TN 6 (07-90)

GN 05010.060 Transitional Rules for Applying the Substantial Presence Test in 1985 and 1986

A. Introduction

Since IRS's definition of a resident alien was different before 1985, special rules apply to periods of presence prior to 1985 under the substantial presence test.

B. Definition

A U.S. resident for tax purposes prior to 1985 was an alien actually present in U.S. (50 States, D.C.,Guam and NMI), not as a transient or sojourner.

NOTE:  Lawful admission for permanent residence (or even lawful admission) was not necessary. However,the alien must have resided in U.S. with an intention of establishing at least a temporary home in this country.

C. Policy

1. Application of the Substantial Presence Test

  1. Alien Was Not a U.S. Resident at Close of 1984 - Apply the substantial presence test using only  presence in the U.S. after 1984.

  2. Alien Was a U.S. Resident at the Close of 1984 - Apply the substantial presence test using only  presence in the U.S. after 1983.

2. Residence Before 1985

Before 1985, an alien who lived in U.S. and had no definite intention about the length of his stay was considered a U.S. resident. However, an alien whose stay was limited by the Department of Homeland Security laws was not considered a U.S. resident.

The length and nature of his stay determined whether an individual was present in U.S. temporarily. An indefinite intention to return to another country at some time was not enough to establish his stay was temporary.

Although a temporary visit abroad did not result in a loss of U.S. resident status, an extended trip (e.g., more than 6 months) was usually not considered temporary unless there was evidence of a more or less permanent attachment to the U.S. and an intention to return and make a home in the U.S.

An alien not lawfully admitted for permanent residence was considered to lose his resident status when he left the U.S.

D. Procedure

Accept an individual's statement about whether he considered himself to be/ not to be a resident at the close of 1983/1984 when determining whether he was a U.S. resident at the close of 1983/1984.

Request evidence of his status, however, if there is any question about the validity of his statement(s).

NOTE:  Evidence of U.S. presence during the substantial presence test periods is still needed.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/0205010060
GN 05010.060 - Transitional Rules for Applying the Substantial Presence Test in 1985 and 1986 - 08/01/2008
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