- 18 -
(ii) Substantial presence test.-–Such individual meets
the substantial presence test of paragraph (3).
(iii) First year election.-–Such individual makes the
election provided in paragraph (4).
Petitioner presented no evidence to establish (i) or (iii);
therefore, the question is whether Ms. Ofori meets the
substantial presence test under (ii).
Substantial presence is defined in section 7701(b)(3) and
its accompanying regulation, section 301.7701(b)-1(c), Proced. &
Admin. Regs. In general, an individual meets the substantial
presence test if (i) such individual was present in the United
States on at least 31 days during the calendar year, and (ii) the
sum of the number of days on which such individual was present in
the United States during the current year and the 2 preceding
calendar years (when multiplied by the applicable multiplier)
equals or exceeds 183 days. Sec. 7701(b)(3)(A). Section
7701(b)(3)(D) then provides: “An individual shall not be treated
as being present in the United States on any day if-–(i) such
individual is an exempt individual for such day”. An individual
is an exempt individual for any day if, for such day, such
individual is a student. Sec. 7701(b)(5)(A). The term “student”
means any individual who is temporarily present in the United
States either (I) under section 101(15)(F) or (M) of the
Immigration and Nationality Act (1952), ch. 477, 66 Stat. 163; or
(II) section 101(15)(J) or (Q) of the same act; and who
Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 NextLast modified: May 25, 2011