---
kind: "range"
citation: "26 C.F.R. §§ 1.871-2–1.871-5"
title: "26"
from: "1.871-2"
to: "1.871-5"
count: 4
url: "https://uscodex.org/cfr/26/1.871-2..1.871-5"
---

# §1.871-2. Determining residence of alien individuals.

- (a) **General.** The term nonresident alien individual means an individual whose residence is not within the United States, and who is not a citizen of the United States. The term includes a nonresident alien fiduciary. For such purpose the term fiduciary shall have the meaning assigned to it by [section 7701(a)(6)](/cfr/26/7701.md?p=a-6) and the regulations in [part 301](/cfr/26/part301.md) of this chapter (Regulations on Procedure and Administration). For presumption as to an alien's nonresidence, see [paragraph (b)](/cfr/26/1.871-4.md?p=b) of § 1.871-4.
- (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.
- (c) **Application and effective dates.** Unless the context indicates otherwise, [§§ 1.871-2 through 1.871-5](/cfr/26/1.871-2..1.871-5.md) apply to determine the residence of aliens for taxable years beginning before January 1, 1985. To determine the residence of aliens for taxable years beginning after December 31, 1984, see [section 7701(b)](/cfr/26/7701.md?p=b) and §§ [301.7701(b)-1](/cfr/26/301.7701..1.md) through [301.7701(b)-9](/cfr/26/301.7701..9.md) of this chapter. However, for purposes of determining whether an individual is a qualified individual under [section 911(d)(1)(A)](/cfr/26/911.md?p=d-1-A), the rules of §§ 1.871-2 and [1.871-5](/cfr/26/1.871-5.md) shall continue to apply for taxable years beginning after December 31, 1984. 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)](/cfr/26/20.0-1.md?p=b-1) and [(2)](/cfr/26/20.0-1.md?p=b-2) and [§ 25.2501-1(b)](/cfr/26/25.2501-1.md?p=b) of this chapter, respectively.

# §1.871-3. Residence of alien seamen.


In order to determine whether an alien seaman is a resident of the United States for purposes of the income tax, it is necessary to decide whether the presumption of nonresidence (as prescribed by [paragraph (b)](/cfr/26/1.871-4.md?p=b) of § 1.871-4) is overcome by facts showing that he has established a residence in the United States. Residence may be established on a vessel regularly engaged in coastwise trade, but the mere fact that a sailor makes his home on a vessel which is flying the United States flag and is engaged in foreign trade is not sufficient to establish residence in the United States, even though the vessel, while carrying on foreign trade, touches at American ports. An alien seaman may acquire an actual residence in the United States within the rules laid down in [§ 1.871-4](/cfr/26/1.871-4.md), although the nature of his calling requires him to be absent for a long period from the place where his residence is established. An alien seaman may acquire such a residence at a sailors' boarding house or hotel, but such a claim should be carefully scrutinized in order to make sure that such residence is bona fide. The filing of Form 1078 or taking out first citizenship papers is proof of residence in the United States from the time the form is filed or the papers taken out, unless rebutted by other evidence showing an intention to be a transient.


# §1.871-4. Proof of residence of aliens.

- (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)](#c-1-iii) or [(2)(iii)](#c-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.

# §1.871-5. Loss of residence by an alien.


An alien who has acquired residence in the United States retains his status as a resident until he abandons the same and actually departs from the United States. An intention to change his residence does not change his status as a resident alien to that of a nonresident alien. Thus, an alien who has acquired a residence in the United States is taxable as a resident for the remainder of his stay in the United States.