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on foreign source income, if the individual is neither a U.S.
citizen nor a U.S. resident. See sec. 7701(b)(1)(B). An alien
individual is treated as a U.S. resident for any calendar year if at
any time during the year that individual: (1) Is a lawful U.S.
permanent resident (the green card test); (2) meets the substantial
presence test; or (3) makes an election to be treated as a lawful
U.S. resident. See sec. 7701(b)(1)(A); sec. 301.7701(b)-1(b),
Proced. & Admin. Regs.
There is no evidence in the record that petitioner was a lawful
U.S. permanent resident or that he made an election to be treated as
a resident pursuant to section 301.7701(b)-4(c)(3)(v), Proced. &
Admin. Regs. Accordingly, petitioner is considered a resident alien
only if he meets the section 7701(b)(3)(A) substantial presence
test.
The substantial presence test is an objective test: an alien
individual is treated as a U.S. resident alien with respect to any
year in which the alien is present in the United States on at least
31 days during the current calendar year and for at least 183 days
during the current year and the 2 preceding calendar years,
calculated pursuant to a weighted formula.1 See sec. 7701(b)(3)(A).
1 Pursuant to sec. 7701(b)(3)(A), (1) each day of
presence in the current year is counted as a full day, (2) each
day of presence in the first preceding year is counted as one-
third of a day, and (3) each day of presence in the second
preceding year is counted as one-sixth of a day. See also sec.
301.7701(b)-1(c)(1), Proced. & Admin. Regs. In sum, the
applicable multipliers are:
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