Law of Nations: Definition of
"Resident"-HOT! This is the book upon which the writing
of our Constitution was based by the Founding Fathers
Black's Law Dictionary,
Sixth Edition, p. 1309:
Resident. “Any person who occupies
a dwelling within the State,
has a present intent to remain within the State for a period
of time, and manifests the genuineness of that intent by establishing
an ongoing physical presence within the State together with
indicia that his presence within the State is something
other than merely transitory
in nature. The word “resident” when used as a noun means a dweller,
habitant or occupant; one who resides or dwells in a place for a period
of more, or less, duration; it signifies one having a residence, or
one who resides or abides. [Hanson v. P.A. Peterson Home Ass’n,
35 Ill.App2d 134, 182 N.E.2d 237, 240] [Underlines added]
Word “resident” has
many meanings in law, largely determined by statutory context in
which it is used. [Kelm v. Carlson, C.A.Ohio, 473, F2d 1267,
[Black's Law Dictionary,
Sixth Edition, p. 1309]
United States v. The Penelope, 2 Pet.Adm. 438, 1806 U.S. Dist. LEXIS 5 (1806)
In the case of Hylton v. Brown [Case No. 6,981] in the circuit court, and cases in this court, the following has always been my definition of the words "resident," or "inhabitant," which, in my view, mean the same thing. "An inhabitant, or resident, is a person coming into a place with an intention to establish his domicil, or permanent residence; and in consequence, actually resides: under this intention he takes a house, or lodgings, as one fixed and stationary, and opens a store, or takes any step preparatory to business, or in execution of this settled intention. [**490] The time is not so essential as the intent executed, by making or beginning the actual establishment, though it is abandoned, in a short or longer period." A mere transitory coming for a special purpose, a mere transient visit, does not fall within the legal meaning of the word "resident." He must have the intent of staying, or abiding, for permanent purposes; and begin it, though he does not continue to prosecute it. On the meaning, [*6] if doubts exist in common interpretation, we must be governed by the legal definition.
[United States v. The Penelope, 2 Pet.Adm. 438, 1806 U.S. Dist. LEXIS 5 (1806)]
Jowitts English Law Dictionary, 1977
RESIDENT, An agent, minister, or officer residing in any distant place with the dignity of an ambassador; the chief representative of government at certain princely states; Residents are a class of public ministers inferior to ambassadors and envoys, but, like them, they are protected under the law of nations.
[Jowitts English Law Dictionary, 1977]
(c) Disruption of continuity of residence -
(1) Absence from the United States -
(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.
[EDITORIAL: Sounds like:
1. "permanent residence" ain't so permanent after all!
2. The definition of "permanent" in 8 U.S.C. §1101(a)(31) excludes situations where one unilaterally renounces all privileges such as that of being a "resident alien".
The wording is also suspect, because they say "to qualify for special exemptions". What they SHOULD have said was EXCLUSIONS, not EXEMPTIONS under 26 U.S.C. §872. But they don't want to put a crack in the damn dam by being truthful.]
26 C.F.R. §301.7701(b)-1 Resident alien.
(c) Substantial presence test—
(1) In general.
An alien individual is a resident alien if the individual meets the substantial presence test. An individual satisfies this test if he or she has been present in the United States on at least 183 days during a three year period that includes the current year. For purposes of this test, each day of presence in the current year is counted as a full day. Each day of presence in the first preceding year is counted as one-third of a day and each day of presence in the second preceding year is counted as one-sixth of a day. For purposes of this paragraph, any fractional days resulting from the above calculations will not be rounded to the nearest whole number. (See §301.7701(b)–9(b)(2) for transitional rules for calendar years 1985 and 1986.)
(2) Determination of presence—
(i) Physical presence.
For purposes of the substantial presence test, an individual shall be treated as present in the United States on any day that he or she is physically present in the United States at any time during the day. (But see §301.7701(b)–3 relating to days of presence that may be excluded.)
(ii) United States.
For purposes of section 7701(b) and the regulations thereunder, the term United States when used in a geographical sense includes the states and the District of Columbia. It also includes the territorial waters of the United States and the seabed and subsoil of those submarine areas which are adjacent to the territorial waters of the United States and over which the United States has exclusive rights, in accordance with international law, with respect to the exploration and exploitation of natural resources. It does not include the possessions and territories of the United States or the air space over the United States.
(3) Current year. The term current year means any calendar year for which an alien individual is determining his or her resident status.
[EDITORIAL: Note that the term "state" as used above includes ONLY the federal areas within the exteriror limits of the constitutional states, and not the ENTIRE state of the Union. This is evidenced by the definition of "this State" in the California Revenue and Taxation Code, for instance and also by the Wikipedia definition of "federal enclave"]
Revenue Ruling 75-489, p. 511
“No provision of the Internal Revenue Code or the regulations thereunder holds that a citizen of the United States is a resident of the United States for purposes of its tax. Several sections of the Code provide Federal income tax relief or benefits to citizens of the United States who are residents without the United States for some specified period. See sections 911, 934, and 981. These sections give recognition to the fact that not all the citizens of the United States are residents of the United States.”
[Rev.Rul. 75-489. p. 511]
Revenue Ruling 75-357, p. 5
“Sections 1.1-1(b) and 1.871-1 of the Income Tax Regulations provide that all citizens of the United States, wherever resident, and all resident alien individuals are liable to the income taxes imposed by the Internal Revenue Code whether the income is received from sources within or without the United States. See, however, section 911 of the Code. (Emphasis added.)”
[Rev.Rul. 75-357, p. 5]
(b) Definition of resident alien and nonresident alien
(1) In general
For purposes of this title (other than subtitle B) -
(A) Resident alien
An alien individual shall be
treated as a resident of the United States with respect to any calendar year if (and only if) such individual
meets the requirements of clause (i), (ii), or (iii):
(i) Lawfully admitted for permanent residence
Such individual is a lawful permanent resident of the United
States at any time during such calendar year.
(ii) Substantial presence test
Such individual meets the substantial presence test of paragraph
(iii) First year election
Such individual makes the election provided in paragraph
26 C.F.R. §25.2501-1(b)
A resident is an individual who has his domicile in the United States at the time of the gift. For this purpose the United States includes the States and the District of Columbia. The term also includes the Territories of Alaska and Hawaii prior to admission as a State. See section 7701(a)(9). All other individuals are nonresidents. A person acquires a domicile in a place by living there, for even a brief period of time, with no definite present intention of moving therefrom. Residence without the requisite intention to remain indefinitely will not constitute domicile, nor will intention to change domicile effect such a change unless accompanied by actual removal.
26: Internal Revenue
PART 301—PROCEDURE AND ADMINISTRATION
§ 301.7701(b)-1 Resident alien.
Section 301.7701(b)–1(b) provides
rules for determining whether an alien individual is a lawful permanent
resident of the United States. Section 301.7701(b)–1(c) provides
rules for determining if an alien individual satisfies the substantial
presence test. Section 301.7701(b)–2 provides rules for determining
when an alien individual will be considered to maintain a tax home in a foreign country and to have
a closer connection to that foreign country. Section 301.7701(b)–3
provides rules for determining if an individual is an exempt individual
because of his or her status as a foreign government-related individual,
teacher, trainee, student, or professional athlete. Section 301.7701(b)–3
also provides rules for determining whether an individual may exclude
days of presence in the United States because the individual was
unable to leave the United States because of a medical condition.
Section 301.7701(b)–4 provides rules for determining an individual's
residency starting and termination dates. Section 301.7701(b)–5
provides rules for applying section 877 to a nonresident alien individual.
Section 301.7701(b)–6 provides rules for determining the taxable
year of an alien. Section 301.7701(b)–7 provides rules for determining
the effect of these regulations on rules in tax conventions to which
the United States is a party. Section 301.7701(b)–8 provides procedural
rules for establishing that an individual is a nonresident alien.
Section 301.7701(b)–9 provides the effective dates of section 7701(b)
and the regulations under that section. Unless the context indicates
otherwise, the regulations under §§301.7701(b)–1 through 301.7701(b)–9
apply for purposes of determining whether a United States citizen
is also a resident of the United States. (This determination may
be relevant, for example, to the application of section 861(a)(1)
which treats income from interest-bearing obligations of residents
as income from sources within the United States.) The regulations
do not apply and §§1.871–2 and 1.871–5 of this chapter continue
to apply for purposes of the bona fide residence test of section
911. See §1.911–2(c) of this chapter. 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.
(b) Lawful permanent resident—(1) Green card test. An alien is a resident alien with respect to a calendar year if
the individual is a lawful permanent resident at any time during
the calendar year. A lawful permanent resident is an individual
who has been lawfully granted the privilege of residing permanently
in the United States as an immigrant in accordance with the immigration
laws. Resident status is deemed to continue unless it is rescinded
or administratively or judicially determined to have been abandoned.
(2) Rescission of resident status. Resident status is
considered to be rescinded if a final administrative or judicial
order of exclusion or deportation is issued regarding the alien
individual. For purposes of this paragraph, the term “final judicial
order” means an order that is no longer subject to appeal to a higher
court of competent jurisdiction.
A domestic corporation
is one organized or created in the United States, including only
the States (and during the periods when not States, the Territories
of Alaska and Hawaii), and the District of Columbia, or under the
law of the United States or of any State or Territory. A foreign
corporation is one which is not domestic. A domestic corporation
is a resident corporation even though it does no business and owns
no property in the United States. A foreign corporation
engaged in trade or business within the United States is referred
to in the regulations in this chapter as a resident foreign corporation,
and a foreign corporation not engaged in trade or business within
the United States, as a nonresident foreign corporation. A partnership engaged in trade or business within the United States
is referred to in the regulations in this chapter as a resident
partnership, and a partnership not engaged in trade or business
within the United States, as a nonresident partnership. Whether a partnership
is to be regarded as resident or nonresident is not determined by
the nationality or residence of its members or by the place in which
it was created or organized.
[Amended by T.D. 8813, Federal Register: February 2, 1999 (Volume
64, Number 21), Page 4967-4975]
NOTE!: Whether a "person" is a "resident" or "nonresident"
has NOTHING to do with the nationality or residence, but with whether
it is engaged in a "trade or business"]
TITLE 26 > Subtitle A > CHAPTER 1 > Subchapter N > PART I > § 865
§ 865. Source rules for personal property sales
(g) United States
For purposes of this section—
(1) In general
Except as otherwise provided in this subsection—
The term “United States resident” means—
(i) any individual who—
(I) is a United States citizen or
a resident alien and does not have a tax home (as defined in section 911 (d)(3)) in a foreign country, or
(II) is a nonresident alien and has
a tax home (as so defined) in the United States, and
(ii) any corporation, trust, or estate
which is a United States person (as defined in section 7701 (a)(30)).
The term “nonresident” means any person
other than a United States resident.
Merriam-Webster's Dictionary of Law ©1996.
who has a residence in a particular place but does not necessarily have
the status of a citizen.
Note that even when a person is not a resident, he or she may elect to be treated as a resident with his or her consent. The rules
for electing to be treated as a resident are found in IRS Publication
54: Tax Guide for U.S. Citizens
and Resident Aliens Abroad.
RESIDENCY OF PERSONS
We as people are not "resident" or "domiciled" - "within" we
are an "inhabitant" and a temporary sojourner upon the land. Our
life is for a specific time and once it is over its over on this
world. However, an entity such as a corporation has perpetual life
and it is a creature of the State under the Municipal Corporations
Act of 1871. Prior to that time a corporation could only be formed
by an Act of the Legislature of the state where the corporation
would operate its business. Now all one needs to do is apply to
the Corporate Division of the Secretary of State for the privilege
of doing business as a corporation.