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)).
SEDM Disclaimer, Section 4: Meaning of Words, Item 4.25, ""Non-Person" or "non-resiident non-person"
The term "non-person" or "non-resident non-person" (Form #05.020) as used on this site we define to be a human who is all of the following:
- Not domiciled on federal territory and not representing a corporate or governmental office that is so domiciled under Federal Rule of Civil Procedure 17.
- Not engaged in a public office within any government. This includes the civil office of "person", "individual", "citizen", or "resident". See Form #05.037 and Form #05.042 for court-admissible proof that statutory "persons", "individuals", "citizens", and "residents" are public offices.
- Not "purposefully or consensually availing themself" of commerce with any government. Therefore, they do not waive sovereign immunity under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. Chapter 97.
- Owes no CIVIL obligations to any government or any STATUTORY "citizen" or STATUTORY "resident", as "obligations" are described in California Civil Code Section 1428. This means they are not party to any contracts or compacts and have injured NO ONE as injury is defined NOT by statute, but by the common law. See Form #12.040 for further details on the definition of "obligations". Because they owe no civil obligations, the definition of "justice" REQUIRES that they MUST be left alone by the government. See Form #05.050 for a description of "justice".
- Waives any and all privileges and immunities of any civil status and all rights or "entitlements" to receive "benefits" or "civil services" from any government. It is a maxim of law that REAL de jure governments (Form #05.043) MUST give you the right to not receive or be eligible to receive "benefits" of any kind. See Form #05.040 for a description of the SCAM of abusing "benefits" to destroy sovereignty. The reason is because they MUST guarantee your right to be self-governing and self-supporting:
Invito beneficium non datur.
No one is obliged to accept a benefit against his consent. Dig. 50, 17, 69. But if he does not dissent he will be considered as assenting. Vide Assent.
Potest quis renunciare pro se, et suis, juri quod pro se introductum est.
A man may relinquish, for himself and his heirs, a right which was introduced for his own benefit. See 1 Bouv. Inst. n. 83.
Quilibet potest renunciare juri pro se inducto.
Any one may renounce a law introduced for his own benefit. To this rule there are some exceptions. See 1 Bouv. Inst. n. 83.
[Bouvier’s Maxims of Law, 1856;
- For the purposes of citizenship on government forms:
Does NOT identify as a STATUTORY "citizen" (8 U.S.C. §1401 and 26 C.F.R. §1.1-1(c)), "resident" (alien under 26 U.S.C. §7701(b)(1)(A)), "U.S. citizen" (not defined in any statute), "U.S. resident" (not defined in any statute), or "U.S. person" (26 U.S.C. §7701(a)(30)).
Identifies themself as a "national" per 8 U.S.C. §1101(a)(21) and per common law by virtue of birth or naturalization within the CONSTITUTIONAL "United States***".
- Earnings originate from outside:
7.1. The STATUTORY "United States**" as defined in 26 U.S.C. §7701(a)(9) and (a)(10) (federal zone) and
7.2. The U.S. government federal corporation as a privileged legal fiction.
Thus, their earnings are not includible in "gross income" under 26 U.S.C. §871 and are a "foreign estate" under 26 U.S.C. §7701(a)(31). See 26 C.F.R. §1.872-2(f) for proof.
- Does not and cannot earn STATUTORY "wages" as defined in 26 U.S.C. §3401(a) for services performed outside the STATUTORY "United States**" as defined in 26 U.S.C. §7701(a)(9) and (a)(10) (federal zone) and the CORPORATION "United States" as a legal fiction. Not subject to "wage" withholding of any kind for such services per:
8.1. 26 C.F.R. §31.3401(a)(6)-1(b) in the case of income tax.
8.2. 26 C.F.R. §31.3121(b)-3(c)(1) in the case of Social Security.
- Expressly exempt from income tax reporting under:
26 C.F.R. §1.1441-1(b)(5)(i).
9.2. 26 C.F.R. §1.1441-1(e)(1)(ii)(A)(1).
9.3. 26 C.F.R. §1.6041-4(a)(1).
- Exempt from backup withholding because earnings are not reportable by 26 U.S.C. §3406. Only "reportable payments" are subject to such withholding.
- Because they are exempt from income tax reporting and therefore withholding, they have no "taxable income".
Only reportable income is taxable.
There is NO WAY provided within the Internal Revenue Code to make earnings not connected to a statutory "trade or business"/public office (Form #05.001) under 26 U.S.C. §6041 reportable.
The only way to make earnings of a nonresident alien not engaged in the "trade or business" franchise taxable under 26 U.S.C. §871(a) is therefore only when the PAYOR is lawfully engaged in a "trade or business" but the PAYEE is not. This situation would have to involve the U.S. government ONLY and not private parties in the states of the Union. The information returns would have to be a Form 1042s. It is a crime under 18 U.S.C. §912 for a private party to occupy a public office or to impersonate a public office, and Congress cannot establish public offices within the exclusive jurisdiction of the states of the Union to tax them, according to the License Tax Cases, 72 U.S. 462, 18 L.Ed. 497, 68 S.Ct. 331 (1866).
- Continue to be a "national of the United States*" (Form #05.006) and not lose their CONSTITUTIONAL citizenship while filing form 1040NR. See 26 U.S.C. §873(b)(3). They do NOT need to "expatriate" their nationality to file as a "nonresident alien" and will not satisfy the conditions in 26 U.S.C. §877 (exptriation to avoid tax). Expatriation is loss of NATIONALITY, and NOT loss of STATUTORY "citizen' status under 8 U.S.C. §1401.
- If they submit a Form W-8 to control withholding and revoke Form W-4, then they:
submit SSA Form 7008 to correct their SSA earnings to zero them out. See SEDM Form #06.042.
13.2. Can use IRS
Form 843 to request a full refund or abatement of all FICA and Medicare taxes withheld if the employer or business associate continues to file W-2 forms or withhold against your wishes. See SEDM Form #06.044.
- Are eligible to replace the SSN with a TEMPORARY International Taxpayer Identification Number (ITIN) that expires AUTOMATICALLY every year and is therefore NOT permanent and changes. If you previously applied for an SSN and were ineligible to participate, you can terminate the SSN and replace it with the ITIN. If you can't prove you were ineligible for Social Security, then they will not allow you to replace the SSN with an ITIN. See:
Form W-7 for the application.
14.2. Understanding Your IRS Individual Taxpayer Identification Number, Publication
14.3. Why You Aren't Eligible for Social Security, Form #06.002 for proof that no one within the exclusive jurisdiction of a constitutional state of the
Union is eligible for Social Security.
- Must file the paper version of IRS Form 1040NR, because there are no electronic online providers that automate the preparation of the form or allow you to attach the forms necessary to submit a complete and accurate return that correctly reflects your status. This is in part because the IRS doesn't want to make it easy or convenient to leave their slave plantation.
- Is a SUBSET of "nonresident aliens" who are not required to have or to use Social Security Numbers (SSNs) or Taxpayer Identification Numbers (TINs) in connection with tax withholding or reporting. They are expressly exempted from this requirement by:
31 C.F.R. §1020.410(b)(3)(x).
16.2.. 26 C.F.R. §301.6109-1(b)(2).
16.3.. W-8BEN Inst. p. 1,2,4,5 (Cat 25576H).
16.4.. Instructions for the Requesters of Forms W-8BEN, W-8BEN-E, W-8ECI, W-8EXP, and W-8IMY, p. 1,2,6 (Cat 26698G).
16.5.. Pub 515 Inst. p. 7 (Cat. No 16029L).
More on SSNs and TINs at:
About SSNs and TINs on Government Forms and Correspondence, Form #05.012
About SSNs and TINs on Government Forms and Correspondence, Form #04.104
They are "non-persons" BY VIRTUE of not benefitting from any civil statutory privilege and therefore being "PRIVATE". By "privilege", we mean ANY of the things described in 5 U.S.C. 553(a)(2):
5 U.S. Code § 553 - Rule making
(a)This section applies, according to the provisions thereof, except to the extent that there is involved—
[. . .]
(2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.
The above items all have in common that they are PROPERTY coming under Article 4, Section 3, Clause 2 of the Constitution that is loaned or possessed or granted temporarily to a human being with legal strings attached. Thus, Congress has direct legislative jurisdiction not only over the property itself, but over all those who USE, BENEFIT FROM, or HAVE such property physically in their custody or within their temporary control. We remind the reader that Congress enjoys control over their own property NO MATTER WHERE it physically is, including states of the Union, and that it is the MAIN source of their legislative jurisdiction within the exclusive jurisdiction of Constitutional states of the Union!:
United States Constitution
Article 4, Section 3, Clause 2
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.
“The Constitution permits Congress to dispose of and to make all needful rules and regulations respecting the territory or other property belonging to the United States. This power applies as well to territory belonging to the United States within the States, as beyond them. It comprehends all the public domain, wherever it may be. The argument is, that the power to make ‘ALL needful rules and regulations‘ ‘is a power of legislation,’ ‘a full legislative power;’ ‘that it includes all subjects of legislation in the territory,‘ and is without any limitations, except the positive prohibitions which affect all the powers of Congress. Congress may then regulate or prohibit slavery upon the public domain within the new States, and such a prohibition would permanently affect the capacity of a slave, whose master might carry him to it. And why not? Because no power has been conferred on Congress. This is a conclusion universally admitted. But the power to ‘make rules and regulations respecting the territory‘ is not restrained by State lines, nor are there any constitutional prohibitions upon its exercise in the domain of the United States within the States; and whatever rules and regulations respecting territory Congress may constitutionally make are supreme, and are not dependent on the situs of ‘the territory.‘”
[Dred Scott v. Sandford, 60 U.S. 393, 509-510 (1856)]
By property, we mean all the things listed in 5 U.S.C. §553(a)(2) such as SSNs (property of the government per 20 C.F.R. §422.103(d)), contracts (which are property), physical property, chattel property, "benefits", "offices", civil statuses, privileges, civil statutory remedies, etc. A "public office" is, after all, legally defined as someone in charge of the PROPERTY of the "public":
“Public office. The right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government for the benefit of the public. Walker v. Rich, 79 Cal.App. 139, 249 P. 56, 58. An agency for the state, the duties of which involve in their performance the exercise of some portion of the sovereign power, either great or small. Yaselli v. Goff, C.C.A., 12 F.2d. 396, 403, 56 A.L.R. 1239; Lacey v. State, 13 Ala.App. 212, 68 So. 706, 710; Curtin v. State, 61 Cal.App. 377, 214 P. 1030, 1035; Shelmadine v. City of Elkhart, 75 Ind.App. 493, 129 N.E. 878. State ex rel. Colorado River Commission v. Frohmiller, 46 Ariz. 413, 52 P.2d. 483, 486. Where, by virtue of law, a person is clothed, not as an incidental or transient authority, but for such time as de- notes duration and continuance, with Independent power to control the property of the public, or with public functions to be exercised in the supposed interest of the people, the service to be compensated by a stated yearly salary, and the occupant having a designation or title, the position so created is a public office. State v. Brennan, 49 Ohio.St. 33, 29 N.E. 593.
[Black’s Law Dictionary, Fourth Edition, p. 1235]
Even the public office ITSELF is property of the national government, so those claiming any civil statutory status are claiming a civil office within the government. It is otherwise unconstitutional to regulate private property or private rights. The only way you can surrender your private status is voluntarily adopt an office or civil status or the "benefits", "rights", or privileges attaching to said office or status, as we prove in:
- Civil Status (Important)-SEDM
- Your Exclusive Right to Declare or Establish Your Civil Status, Form #13.008
- Why Statutory Civil Law is Law for Government and Not Private Persons, Form #05.037
It is custody or "benefit" or control of government/public property that grants government control over those handling or using such property:
“The State in such cases exercises no greater right than an individual may exercise over the use of his own property when leased or loaned to others. The conditions upon which the privilege shall be enjoyed being stated or implied in the legislation authorizing its grant, no right is, of course, impaired by their enforcement. The recipient of the privilege, in effect, stipulates to comply with the conditions. It matters not how limited the privilege conferred, its acceptance implies an assent to the regulation of its use and the compensation for it.”
[Munn v. Illinois, 94 U.S. 113 (1876) ]
“The rich rules over the poor,
And the borrower is servant to the lender.”
[Prov. 22:7, Bible, NKJV]
Curses of Disobedience [to God’s Laws]
“The alien [Washington, D.C. is legislatively “alien” in relation to states of the Union] who is among you shall rise higher and higher above you, and you shall come down lower and lower [malicious destruction of EQUAL PROTECTION and EQUAL TREATMENT by abusing FRANCHISES]. He shall lend to you [Federal Reserve counterfeiting franchise], but you shall not lend to him; he shall be the head, and you shall be the tail.
“Moreover all these curses shall come upon you and pursue and overtake you, until you are destroyed, because you did not obey the voice of the Lord your God, to keep His commandments and His statutes which He commanded you. And they shall be upon you for a sign and a wonder, and on your descendants forever.
“Because you did not serve [ONLY] the Lord your God with joy and gladness of heart, for the abundance of everything, therefore you shall serve your [covetous thieving lawyer] enemies, whom the Lord will send against you, in hunger, in thirst, in nakedness, and in need of everything; and He will put a yoke of iron [franchise codes] on your neck until He has destroyed you. The Lord will bring a nation against you from afar [the District of CRIMINALS], from the end of the earth, as swift as the eagle flies [the American Eagle], a nation whose language [LEGALESE] you will not understand, a nation of fierce [coercive and fascist] countenance, which does not respect the elderly [assassinates them by denying them healthcare through bureaucratic delays on an Obamacare waiting list] nor show favor to the young [destroying their ability to learn in the public FOOL system]. And they shall eat the increase of your livestock and the produce of your land [with “trade or business” franchise taxes], until you [and all your property] are destroyed [or STOLEN/CONFISCATED]; they shall not leave you grain or new wine or oil, or the increase of your cattle or the offspring of your flocks, until they have destroyed you.
[Deut. 28:43-51, Bible, NKJV]
You cannot MIX or comingle PRIVATE property with PUBLIC property without converting the PRIVATE property ownership from absolute to qualified. You must keep them SEPARATE at all times and it is the MAIN and MOST IMPORTANT role of government to maintain that separation. Governments, after all, are created ONLY to protect private property and the FIRST step in that protection is to protect PRIVATE property from being converted to PUBLIC property. For proof, see:
Separation Between Public and Private Course, Form #12.025
What Congress is doing is abusing its own property to in effect create "de facto public offices" within the government, in violation of 4 U.S.C. §72, as is proven in:
Challenge to Income Tax Enforcement Authority Within Constitutional States of the Union, Form #05.052
This is how we describe the reason why people should avoid privileges and thereby avoid possession, custody, use, or "benefit" of government/public property on the opening page of our site:
"People of all races, genders, political beliefs, sexual orientations, and nearly all religions are welcome here. All are treated equally under REAL “law”. The only way to remain truly free and equal under the civil law is to avoid seeking government civil services, benefits, property, special or civil status, exemptions, privileges, or special treatment. All such pursuits of government services or property require individual and lawful consent to a franchise and the surrender of inalienable constitutional rights AND EQUALITY in the process, and should therefore be AVOIDED. The rights and equality given up are the “cost” of procuring the “benefit” or property from the government, in fact. Nothing in life is truly “free”. Anyone who claims that such “benefits” or property should be free and cost them nothing is a thief who wants to use the government as a means to STEAL on his or her behalf. All just rights spring from responsibilities/obligations under the laws of a higher power. If that higher power is God, you can be truly and objectively free. If it is government, you are guaranteed to be a slave because they can lawfully set the cost of their property as high as they want as a Merchant under the U.C.C. If you want it really bad from people with a monopoly, then you will get it REALLY bad. Bend over. There are NO constitutional limits on the price government can charge for their monopoly services or property. Those who want no responsibilities can have no real/PRIVATE rights, but only privileges dispensed to wards of the state which are disguised to LOOK like unalienable rights. Obligations and rights are two sides of the same coin, just like self-ownership and personal responsibility. For the biblical version of this paragraph, read 1 Sam. 8:10-22. For the reason God answered Samuel by telling him to allow the people to have a king, read Deut. 28:43-51, which is God’s curse upon those who allow a king above them. Click Here for a detailed description of the legal, moral, and spiritual consequences of violating this paragraph."
[SEDM Opening Page; http://sedm.org]
"Non-resident Non-Person" or "non-person" are synonymous with "transient foreigner", "in transitu", and "stateless" (in relation to the national government). We invented this term. The term does not appear in federal statutes because statutes cannot even define things or people who are not subject to them and therefore foreign and sovereign. The term "non-individual" used on this site is equivalent to and a synonym for "non-person" on this site, even though STATUTORY "individuals" are a SUBSET of "persons" within the Internal Revenue Code. Likewise, the term "private human" is also synonymous with "non-person". Hence, a "non-person":
- Retains their sovereign immunity. They do not waive it under the Foreign Sovereign Immunities Act, 28 U.S.C. Chapter 97 or the longarm statutes of the state they occupy.
- Is protected by the United States Constitution and not federal statutory civil law.
- May not have federal statutory civil law cited against them. If they were, a violation of Federal Rule of Civil Procedure 17 and a constitutional tort would result if they were physically present on land protected by the United States Constitution within the exterior limits of states of the Union.
- Is on an equal footing with the United States government in court. "Persons" would be on an UNEQUAL, INFERIOR, and subservient level if they were subject to federal territorial law.
Don't expect vain public servants to willingly admit that there is such a thing as a human "non-person" who satisfies the above criteria because it would undermine their systematic and treasonous plunder and enslavement of people they are supposed to be protecting. However, the U.S. Supreme Court has held that the "right to be left alone" is the purpose of the constitution. Olmstead v. United States, 277 U.S. 438. A so-called "government" that refuses to leave you alone or respect or protect your sovereignty and equality in relation to them is no government at all and has violated the purpose of its creation described in the Declaration of Independence. Furthermore, anyone from the national or state government who refuses to enforce this status, or who imputes or enforces any status OTHER than this status under any law system other than the common law is:
- "purposefully availing themselves" of commerce within OUR jurisdiction.
- STEALING, where the thing being STOLEN are the public rights associated with the statutory civil "status" they are presuming we have but never expressly consented to have.
- Engaging in criminal identity theft, because the civil status is associated with a domicile in a place we are not physically in and do not consent to a civil domicile in.
- Consenting to our Member Agreement.
- Waiving official, judicial, and sovereign immunity.
- Acting in a private and personal capacity beyond the statutory jurisdiction of their government employer.
- Compelling us to contract with the state under the civil statutory "social compact".
- Interfering with our First Amendment right to freely and civilly DISASSOCIATE with the state.
- Engaged in a constitutional tort.
If freedom and self-ownership or "ownership" in general means anything at all, it means the right to deny any and all others, including governments, the ability to use or benefit in any way from our body, our exclusively owned private property, and our labor.
“We have repeatedly held that, as to property reserved by its owner for private use, "the right to exclude [others is] `one of the most essential sticks in the bundle of rights that are commonly characterized as property.' " Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433 (1982), quoting Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979). “
[Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987)]
“In this case, we hold that the "right to exclude," so universally held to be a fundamental element of the property right, falls within this category of interests that the Government cannot take without compensation.”
[Kaiser Aetna v. United States, 444 U.S. 164 (1979)]
 See, e. g., United States v. Pueblo of San Ildefonso, 206 Ct.Cl. 649, 669-670, 513 F.2d. 1383, 1394 (1975); United States v. Lutz, 295 F.2d. 736, 740 (CA5 1961). As stated by Mr. Justice Brandeis, "[a]n essential element of individual property is the legal right to exclude others from enjoying it." International News Service v. Associated Press, 248 U.S. 215, 250 (1918) (dissenting opinion).
[SEDM Disclaimer Page, Section 4: Meaning of Words, Item 4.25, SEDM Disclaimer, Section 4: Meaning of Words, Item 4.25, ""Non-Person" or "non-resiident non-person"; https://sedm.org/disclaimer.htm]
Flores v. Government of Guam, 444 F.2d 284, 288 n.7 (9th Cir. 1971)
“Revenue Ruling 56 provides that Guamanians who became naturalized United States citizens collectively under the Organic Act (1950) and are not residents of the United States, shall be taxed by the United States as "non-resident aliens." The obvious purpose for this ruling was to "reconvey" to Guam its former citizenry, who had become naturalized citizens of the United States under the Organic Act, to serve as the tax base for the new Guam territorial income tax laws. As "aliens" of the United States, these persons would be subject to taxation by the United States only on income earned within the United States. [ 26 U.S.C. § 872]. Guam could then tax such persons as "citizens" on all income from whatever source derived, giving a credit for taxes paid to the United States on income earned therein ["mirroring" 26 U.S.C. § 61(a) and 901].”
[Flores v. Government of Guam, 444 F.2d. 284, 288 n.7 (9th Cir. 1971)]
[EDITORIAL: Even STATUTORY "U.S. citizens" under 8 U.S.C. §1401 can be "nonresident aliens"! Puerto Ricans fit in EXACTLY the same category as Guamanians. See 26 U.S.C. §2209. This also proves that "United States" as used in the Internal Revenue Code DOES NOT mean federal territories or possessions and includes only the District of Columba GEOGRAPHICALLY. HOWEVER, if you VOLUNTEER by filing the WRONG tax return form, the 1040 by mistake, then "United States" BECOMES the GOVERNMENT CORPORATION INSTEAD of the geography for all practical purposes.]
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.
"It is clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise. United States ex rel. Turner v. Williams, 194 U. S. 279, 292 (1904); United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 542 (1950); Galvan v. Press, 347 U. S. 522, 530-532 (1954); see Harisiades v. Shaughnessy, 342 U. S. 580, 592 (1952)."
[Kleindienst v. Mandel, 408 U.S.
A. Standing of a nonresident alien to assert constitutional claims.
The district court dismissed Cardenas' constitutional claims, reasoning:
This court has no basis for attempting to apply constitutional standards on behalf of a nonresident alien with respect to a res which is not subject to the court's control .... The res at issue here is the Swiss account in Switzerland. The court can take no action that would affect the status of the frozen accounts belonging to the plaintiff and damages are precluded absent compliance with the Federal Tort Claims Act.
Cardenas v. Smith, 555 F.Supp. at 540. At first blush, the district court's analysis could be interpreted as an application of the "local action" doctrine. Under that judge-made doctrine, "`local actions' must be brought in the district where the res that is the subject matter of the action is located." See C. WRIGHT, FEDERAL COURTS § 42, at 249 (4th ed. 1983). Wright notes that although the local action doctrine is usually discussed as a matter of venue, some courts have treated this concept as running to the court's jurisdiction. In any event, had the district court intended the local action concept to apply, it first would have had to consider whether the action here was local or transitory. Because it did not so consider, we must conclude that this doctrine was not the basis for its decision.
Instead, we read the court's opinion as holding that the plaintiff lacked standing to raise the tendered constitutional claims. This interpretation of the district court's holding is buttressed by the fact that the court observed that it could not redress the alleged injury, an observation that suggests that standing was the focal point of its analysis. Moreover, the district court dismissed the complaint, the proper result if a plaintiff lacks standing.
Before a federal court is empowered to conclude that a party has standing, that party must satisfy the constitutional requirements that devolve from the Article III rule that federal courts decide only "cases or controversies." The essential requirements of constitutional standing are "`some actual or threatened injury [suffered] as a result of the putatively illegal 913*913 conduct of the defendant,' and an injury that `fairly can be traced to the challenged action' and `is likely to be redressed by a favorable decision.'" Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (citations omitted) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1979)). The injury in fact requirement assures that the plaintiff has a personal stake in the outcome of the controversy. Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975).
Ms. Cardenas clearly suffered an injury in fact. Having received no notice, she found herself without access to her property, namely, that money which she allegedly had deposited in her Swiss bank account. It is beyond cavil that the deprivation of one's property is a sufficient injury to satisfy the injury in fact requirement.
That Cardenas is a foreign nonresident alien does not alter the fact that she has suffered a concrete injury in fact sufficient to ground Article III standing. For purposes of Article III standing, Cardenas' status as a nonresident alien does not obviate the existence of her injury; it is the injury and not the party that determines Article III standing. See generally Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Whether Cardenas is Colombian or American, she still has a personal stake that would be affected by a resolution of the controversy. The recent Supreme Court decision in Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983), supports this conclusion. In Verlinden, a case under the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. § 1330(a), a Dutch Corporation sued the Central Bank of Nigeria in federal court and alleged that the latter had breached a letter of credit. One issue was the constitutionality of the FSIA's grant of jurisdiction to federal courts to resolve disputes between foreign plaintiffs and foreign states. The Court found FSIA to be constitutional. Implicit in that conclusion is the proposition that Article III permits foreign plaintiffs who have suffered a concrete injury to sue in United States courts under at least some circumstances. Earlier cases of this circuit have similarly held. See, e.g., Constructores Civiles de Centroamerica, S.A. v. Hannah, 459 F.2d 1183 (D.C.Cir.1972); Kukatush Mining Corp. v. SEC, 309 F.2d 647 (D.C.Cir.1962).
Likewise, the location of the injury does not affect Cardenas' satisfaction of the Article III standing requirement. As an initial matter, we note that because the district court prematurely truncated discovery, we are unable to ascertain whether the offending injury occurred abroad or on American soil. For example, although the seized accounts were located in Switzerland, if Cardenas could demonstrate that she was the victim of a conspiracy within the Justice Department, at least part of the injury arguably would have occurred in this country. Assuming, however, that the injury occurred abroad, Cardenas could still satisfy the Article III standing requirements. An injury endured abroad is not less of an injury for Article III standing purposes because it happened on foreign soil. See, e.g., Toscanino v. United States, 500 F.2d 267, reh. denied, 504 F.2d 1380 (2d Cir.1974). See generally Reid v. Covert, 354 U.S. 1, 6, 77 S.Ct. 1222, 1225, 1 L.Ed.2d 1148 (1956) (plurality) (opinion of Black, J.) (government actions against citizens abroad); Powell v. Zuckert, 366 F.2d 634 (D.C.Cir.1966) (same).
We therefore conclude that Cardenas has satisfied the Article III injury in fact requirement. That conclusion, however, does not end our Article III standing analysis. The injury suffered must be one that can fairly be traced to the government's action and one that is "likely to be redressed by a favorable decision." Valley Forge Christian College, 454 U.S. at 472, 102 S.Ct. at 758. See Common Cause v. Department of Energy, 702 F.2d 245, 250 914*914 (D.C.Cir.1983). In the present litigation, only the redressible injury component is in controversy. This component, however, is fatal to that part of Cardenas' complaint that seeks injunctive and declaratory relief.
There is little likelihood that the injunctive and declaratory relief Cardenas seeks would redress her injury since such relief is unlikely to result in the release of her accounts or otherwise compensate her for injuries endured. The Treaty provides no mechanism by which the United States Attorney General can order the Swiss to release the accounts or to reverse actions already taken. Indeed, the Treaty's entire scheme is directed at requests for, and the sharing of, information, documents, and witnesses. We certainly are without power to enforce an order issued directly against the Swiss government. Moreover, we are highly doubtful that a request to release the account, issued by the Attorney General pursuant to an order by an American court, would have any impact on litigation currently pending in the Swiss courts. In that vein, we note that the Swiss government has much at stake in that litigation, for if Cardenas is unsuccessful the money escheats to the Swiss.
A case which presented issues similar to the present case is Greater Tampa Chamber of Commerce v. Goldschmidt, 627 F.2d 258 (D.C.Cir.1980), where a plaintiff challenged an Executive Agreement on air travel between the United States and the United Kingdom. This court found that the plaintiff lacked standing because there was not "a substantial likelihood that the court could redress the injury." The relief the plaintiff there requested could be obtained only by the consent of the British government. Id. at 261; see also Winpisinger v. Watson, 628 F.2d 133, 139 n. 29 (D.C.Cir.), cert. denied, 446 U.S. 929, 100 S.Ct. 1867, 64 L.Ed.2d 282 (1980). Similarly, the relief in the present case could be obtained only through the consent of the Swiss government. Accordingly, Cardenas lacks standing as to her claims for injunctive and declaratory relief.
Cardenas, however, also seeks compensatory damages from the American officials involved. A damage claim, by definition, presents a means to redress an injury. Although the complaint was imprecisely drawn — Cardenas named the Attorney General in his official capacity as the defendant — appellant's counsel in his brief and at oral argument indicated that the underlying theory for the damages claim was that articulated in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See also Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979)(recognizing a cause of action for damages from federal officials who violate the Fifth Amendment). A Bivens action, if successful, could result in the assessment of damages against the involved federal officials. Because these damages would be recompense for injuries suffered, the court thereby could redress Cardenas' injuries. In light of the liberal rules of federal procedure, the district court, on remand, should allow Cardenas the opportunity to amend her complaint, so as to allege properly a Bivens-type cause of action. See C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1489, at 449 (1971) (appellate court can remand with directions to allow the appellant to amend pleadings).
We conclude that Cardenas has satisfied the Article III standing requirements. In addition to the constitutional limitations, however, the federal courts also have developed a set of prudential principles to guide standing decisions. A party must assert his own legal rights, and must assert more than "`generalized grievances,' pervasively shared and most appropriately addressed in the representative branches." Valley Forge Christian College, 454 U.S. at 474-75, 102 S.Ct. at 759-60 (quoting Warth v. Seldin, 422 U.S. 490, 499-500, 95 S.Ct. 2197, 2205-06, 45 L.Ed.2d 343 (1975)). Moreover, "the plaintiff's complaint [must] fall within the `zone of interests to be protected or regulated by the statute or constitutional guarantee in question.'" Id. 454 U.S. at 475, 102 S.Ct. at 760 915*915 (quoting Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970)).
This last element in the prudential standing inquiry — and the only element here at issue — has posed problems for courts and commentators. The zone of interests test has met with less than universal affection, and at least one commentator has observed that the test is "sometimes the law and usually is not." K. DAVIS, ADMINISTRATIVE LAW TREATISE ¶ 24:17, at 279 (2d ed. 1983). Although this circuit continues to adhere to that test, we have noted the difficulties involved in its application. See, e.g., American Friends Service Committee v. Webster, 720 F.2d 29 (D.C.Cir.1983). As we here attempt to do so, our inquiry is guided by the following principle: "The would-be plaintiff's interest in the relevant law is ascertained by injury in fact; the law's interest in the would-be plaintiff is determined by the `zone of interests' test." Capital Legal Foundation v. Commodity Credit Corporation, 711 F.2d 253, 259 (D.C.Cir.1983).
We thus turn to the zone of interests test to determine whether Cardenas' interest is one protected by the Fourth or Fifth Amendments. See, e.g., Boston Stock Exchange v. State Tax Comm'n, 429 U.S. 318, 320 n. 3, 97 S.Ct. 599, 602 n. 3, 50 L.Ed.2d 514 (1977) (zone of interests test applied to suit brought under the commerce clause). Cardenas here asserts a right under these Amendments to be free from unreasonable interference by American officials with property that is owned by a nonresident alien and that is situated on foreign soil. To apply the zone test, we must ask whether this interest enjoys the protection of the Fourth and Fifth Amendments. We note that this inquiry tends to meld into the question of whether Cardenas has a cause of action to enforce these Amendments. See Bell v. Hood,327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). Whether the question is framed as one of standing or as whether Cardenas has a cause of action, the essential inquiry is whether the plaintiffs ought to be able to invoke the constitutional guarantees in question. See Nichol, Standing on the Constitution: The Supreme Court and Valley Forge, 61 N.C.L. REV. 798 (1983); Currie, Misunderstanding Standing, 1981 SUP.CT.REV. 41, 43 ("Whether the answer is labeled `standing' or `cause of action,' the question is whether the ... Constitution implicitly authorizes the plaintiff to sue.").
It is beyond peradventure that a foreign nonresident, non-hostile alien may, under some circumstances, enjoy the benefits of certain constitutional limitations imposed on United States actions. In more and more circumstances, federal courts have recognized the standing of nonresident aliens to invoke the protections afforded by the United States Constitution. For example, the Ninth Circuit recently held that residents of Australia have standing to raise objections under the United States Constitution to the limitations on liability imposed by the Warsaw convention. In re Aircrash in Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 1308 n. 6 (9th Cir.1982). Similarly, in United States v. Toscanino, 500 F.2d 267,reh. denied, 504 F.2d 1380 (2d Cir.1974), the Second Circuit held that an Italian citizen enjoyed constitutional protections when American agents kidnapped him from Uruguay. See also United States v. Demanett, 629 F.2d 862, 866 (3d Cir.1980) (court assumes that both American citizens and Colombian nationals aboard a vessel on the high seas protected by the Fourth Amendment), cert. denied, 450 U.S. 910, 101 S.Ct. 1347, 67 L.Ed.2d 333 (1981); United States v. Cadena, 585 F.2d 1252, 1262 (5th Cir.1978) (Fourth Amendment's protections can extend to aliens); Porter v. United States, 496 F.2d 583, 591, 204 Ct.Cl. 355, (1974) ("The just compensation clause of the Fifth Amendment has, in fact, been applied to takings of property outside the United States, even in the absence of congressional extension of the Constitution to such foreign soil."), cert. denied, 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 761 (1975); United States v. Tiede, 86 F.R.D. 227 (United States Court for Berlin 1979) (even abroad, conduct of American officials must be measured by 916*916 Constitution); Berlin Democratic Club v. Rumsfeld, 410 F.Supp. 144 (D.D.C.1976) (nonresident alien has standing in certain circumstances). Deportation and immigration cases stand on a special footing. See Landon v. Plasencia, 459 U.S. 21, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) ("This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude is a sovereign prerogative.") (emphasis added). Likewise, cases that address the rights of aliens during periods of war involve considerations not present here. See Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950).
In this circuit, the analysis of the nonresident alien's standing is in a state of evolution. An early case in this development is Pauling v. McElroy (Pauling I), 278 F.2d 252 (D.C.Cir.), cert. denied, 364 U.S. 835, 81 S.Ct. 61, 5 L.Ed.2d 60 (1960). There, a group, including some non-American residents, sought to enjoin the testing of nuclear weapons. The court found that plaintiffs had not suffered an injury and accordingly concluded that they lacked standing. In a footnote, the court noted: "The nonresident aliens here plainly cannot appeal to the protection of the Constitution or laws of the United States." 278 F.2d at 254 n. 3. Although this dictum appears to be a blanket denial of the power of a nonresident alien to assert constitutional rights, read in context this statement suggests only that the foreign plaintiffs, like their American counterparts, could not succeed absent an allegation of a specific, actual injury. A subsequent analysis of Pauling I by this court comports with the limited view we take of that case. Pauling v. McNamara (Pauling II), 331 F.2d 796, 798 (D.C.Cir.), cert. denied, 377 U.S. 933, 84 S.Ct. 1336, 12 L.Ed.2d 297 (1964) (Pauling I explained as holding that national policy decisions present no judicially cognizable issues). In Kukatush Mining Corp. v. SEC, 309 F.2d 647 (D.C.Cir.1962), this court moved away from the sweeping generalities of Pauling I. In Kukatush, the case on which the district court here relied, Canadian plaintiffs alleged that the SEC had violated the Constitution and the APA. Although the court concluded that the specific plaintiffs lacked standing, it observed that a nonresident alien could have standing if the court had jurisdiction of the subject res or if the case involved "the preferred rights under immigration laws." Id. at 650. Although the present litigation involves neither situation, the court in Kukatushindicated that the situations it identified were merely exemplary rather than all-inclusive. Most importantly, the court observed that "the decisions over the years disclose a definite trend to relax the rigidities of earlier cases." Id. The "relaxation of rigidities" in the area of alien standing has continued over the years. Ten years later, in Constructores Civiles de Centroamerica, S.A. v. Hannah, 459 F.2d 1183 (D.C.Cir.1972), the issue was not standing under the Constitution but rather standing under the APA and the Foreign Assistance Act of 1961, 22 U.S.C. § 2151 et seq. (1982). Although the case thus is not directly apposite, the court's dictum is highly relevant insofar as it revealed an intent to adopt a case-by-case analytical approach to standing questions that involve nonresident aliens. And, in Sami v. United States, 617 F.2d 755, 769 (D.C.Cir.1979), this court was willing to assume without deciding that an alien could raise a constitutional challenge to American actions within the United States that led to his arrest in Germany by German officials.
It is therefore clear that this circuit and other circuits have recognized situations in which nonresident aliens can invoke the restraints imposed by the Constitution on the American government. Yet a review of the case law fails to reveal any consistent definition of those situations, or indeed, any concise definition of that group of nonresident aliens within the Constitution's protection. Our observation in Sami, is as true today as when it first was made. "The extent to which the Constitution's protections shield citizens, resident-aliens, or aliens from actions in other countries is 917*917 not clear.... Much may depend on the status of the individual complaining and the actor complained of." Sami v. United States, 617 F.2d at 773 n. 4.
Despite the lack of clarity of the law in this area, the precedents are consistent on at least one point. The universe of nonresident aliens who can invoke the Constitution is not limited to situations in which the res is subject to the court's jurisdiction. In many cases the location of the res, if any, has not been considered in the courts' standing analysis. See, e.g., In re Aircrash in Bali, Indonesia on April 22, 1974, supra; United States v. Demanett, supra; United States v. Toscanino, supra. Indeed, in this case a "res" analysis would be inappropriate since the cause of action is one for damages under a Bivens-type theory. And in Kukatush, the case upon which the district court relied, we indicated only that the presence of the res was the indicia of one category in which the alien had standing. Therefore, in treating the presence of the res as a necessary prerequisite to Cardenas' standing, the district court erred.
Nonetheless, we are not prepared today to conclude that Cardenas has standing to invoke the protection of the Constitution against actions of the American government. Given the difficulties and far-reaching consequences of a doctrine that enhances an alien's standing to put on a constitutional mantle, we are reluctant to apply such a rationale to a case where the complaint is broadly drawn, the facts remain obscure, and where, in any event, such a conclusion may be unnecessary to the ultimate disposition of the plaintiff's claims.
The predicate to Cardenas' reliance on the protections afforded by the Constitution is, of course, action by the United States government or its agent, the Attorney General. The shield of the Fourth and Fifth Amendments does not protect an individual from actions taken exclusively by foreign governments. Accordingly, if the Attorney General took no action that relates to Amparo Cardenas — for example, if, as the government avers, the request to the Swiss only involved appellant's brother and if the American government learned of Amparo Cardenas only upon the receipt of the Swiss documents — then Cardenas' interests are not protected by either the Fourth or Fifth Amendments. Whatever harm Cardenas suffered may entirely be a function of Swiss actions. Claims for relief from such action cannot be addressed to an American court. Because the district court precipitously truncated appellant's discovery attempts, we are without any evidence regarding this critical threshold element. We thus are without any facts to guide our standing analysis. Accordingly, we reverse and remand.
Upon remand, the district court initially should allow discovery to the extent necessary to reveal the substance of the Attorney General's request to the Swiss. If the district court becomes satisfied that, as the government alleges, the communication only identified appellant's brother, and/or only sought informationfrom the Swiss, then the case may be at an end. If, on the other hand, the district court finds that the communication implicated Cardenas herself, then the court should consider whether additional discovery is necessary so as to enable it to evaluate whether Cardenas is in that group of aliens who are the intended beneficiaries of the relevant constitutional guarantees. We intimate no opinion, however, as to whether, upon a more complete development of the facts, Cardenas will be able to establish standing.
[Cardenas v. Smith, 733 F.2d. 909 (1984)]
The resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a "declared war" exists. Courts will entertain his plea for freedom from Executive custody only to ascertain the existence of a state of war and whether he is an alien enemy and so subject to the Alien Enemy Act. Once these jurisdictional elements have been determined, courts will not inquire into any other issue as to his internment. Ludecke v. Watkins, 335 U. S. 160.
776*776 The standing of the enemy alien to maintain any action in the courts of the United States has been often challenged and sometimes denied. The general statement was early made on combined authority of Kent and Story "That they have no power to sue in the public courts of the enemy nation." Griswold v.Waddington, 16 Johns. (N. Y.) 438, 477. Our rule of generous access to the resident enemy alien was first laid down by Chancellor Kent in 1813, when, squarely faced with the plea that an alien enemy could not sue upon a debt contracted before the War of 1812, he reviewed the authorities to that time and broadly declared that "A lawful residence implies protection, and a capacity to sue and be sued. A contrary doctrine would be repugnant to sound policy, no less than to justice and humanity." Clarke v. Morey, 10 Johns. (N. Y.) 70,72. A unanimous Court recently clarified both the privilege of access to our courts and the limitations upon it. We said: "The ancient rule against suits by resident alien enemies has survived only so far as necessary to prevent use of the courts to accomplish a purpose which might hamper our own war efforts or give aid to the enemy. This may be taken as the sound principle of the common law today." Ex parte Kawato,317 U. S. 69, 75.
But the nonresident enemy alien, especially one who has remained in the service of the enemy, does not have even this qualified access to our courts, for he neither has comparable claims upon our institutions nor could his use of them fail to be helpful to the enemy. Our law on this subject first emerged about 1813 when the Supreme Court of the State of New York had occasion, in a series of cases, to examine the foremost authorities of the Continent and of England. It concluded the rule of the common law and the law of nations to be that alien enemies resident in the country of the enemy could not maintain an action in its courts during the period of hostilities. Bell v. Chapman, 10 Johns. (N. Y.) 183; Jackson v. Decker, 11777*777 Johns. (N. Y.) 418; Clarke v. Morey, 10 Johns. (N. Y.) 70, 74-75. This Court has recognized that rule, Caperton v. Bowyer, 14 Wall. 216, 236; Masterson v.Howard, 18 Wall. 99, 105, and followed it, Ex parte Colonna, 314 U. S. 510, and it continues to be the law throughout this country and in England.
[Johnson v. Eisentrager, 339 U.S. 763 (1950]
Rasul v. Bush, 542 U.S. 466, 124 S.Ct. 2686 (2004)
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.
[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 C.F.R. §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
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 C.F.R. § 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.