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in 2002, in order to decide this issue, we must resolve the
residency requirement of section 151(e); that is, we must
consider whether either of the claimed individuals could be
classified as a U.S. citizen or national in 2002.
Under section 152(b)(3), an individual who is not a citizen
or national of the United States is excluded from the definition
of the term “dependent” unless the individual is a resident of
the United States. Section 1.871-2, Income Tax Regs., contains
guidelines for determining if a noncitizen is a resident within
the meaning of section 152(b)(3). See DeLauzirika v.
Commissioner, T.C. Memo. 1971-181.
Section 1.871-2(b), Income Tax Regs., defines “residence”
as:
(b) Residence defined. An alien actually present in
the United States who is not a mere transient or sojourner
is a resident of the United States for purposes of the
income tax. Whether he is a transient is determined by his
intentions with regard to the length and nature of his stay.
A mere floating intention, indefinite as to time, to return
to another country is not sufficient to constitute him a
transient. If he lives in the United States and has no
definite intention as to his stay, he is a resident. One
who comes to the United States for a definite purpose which
in its nature may be promptly accomplished is a transient;
but, if his purpose is of such a nature that an extended
stay may be necessary for its accomplishment, and to that
end the alien makes his home temporarily in the United
States, he becomes a resident, though it may be his
intention at all times to return to his domicile abroad when
the purpose for which he came has been consummated or
abandoned. An alien whose stay in the United States is
limited to a definite period by the immigration laws is not
a resident of the United States within the meaning of this
section, in the absence of exceptional circumstances.
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