of State X, is a full-time student in a 4-year degree program at a college in State Y. During the 9-month academic year, C lives on the college campus, but he returns to his parents' home in State X for the summer recess. C gives the State Y as his residence for purposes of his driver's license and voter registration, but lists the address of his parents' home in State X as his “permanent address” on the records of the college which he attends. Although C's domicile remains at his parents' home in State X, his presence in State Y cannot be regarded as that of a mere transient or sojourner; accordingly, C's principal place of residence is in State Y for that portion of the taxable year during which he attends college.
D loses his job in State X, where he lived and worked for many years. After a series of unsuccessful attempts to find other employment in State X, he accepts a job in State Y. D gives up his apartment in State X and moves to State Y upon commencing his new job; however, he intends to continue to explore available employment opportunities in State X so that he may return there as soon as an opportunity to do so arises. D changes his principal place of residence when he moves to State Y.
(3) Domicile defined. For purposes of subparagraph (1)(ii) of this paragraph (b), and paragraph (d)(4) of this section, the term “domicile” shall mean an individual's fixed or permanent home. An individual acquires a domicile in a place by living there; even for a brief period of time, with no definite present intention of later removing therefrom. Residence without the requisite intention to remain indefinitely will not suffice to change domicile, nor will intention to change domicile effect such a change until accompanied by actual removal. A domicile, once acquired, is maintained until a new domicile is acquired.
(4) Period of residence -
(i) General rule. An individual who becomes a resident of a State pursuant to subparagraph (1) of this paragraph (b), or who is at the beginning of a taxable year a resident of a State pursuant to such provision, shall be treated as continuing to be a resident of such State through the end of the taxable year, unless, prior thereto, such individual becomes a resident, under the principles of subparagraph (1), of another State or a possession or foreign country. In the event that the individual becomes a resident of such another jurisdiction prior to the end of the taxable year, his residence in such State shall be treated as ending on the day prior to the day on which he becomes a resident of such other jurisdiction pursuant to subparagraph (1).
(ii) Examples. The application of this subparagraph may be illustrated by the following examples:
A, a calendar-year taxpayer, has his principal place of residence in State X from the beginning of 1976 through August 1, 1976, when he gives up pemanently such principal place of residence. He spends the remainder of 1976 traveling outside of the United States, but does not become a resident of any other country. A is considered to be a resident of State X for the entire year 1976.
Assume the same facts as in example 1, except that A ceases his traveling and establishes his principal place of residence in State Y on November 15, 1976. Assume, also, that A maintains that principal place of residence for more than 135 consecutive days. Under these circumstances, for his taxable year 1976, A is considered to be a resident of State X from January 1 through November 14, and a resident of State Y from November 15 through December 31.
(5) Special rules.
(i) No provision of subchapter E or the regulations thereunder shall be construed to require or authorize the treatment of a Senator, Representative, Delegate, or Resident Commissioner as a resident of a State other than the State which he represents in Congress.
(6) Examples. The application of this paragraph may be illustrated by the following examples:
A, a calendar-year taxpayer, maintains his principal place of residence in State X from December 1, 1976, through April 15, 1977. Assuming that A was not a resident of any other jurisdiction at any time during 1976, A is treated as a resident of State X for the entire year 1976. Such result would obtain even if A was absent from State X on vacation for some portion of December 1976. Moreover, such result would obtain even if it is assumed that A was a domiciliary of State Y from January 1, 1976, through April 15, 1977, because an individual's domicile does not determine his residence so long as residence in one State for the taxable year can be determined from the general rule stated in the first sentence of paragraph (b)(1)
of this section.
Assume the same facts as in example 1 (including the fact of A's domicile in State Y), except that A maintained his principal place of residence in State Z from September 15, 1975, through January 31, 1976, inclusive. With respect to the year 1976, A is treated as a resident of State Z from January 1 through November 30, and as a resident of State X from December 1 through December 31. A's liability for the qualified taxes of the respective States for 1976 shall be determined pursuant to the provisions in paragraph (e)
of this section.
§. 75. Id. •• "'residence" in Amenican Leigsilation generally, although not always, means "Domicile" --The word" domicil," although so often used and commented upon by our courts, is rarely to be met with in our constitutions or legislative enactments." Residence" is the favorite term employed by the
American legislator to express the connection between person and place, its exact signification being left to construction, to be determined from the context and the apparent object sought to be attained by the enactment.1 It is to be regretted that these lights are often very feeble, and that not a little confusion has been introduced into our jurisprudence by the different views held by different courts with regard to the exact force of this and similar words when applied to substantially the same subject-matter. "Residence" when used in statutes is generally construed to mean" domicil." 2 In fact, the great bulk of the cases of domicil reported in the American books are cases of statutory residence. This is especially true with regard to the subjects of voting, eligibility to office, taxation, jurisdiction in divorce, probate and administration, etc. With respect to these subjects there is substantial unanimity
in this country in holding statutory residence to mean domicil. In cases of pauper settlement, limitations, etc., there is much conflict of opinion, and in those of attachment the weight of authority is the other way.5
[A Treatiise on the law of Domicile, M.W. Jacobs, Little Brown and Company, 1887, Section 75, pp. 123-124]
[EDITOR'S NOTE: Government identity theft occurs when, in a civil proceeding, the government PRESUMES, usually falsely, that physical presence ="residence". It does NOT. See: Government Identity Theft, Form #05.046]
But all the limitations applicable to acquiring a new domicile, particularly when a domicile of national origin is to be abandoned, do not necessarily attach to taking out a new residence, either in this country or England. The United States Income Tax Acts, from the act of 1913 (38 Stat. 114) on, have been uniform in levying a tax on the
entire income of aliens, if resident here, and residence has been construed by the Commissioner in all his rulings as something which may be less than a domicile, which fixes the law of the devolution of property and determines the incidence of estate and succession taxes. It is true that 'residence' is ordinarily used as the equivalent of domicile in statutes relating to probate, administration, and succession taxes. So, as might be expected, in the Revenue Acts, the word 'resident,' when employed in the portions of these acts dealing with the Estate Tax Law, means 'domiciled,' and has been so construed by the practice and regulations of the department.
It is contended that the same words, when used in the titles of the same acts dealing with the income tax, must have the same meaning. But the estate tax provisions were first introduced in the Revenue Act in 1916 (39 Stat. 756), after the construction of the word 'resident' in that act had alrea dy become fixed by the ruling of the department at least as early at Treasury Decision 2242 of September 17, 1915, infra. Moreover, the incidence of estate and succession taxes has historically been determined by domicile and situs, and not by the fact of actual residence. Frick v. Pennsylvania, 268 U.S. 473, 45 S.Ct. 603, 69 L.Ed. 1058, 42 A.L.R. 316. As Justice Holmes said in Bullen v. Wisconsin, 240 U.S. at page 631, 36 S.Ct. 474 (60 L.Ed. 830):
'* * * As the states where the property is situated, if governed by the common law, generally recognize the law of the domicile as determining the succession, it may be said that, in a practical sense at least, the law of the domicile is needed to establish the inheritance. Therefore the inheritance may be taxed at the place of domicile, whatever the limitations of power over the specific chattels may be. * * *'
As was said, also, in the Matter of Martin, 173 App.Div.at page 3, 158 N.Y.S. 916:
'* * * in many instances there is a difference between the legal intendment of the terms 'residence' and domicile' * * * but in the matter of succession and transfer taxes the theory of the action of the taxing power renders the terms synonymous. In the case of succession the intestate's personalty is distributed according to the Statute of Distributions of the State of the domicile. Therefore, that State which permits the inheritance is entitled to impose a duty on that privilege. * * *'
But in personal and income taxes domicile has played no necessary part, and residence at a fixed date has determined the liability for the tax. Bell v. Pierce, 51 N.Y. 12; Douglas v. Mayor, 9 N.Y.Super.Ct. 110; Matter of Austen, 13 A.D. 247, 42 N.Y.S. 1097; Finley v. Philadelphia, 32 Pa. 361. In the New York Income Tax law (Consol. Laws, c. 60), which is largely based on the federal acts, section 350 defines a 'resident' as 'any person domiciled in the state of New York, and any other person who maintains a permanent place of abode within the state, and spends in the aggregate more than seven months of the taxable year within the state.'
Likewise under the English income tax laws, prior to 1914, residence, and not domicile, was the test of liability (Inland Revenue v. John Lambert Caldwalader, (1904) 7 Session Cases, 146; Attorney General v. Coots, 4 Price, 183), though income, unless derived from a trade or employment carried on in England, had to be received there in order to render one subject to taxation upon it (Liverpool, London & Globe Ins. Co. v. Bennett, (1913) A.C. 610). But since 1914 a resident of more than six months (though not domiciled) has had to pay an income tax on all income received in the United Kingdom, and a domiciled person a tax on income derived from all sources. Thus, under all the British income tax laws, a resident, though having no domicile in England, had to pay a tax on all income received in England whatever its source. Whether he received all his income there, of course, depended on circumstances, but whatever he received was taxable against a resident, irrespective of his domicile.
In the federal act of 1913, income taxes are imposed upon 'the entire net income arising or accruing from all sources in the preceding calendar year to every citizen of the United States, whether residing at home or abroad, and to every person residing in the United States, though not a citizen thereof, * * * and a like tax shall be assessed, levied, collected, and paid annually upon the entire net income from all property owned and of every business, trade, or profession carried on in the United States by persons residing elsewhere. ' 38 Stat. 166.
The Treasury Department made its ruling as to the meaning of 'residing' in the foregoing act in Treasury Decision 2242, in which occurred the following language:
"Residence,' as used in subdivision 1 of
paragraph A of the Act of October 3, 1913, and T.D. 2109, is held to be--
'That place where a man has his true, fixed, and permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning, and indicates permanency of occupation as distinct from lodging or boarding or temporary occupation.
'For the purposes of the income tax it is held that where for business purposes or otherwise, an alien is permanently located in the United States, has there his principal business establishment, and is there permanently occupied or employed, even though his domicile may be without the United States, he will be held to be within the definition of 'every person residing in the United States, though not a citizen thereof, * * *' while aliens who are physically present in the United States but only temporarily resident or employed therein (as for a season or other similarly definite term, and with the expectation or intention of leaving the United States upon the termination of employment or accomplishment of the purpose which necessitated presence in the United States) are within the class of 'persons residing elsewhere. * * *''
The Revenue Act of September 8, 1916, chapter 463 (39 Stat. 756), as amended by the Act of March 3, 1917 (39 Stat. 1000), as further amended by the Act of October 3, 1917 (40 Stat. 300), provides in part:
'Sec. 1. (a) That there shall be levied, assessed, collected, and paid annually upon the entire net income received in the preceding calendar year from all sources within the United States by every individual, a nonresident alien, including interest on bonds, notes, or other interest-bearing obligations of residents, corporate or otherwise.
'(b) In addition to the income tax imposed by subdivision (a) of this section (herein referred to as the normal tax) there shall be levied, assessed, collected, and paid upon the total net income of every individual, or, in the case of a nonresident alien, the total net income received from all sources within the United States, an additional income tax (herein referred to as the additional tax). * * * ' Comp.St. § 6336aa.
The corresponding sections of the Revenue Act of February 24, 1919 (40 Stat. 1057 (Comp.St. § 6336 1/8e)), read:
'Sec. 210. That, in lieu of the taxes imposed by subdivision (a) of section 1 of the Revenue Act of 1916 and by section 1 of the Revenue Act of 1917, there shall be levied, collected, and paid for each taxable year upon the net income of every individual a normal tax at the following rates:
'(a) For the calendar year 1918, 12 per centum of the amount of the net income in excess of the credits provided in section 216: Provided, that in the case of a citizen or resident of the United States the rate upon the first $4,000 of such excess amount shall be 6 per centum;
'(b) For each calendar year thereafter, 8 per centum of the amount of the net income in excess of the credits provided in section 216: Provided, that in the case of a citizen or resident of the United States the rate upon the first $4,000 of such excess amount shall be 4 per centum.'
Section 213 (Comp.St. § 6336 1/8ff) contains the following provision:
'(c) In the case of nonresident alien individuals, gross income includes only the gross income from sources within the United States, including interest on bonds, notes, or other interest-bearing obligations of residents, corporate or otherwise, dividends from resident corporations, and including all amounts received (although paid under a contract for the sale of goods or otherwise) representing profits on the manufacture and disposition of goods within the United States. * * *'
In the Revenue Act of 1921 (42 Stat. 227 (Comp.St. § 6336 1/8e)) we find:
'Sec. 210. That, in lieu of the tax imposed by Section 210 of the Revenue Act of 1918, there shall be levied, collected, and paid for each taxable year upon the net income of every individual a normal tax of 8 per centum of the amount of the net income in excess of the credits provided in section 216: Provided, that in the case of a citizen or resident of the United States the rate upon the first $4,000 of such excess amount shall be 4 per centum.'
Section 213 (Comp.St. § 6336 1/8ff) defines gross income in the case of various classes of taxpayers, and subdivision (c) reads:
'(c) In the case of a nonresident alien individual, gross income means only the gross income from sources within the United States, determined under the provisions of section 217.'
We are referred to no formal ruling of the Treasury Department after Treasury Decision 2242, until article 312 of the Regulation promulgated under the 1919 act, which was as follows:
'Art. 312. Who is a Nonresident Alien Individual.-- 'Nonresident alien individual' means an individual (a) whose residence is not within the United States and (b) who is not a citizen of the United States. Any alien living in the United States who is not a mere transient is a resident of the United States for purpose of the income tax. Whether he is a transient or not is determined by his intentions with regard to his stay. If he lives in the United States and has no definite intention as to his stay, he is a resident. The best evidence of his intention is afforded by the conduct, acts and declarations of the alien. The typical transient is one who stops for a short time in the course of a journey through the United States, sometimes performing labor, sometimes not, or one who enters the United States intending only to stop long enough to carry out some purpose, object or plan not involving an extended stay. A mere floating intention, indefinite as to time, to return to another country is not sufficient to constitute him a transient.'
Under the act of 1921, Regulation 62 was promulgated, which provides as follows:
'Art. 311. Who is a Nonresident Alien.-- A 'nonresident alien individual' means an individual (a) whose residence is not within the United States and (b) who is not a citizen of the United States. 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 or not 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.'
Such a continuous construction of the word 'resident' ever since the passage of the Income Tax Act of 1913 would in any case have great weight under well-known principles. But to this is added the fact that this construction has, so far as we are informed, never before been questioned during all these years, and Congress has again and again amended the act without defining the word in any different way. In such circumstances, the departmental construction, except where the text of the statute furnishes cogent reason to depart from it, must be adopted by the courts. National Lead Co. v. United States, 252 U.S. 140, 40 S.Ct. 237, 64 L.Ed. 496; Heiner v. Colonial Trust Co., 48 S.Ct. 65, 72 L.Ed.--; Robertson v. Downing, 127 U.S. 607, 8 S.Ct. 1328, 32 L.Ed. 269. Moreover, the hardship of the double taxation would have been prevented by reason of section 222(a)(3) of the Revenue Act (Comp.St. § 63361/8k), if Great Britain, the country of which the plaintiff is a citizen, had allowed to citizens of the United States residing there a credit of taxes paid by them in the United States upon their taxes paid in Great Britain, but there has been no such reciprocal legislation. In the case of our own citizens domiciled elsewhere, we exact income taxes upon their entire income, from whatever source derived. Cook v. Tait, 265 U.S. 47, 44 S.Ct. 444, 68 L.Ed. 895. While this legislation is severe, and as a matter of economic policy may not be sound, it is hard to see why aliens who have acquired a fixed abode here should fare better. Our citizens domiciled abroad would be generally subjected to a tax on all their income by the country in which they live, and even when living in England only six months are liable to pay taxes on all income received there.
But, in any event, we are bound by the long unquestioned construction of the term 'residence' by the department charged with the administration of the Revenue Acts. The word is fairly capable of the meaning they have given to it and has often received that interpretation in income tax legislation from the earliest times. Mr. Bowring acquired an abode here of no transient character and so long continued, and so substantial, as to be of a permanent nature. He certainly became a resident within the meaning of the departmental regulations. We hold these valid, and, under all the circumstances, binding upon the courts and accordingly affirm the judgment.
[Bowring v. Bowers, 24 F.2d 918 (1928)]
[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
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.
Unless otherwise specified, for purposes
of this chapter, including Sec. 316.2 (a)(3), (a)(5), and (a)(6),
an alien's residence
is the same as that alien's domicile, or principal actual dwelling
place, without regard to the alien's intent, and the duration of
an alien's residence in a particular location is measured from the
moment the alien first establishes residence in that location.
Martinez v. Bynum, 461 U.S. 321 (1983)
A difference between the concepts
of residence and domicile has long been recognized. See, e. g.,
Mitchell v. United States, 21 Wall. 350 (1875); Penfield v. Chesapeake,
O. & S. R. Co.,
134 U.S. 351 (1890); Texas v. Florida,
306 U.S. 398 (1939). A person is generally a resident of any
State with which he has a well-settled connection. "[M]ere lodging
or boarding or temporary occupation" is not enough to establish
a residence. Dwyer v. Matson, 163 F.2d 299, 303 (CA10 1947). See
generally Reese & Green, That Elusive Word, "Residence," 6 Vand.
L. Rev. 561, 563 (1953). Under the law of Texas, for example, "[r]esidence
may be temporary or permanent in nature. However, residence generally
requires some condition greater than mere lodging. The term implies
a place of abode, albeit temporary, rather than a mere transient
lodging." Whitney v. State, 472 S. W. 2d 524, 525 (Tex. Crim. App.
1971) (citation omitted). See, e. g., Brown v. Boulden, 18 Tex.
431, 432 (1857); Travelers Indemnity Co. v. Mattox, 345 S. W. 2d
290, 292 (Tex. Civ. App. 1961); Prince v. Inman, 280 S. W. 2d 779
(Tex. Civ. App. 1955). "Intent to remain indefinitely" in the State
need not be shown in order to be considered a resident of a
[461 U.S. 321, 339] State.
5 As the Texas Supreme Court stated in Snyder v. Pitts, 150
Tex. 407, 413, 241 S. W. 2d 136, 139 (1951), "[f]rom the fact that
there can be but one domicile and several residences, we arrive
at the conclusion that the element of `intent to make it a permanent
home' is not necessary to the establishment of a second residence
away from the domicile." [461 U.S. 321, 340]
On the other hand, an individual
has only one domicile, which is generally the State with which he
is currently most closely connected, but which may be a State with
which he was closely connected in the past. See generally Williams
v. North Carolina,
325 U.S. 226, 229 (1945); District of Columbia v. Murphy,
314 U.S. 441 (1941); Williamson v. Osenton,
232 U.S. 619 (1914). Traditionally, an individual has been said
to acquire a new domicile when he resides in a State with "the absence
of any intention to live elsewhere," id., at 624, or with "the absence
of any present intention of not residing permanently or indefinitely
in' the new abode." Ibid., citing A. Dicey, The Conflict of Laws
111 (2d ed. 1908). The concept of domicile has typically been reserved
for purposes that clearly require general recognition of a single
State with which the individual, actually or presumptively, is most
The majority errs in assuming that,
as a general matter, States are free to close their schools to all
but domiciliaries of the State. To begin with, it is clear that
residence, not domicile, is the traditional standard of eligibility
for lower school education,
7 just as residence often has been used to determine
[461 U.S. 321, 341] whether an individual is subject
to state income tax, whether his property in the State is exempt
from attachment, and whether he is subject to jury duty.
8 Moreover, this Court's prior decisions which speak of the
constitutionality of a bona fide residence standard provide no support
for the majority's assumption. Although this Court has referred
to a domicile requirement with approval in the context of higher
education, it is incumbent upon the State of Texas to demonstrate
that the classification transplanted from another statutory scheme
is justified by "`the purposes for which the state desires to use
it.'" Plyler v. Doe,
457 U.S. 202, 226 (1982), quoting Oyama v. California,
332 U.S. 633, 664 -665 (1948) (Murphy, J., concurring).
[Martinez v. Bynum, 461 U.S. 321 (1983)]