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)).
Nonresident Alien Position, Form #05.020 (OFFSITE LINK)
IRS Form 1040NR:
Note it identifies "U.S. nationals" as "nonresident aliens"!
IRS Form W-8BEN, Form #04.202 (OFFSITE LINK.
form)-how to fill out
this VERY important form
Definition from IRS Publication 519: Tax Guide for Aliens,
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
In addition to invoking the District Court's jurisdiction under
§ 2241, the Al Odah petitioners' complaint invoked the court's
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”
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’ ”
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
protection of their rights”). And
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.
8 CFR 316.5(c)(2): Residence in the
[Code of Federal Regulations]
[Title 8, Volume 1]
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
PART 316_GENERAL REQUIREMENTS FOR NATURALIZATION--Table
Sec. 316.5 Residence in the United States.
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.
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
- 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
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.
fact to consider when you fill out your
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
So naming “individuals” as “persons” liable for tax in
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:
"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
The term alien individual means an individual who
is not a citizen or a national of the United States. See
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
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
Investigating this matter of the definition of
“person” further, we find that there is a dead pointer
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
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
TITLE 26--INTERNAL REVENUE
Additions to the Tax and Additional Amounts--Table of Contents
Sec. 301.6671-1 Rules for application of assessable
(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
- 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
- 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
“…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):
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.