[Federal Register Volume 71, Number 219 (Tuesday, November 14, 2006)]
[Rules and Regulations]
[Pages 66232-66234]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-19135]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[TD [9297]]
RIN 1545-BG02


Residence Rules Involving U.S. Possessions

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final regulations.

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SUMMARY: This document contains final regulations that provide rules 
for determining bona fide residency in the following U.S. territories: 
American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and 
the United States Virgin Islands under section 937(a) of the Internal 
Revenue Code.

DATES: Effective Date: These regulations are effective November 14, 
2006.
    Applicability Dates: For dates of applicability, see Sec.  1.937-
1(i).

FOR FURTHER INFORMATION CONTACT: J. David Varley, (202) 435-5262 (not a 
toll-free number).

SUPPLEMENTARY INFORMATION:

Background

    On April 11, 2005, the IRS and Treasury Department published in the 
Federal Register temporary regulations (TD 9194, 70 FR 18920, as 
corrected at 70 FR 32589-01), which provided rules to implement section 
937 of the Internal Revenue Code (Code) dealing with U.S. possessions 
or territories specified in that section (territories) and to conform 
existing regulations to other legislative changes with respect to the 
territories. A notice of proposed rulemaking (REG-159243-03, 70 FR 
18949) cross-referencing the temporary regulations was published in the 
Federal Register on the same day. Written comments were received in 
response to the notice of proposed rulemaking and a public hearing on 
the proposed regulations was held on July 21, 2005. After consideration 
of the comments, the IRS and Treasury Department on January 31, 2006 
published in the Federal Register final regulations (TD 9248, 71 FR 
4996, as corrected at 71 FR 14099) under section 937(a) dealing with 
determining residency in a territory, adopting with amendments the 
proposed regulations (specifically, Sec. Sec.  1.937-1 and 1.881-
5T(f)(4)).
    Section 937(a) provides that an individual is a bona fide resident 
of a territory if the individual meets a presence test, a tax home test 
and a closer connection test. In order to satisfy the presence test, a 
person must be present in the territory for at least 183 days during 
the taxable year (the 183-day rule), unless otherwise provided in 
regulations. The final section 937(a) regulations provide several 
alternatives to the 183-day rule in the statute.
    Treasury Reg. Sec.  1.937-1 provides that an individual who does 
not satisfy the 183-day rule nevertheless meets the presence test if 
the individual satisfies one of three alternative tests: (1) The 
individual spends no more than 90 days in the United States during the 
taxable year; (2) the individual has no more than $3,000 of earned 
income from U.S. sources and is present for more days in the territory 
than in the United States during the taxable year; or (3) the 
individual has no significant connection to the United States during 
the tax year. The term ``significant connection'' is generally defined 
as a permanent home, voter registration, spouse, or minor child in the 
United States. The final regulations also provide that certain days 
count as days of presence in the relevant territory for the purposes of 
the presence test, even if the person was not physically present in the 
territory. Similarly, certain days that an individual spends in the 
United States do not count as days of presence in the United States for 
purposes of the presence test.
    Before finalizing the regulations, the IRS and Treasury Department 
received comments suggesting that days spent outside of a territory for 
nonmedical family emergencies, charitable pursuits or business travel 
should count as days spent in the territory and outside the United 
States. The IRS and Treasury Department were sympathetic to the concern 
that the realities of life in the territories might require periodic 
temporary absences from the territories, but found that the particular 
suggestions would have been very difficult to implement and monitor 
administratively. Further, the IRS and Treasury Department declined to 
adopt the commentators' suggestion to import a simple mirroring of the 
substantial presence test of section 7701(b) on the ground that 
Congress had considered but rejected this approach for determining 
residency in a territory. See H.R. Conf. Rep. No. 108-755, at 791-795 
(2004). Nonetheless, the IRS and Treasury Department believed that 
final regulations provided meaningful advantages to taxpayers over the 
proposed and temporary regulations.

Explanation of Provisions

    Following publication of the final regulations, additional comments 
were made requesting that the IRS and

[[Page 66233]]

Treasury Department revisit the presence test. For example, one 
commentator requested that up to 30 days of business or personal travel 
outside the United States and the territory be treated as days of 
presence in a territory. The IRS and Treasury Department continue to be 
sympathetic to the concern that the realities of life in the 
territories might require periodic temporary absences from the 
territories for business pursuits, have concluded nonetheless that such 
a rule would be administratively difficult to implement and monitor. In 
addition, commentators have not been able to offer meaningful 
suggestions to alleviate this concern. The IRS and Treasury Department 
believe that in these situations, the 183-day rule in combination with 
the alternatives to that rule, as liberalized in the final regulations, 
provide sufficient flexibility to accommodate absences from the 
territory to pursue a range of activities.
    In addition, a commentator argued that the treatment of major 
disasters should be liberalized to allow individuals to spend time away 
from the territories in the event of a natural disaster. This 
commentator said the final regulations only provide rules for 
evacuations of territories, which suggests the IRS and Treasury 
Department do not realize that the territories are typically not 
evacuated in the event of natural disasters such as a hurricane. This 
commentator appears to have misunderstood the final regulations. The 
final regulations already address the commentator's concerns and 
provide that if an individual leaves, or is unable to return to, a 
relevant territory during a two-week period within which an officially 
declared major disaster in the relevant territory occurs, then the 
individual will not count any day during either period as a day of 
presence in the United States, even though the individual is not 
present in the United States, and will treat such days as days of 
presence in the relevant territory. In addition, the regulations 
provide for relief in case there ever is a natural disaster that would 
warrant the evacuation of a territory. The IRS and Treasury Department 
recognize that it is currently not the custom to evacuate the 
territories in the event of natural disasters such as a hurricane. 
However, the IRS and Treasury Department continue to think it best to 
retain the rules regarding evacuations so that the regulations are 
flexible enough to allow for such an event should it ever occur. 
Individuals who remain in the territories during the natural disaster 
obviously can count those days for the presence test.
    Commentators also requested that outpatient care be added to the 
permitted types of qualifying medical treatment. Under the final 
regulations, a temporary stay in the United States for certain 
documented medical treatment of the individual, or a parent, spouse or 
child whom the individual accompanies to the treatment, will not count 
as days spent in the United States for purposes of the alternatives to 
the 183-day rule, irrespective of where the medical condition arose. 
The final regulations focus on inpatient treatment in a hospital, 
hospice or residential medical care facility and the formal credentials 
of the health care provider as an objective proxy for a determination 
that a medical condition is serious enough to entail periods of 
treatment that may not be readily covered by other alternatives to the 
183-day rule. The IRS and Treasury Department continue to believe that 
in medical situations not otherwise provided for in the final 
regulations, the 183-day rule in combination with the alternatives to 
that rule, as liberalized in these final regulations, provide 
sufficient flexibility to accommodate absences from the territories.
    Finally, these post-publication comments suggested a new 
alternative to the presence test whereby U.S. citizens and residents 
should be permitted to satisfy the 183-day rule of section 937(a)(1) by 
meeting some type of averaging test that would better accommodate the 
realities of business cycles and life in the territories. The IRS and 
Treasury Department believe that this final new suggestion is 
administrable and achieves the additional flexibility the commentators 
sought for the host of activities commentators discussed above and for 
which the commentators suggested additional exceptions to the 183-day 
rule.
    As amended by this Treasury decision, the final regulations now 
incorporate a new alternative to the presence test that requires the 
individual to be present in the relevant territory for a simple 
nonweighted three-year average of 183 days per year, provided that a 
minimum of 60 days of presence is met in each of those three years. 
Thus, under this alternative, an individual will satisfy the presence 
test for a taxable year if the individual is present in the relevant 
territory a minimum of 549 days during the three-year period that 
includes the current taxable year and the two preceding taxable years, 
so long as the individual is also present in the relevant territory for 
a minimum of 60 days in each year during that three-year period. This 
test is in addition to the existing regulatory alternatives to the 
statutory test and incorporates the existing rules for counting days.
    In light of the additional flexibility achieved by the new three-
year averaging alternative adopted in this Treasury decision, the IRS 
and Treasury Department have determined not to adopt the other 
amendments suggested by commentators. These suggestions were each felt 
to be either not appropriate or difficult to administer. The new three-
year averaging alternative, together with the existing available 
alternatives, provides individuals with sufficient flexibility in 
applying the presence test. It is not expected that any further 
amendments will be made to the bona fide residence rules of Sec.  
1.937-1.

Special Analyses

    It has been determined that this Treasury decision is not a 
significant regulatory action as defined in Executive Order 12866. 
Therefore, a regulatory assessment is not required. It also has been 
determined that section 553(b) of the Administrative Procedure Act (5 
U.S.C. chapter 5) does not apply to these regulations. Because the 
regulations do not impose a collection of information on small 
entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not 
apply. Pursuant to section 7805(f) of the Code, the notice of proposed 
rulemaking preceding these regulations was submitted to the Chief 
Counsel for Advocacy of the Small Business Administration for comment 
on its impact on small business.

Drafting Information

    The principal author of these regulations is J. David Varley, 
Office of the Associate Chief Counsel (International), IRS. However, 
other personnel from the IRS and Treasury Department participated in 
their development.

List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

Adoption of Amendments to the Regulations

0
Accordingly, 26 CFR part 1 is amended as follows:

PART 1--INCOME TAXES

0
Paragraph 1. The authority citation for part 1 is amended by adding 
entries in numerical order to read, in part, as follows:


[[Page 66234]]


    Authority: 26 U.S.C. 7805 * * *
    Section 1.937-1 also issued under 26 U.S.C. 937(a). * * *


0
Par. 2. Section 1.937-1 is amended as follows:
0
1. Revise paragraph (c)(1) and (c)(5) introductory text.
0
2. Amend paragraph (g) by redesignating Examples 1 through 9 as 
Examples 2 through 10 respectively, adding new Example 1, and revising 
newly designated Example 2, the last sentence; Example 3, the ninth 
sentence; and Example 6, the sixth sentence.
    The revisions and addition read as follows:


Sec.  1.937-1  Bona fide residency in a possession.

* * * * *
    (c) Presence test--(1) In general. A United States citizen or 
resident alien individual (as defined in section 7701(b)(1)(A)) 
satisfies the requirements of this paragraph (c) for a taxable year if 
that individual--
    (i) Was present in the relevant possession for at least 183 days 
during the taxable year;
    (ii) Was present in the relevant possession for at least 549 days 
during the three-year period consisting of the taxable year and the two 
immediately preceding taxable years, provided that the individual was 
also present in the relevant possession for at least 60 days during 
each taxable year of the period;
    (iii) Was present in the United States for no more than 90 days 
during the taxable year;
    (iv) During the taxable year had earned income (as defined in Sec.  
1.911-3(b)) in the United States, if any, not exceeding in the 
aggregate the amount specified in section 861(a)(3)(B) and was present 
for more days in the relevant possession than in the United States; or
    (v) Had no significant connection to the United States during the 
taxable year. See paragraph (c)(5) of this section.
* * * * *
    (5) Significant connection. For purposes of paragraph (c)(1)(v) of 
this section--
* * * * *
    (g) Examples. * * *

    Example 1. Presence test. H, a U.S. citizen, is engaged in a 
profession that requires frequent travel. H spends 195 days of each 
of the years 2005 and 2006 in Possession N. In 2007, H spends 160 
days in Possession N. Under paragraph (c)(1)(ii), H satisfies the 
presence test of paragraph (c) of this section with respect to 
Possession N for taxable year 2007. Assuming that in 2007 H does not 
have a tax home outside of Possession N and does not have a closer 
connection to the United States or a foreign country under 
paragraphs (d) and (e) of this section respectively, then regardless 
of whether H was a bona fide resident of Possession N in 2005 and 
2006, H is a bona fide resident of Possession N for taxable year 
2007.
    Example 2. Presence test. * * * However, under paragraph 
(c)(1)(iv) of this section, W still satisfies the presence test of 
paragraph (c) of this section with respect to Possession P because 
she has no earned income in the United States and is present for 
more days in Possession P than in the United States.
    Example 3. Presence test. * * * Assuming that no other 
accommodations in the United States constitute a permanent home with 
respect to T, then under paragraphs (c)(1)(v) and (c)(5) of this 
section, T has no significant connection to the United States. * * *
* * * * *
    Example 6. Seasonal workers--Tax home and closer connection. * * 
* P satisfies the presence test of paragraph (c) of this section 
with respect to both Possession Q and Possession I, because, among 
other reasons, under paragraph (c)(1)(iii) of this section she does 
not spend more than 90 days in the United States during the taxable 
year. * * *
* * * * *

Linda M. Kroening,
Acting Deputy Commissioner for Services and Enforcement.
     Approved: November 3, 2006.
Eric Solomon,
Acting Deputy Assistant Secretary of the Treasury (Tax Policy).
 [FR Doc. E6-19135 Filed 11-13-06; 8:45 am]
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