[Code of Federal Regulations]
[Title 26, Volume 18]
[Revised as of April 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 26CFR301.7701(b)-1]

[Page 653-655]
 
                       TITLE 26--INTERNAL REVENUE
 
    CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY 
                               (CONTINUED)
 
PART 301_PROCEDURE AND ADMINISTRATION--Table of Contents
 
                               Definitions
 
Sec. 301.7701(b)-1  Resident alien.

    (a) Scope. 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 Sec. Sec. 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 
Sec. Sec. 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 Sec. 
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 Sec. 20.0-1(b)(1) and (2) and Sec. 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.
    (3) Administrative or judicial determination of abandonment of 
resident status. An administrative or judicial determination of 
abandonment of resident status may be initiated by the alien individual, 
the Immigration and Naturalization Service (INS), or a consular officer. 
If the alien initiates this determination, resident status is considered 
to be abandoned when the individual's application for abandonment (INS 
Form I-407) or a letter stating the alien's intent to abandon his or her

[[Page 654]]

resident status, with the Alien Registration Receipt Card (INS Form I-
151 or Form I-551) enclosed, is filed with the INS or a consular 
officer. If INS replaces any of the form numbers referred to in this 
paragraph or Sec. 301.7701(b)-2(f), refer to the comparable INS 
replacement form number. For purposes of this paragraph, an alien 
individual shall be considered to have filed a letter stating the intent 
to abandon resident status with the INS or a consular office if such 
letter is sent by certified mail, return receipt requested (or a foreign 
country's equivalent thereof). A copy of the letter, along with proof 
that the letter was mailed and received, should be retained by the alien 
individual. If the INS or a consular officer initiates this 
determination, resident status will be considered to be abandoned upon 
the issuance of a final administrative order of abandonment. If an 
individual is granted an appeal to a federal court of competent 
jurisdiction, a final judicial order is required.
    (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 Sec. 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 Sec. 
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.
    (4) Thirty-one day minimum. If an individual is not physically 
present for more than 30 days during the current year, the substantial 
presence test will not be applied for that year even if the three-year 
total is 183 or more days. For purposes of the substantial presence 
test, it is irrelevant that an individual was not present for more than 
30 days in the first or second year preceding the current year.
    (d) Application of section 7701(b) to the possessions and 
territories--(1) Application to aliens. Section 7701(b) provides the 
basis for determining whether an alien individual is a resident of a 
United States possession or territory that administers income tax laws 
that are identical (except for the substitution of the name of the 
possession or territory for the term ``United States'' where 
appropriate) to those in force in the United States. If, after the 
application of section 7701(b) and the regulations thereunder, an alien 
individual is a resident of the United States and a resident of a United 
States possession or territory, the principles of Sec. 301.7701(b)-2 
(d) (relating to significant contacts maintained by an individual with a 
foreign country) shall be applied in order to establish that the 
individual is a resident alien of either the United States or a United 
States possession or territory, but not both. See Sec. 1.933-1 (a) of 
this chapter for determining whether an individual (including a U.S. 
citizen or national) is a bona fide resident of Puerto Rico. See

[[Page 655]]

section 931 and the regulations thereunder for the determination of 
whether an individual (including a U.S. citizen or national) is a bona 
fide resident of American Samoa.
    (2) Non-application to citizens. Section 7701(b) does not provide 
the basis for determining whether a United States citizen or national is 
a bona fide resident of a United States possession or territory. For 
example, a United States citizen who is present in a United States 
possession or territory for 183 days during a calendar year will not 
automatically be a ``bona fide resident'' of that possession or 
territory. Whether a United States citizen or national is a bona fide 
resident of a possession or territory is determined under sections 931 
through 933 and Sec. 1.935-1 to the extent it remains effective after 
December 31, 1984.
    (e) Examples. This section may be illustrated by the following 
examples:

    Example 1. B, an alien individual, is present in the United States 
for 122 days in the current year. He was present in the United States 
for 122 days in the first preceding calendar year and for 122 days in 
the second preceding calendar year. In determining his status for the 
current year, B counts all 122 days in the United States in the current 
year plus \1/3\ of the 122 days in the United States in the first 
preceding calendar year (40\2/3\ days) and \1/6\ of the 122 days in the 
United States during the second preceding calendar year (20\1/3\ days). 
The total of 122+40\2/3\+20\1/3\ equals 183 days. B meets the 
substantial presence test and is a resident alien for the current year.
    Example 2. C, an alien individual, is present in the United States 
for 25 days during the current year. She was present in the United 
States for 365 days during the first preceding year and 365 days during 
the second preceding year. The substantial presence test does not apply 
because C is present in the United States for fewer than 31 days during 
the current year.
    Example 3. D, an alien individual, is present in the United States 
for 170 days during the current year. He was present in the United 
States for 30 days during the first preceding year and 30 days during 
the second preceding year. In determining his status for the current 
year, D counts all 170 days in the United States in the current year 
plus \1/3\ of the 30 days in the United States in the first preceding 
calendar year (10 days) and \1/6\ of the 30 days in the United States 
during the second preceding calendar year (5 days). The total of 
170+10+5 equals 185 days. D meets the substantial presence test and is a 
resident alien for the current year notwithstanding the fact that he was 
present in the United States for fewer than 31 days in each of the two 
preceding years.

[T.D. 8411, 57 FR 15242, Apr. 27, 1992; 57 FR 28612, June 26, 1992; 57 
FR 37190, Aug. 18, 1992]