PROOF OF FACTS: The “Presence Test” excludes States of the Union in the Case of American Nationals who are “Nonresident Aliens”

By ftsig-admin | December 15, 2024

SOURCE: Proof that American Nationals are Nonresident Aliens, Form #09.081, Section 7.1
https://sedm.org/Forms/09-Procs/ProofAnNRA.pdf.

1. PROOF:

The presence test is found at 26 U.S.C. §7701(b) as follows:

26 U.S. Code § 7701 – Definitions

(b) Definition of resident alien and nonresident alien

(1) In general

For purposes of this title (other than subtitle B)—

(A) Resident alien

An alien individual shall be treated as a resident of the United States with respect to any calendar year if (and only if) such individual meets the requirements of clause (i), (ii), or (iii):

(i) Lawfully admitted for permanent residence

Such individual is a lawful permanent resident of the United States at any time during such calendar year.

(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).

(B) Nonresident alien

An individual is a nonresident alien if such individual is neither a citizen of the United States nor a resident of the United States (within the meaning of subparagraph (A)).

[. . .]

(3) Substantial presence test

(A) In general

Except as otherwise provided in this paragraph, an individual meets the substantial presence test of this paragraph with respect to any calendar year (hereinafter in this subsection referred to as the “current year”) 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 determined under the following table) equals or exceeds 183 days:

   In the case of days in:The applicable multiplier is:
Current year1 
1st preceding year⅓ 
2nd preceding year⅙ 

(B) Exception where individual is present in the United States during less than one-half of current year and closer connection to foreign country is established

An individual shall not be treated as meeting the substantial presence test of this paragraph with respect to any current year if—

(i) such individual is present in the United States on fewer than 183 days during the current year, and

(ii) it is established that for the current year such individual has a tax home (as defined in section 911(d)(3) without regard to the second sentence thereof) in a foreign country and has a closer connection to such foreign country than to the United States.

The regulations implementing the above are consistent with the above because they use the LOWER case “state” to refer to states of the Union. These states are LEGISLATIVELY foreign.

26 C.F.R. §301.7701(b)-1 – Resident alien.

§ 301.7701(b)-1 Resident alien.

(c) Substantial presence test—

(1) In general.

An alien individual is a resident alien if the individual meets the substantial presence test. An individual satisfies this test if he or she has been present in the United States on at least 183 days during a three year period that includes the current year. For purposes of this test, each day of presence in the current year is counted as a full day. Each day of presence in the first preceding year is counted as one-third of a day and each day of presence in the second preceding year is counted as one-sixth of a day. For purposes of this paragraph, any fractional days resulting from the above calculations will not be rounded to the nearest whole number. (See § 301.7701(b)-9(b)(2) for transitional rules for calendar years 1985 and 1986.)

(2) Determination of presence—

(i) Physical presence. 

For purposes of the substantial presence test, an individual shall be treated as present in the United States on any day that he or she is physically present in the United States at any time during the day. (But see § 301.7701(b)-3 relating to days of presence that may be excluded.)

(ii) United States. 

For purposes of section 7701(b) and the regulations thereunder, the term United States when used in a geographical sense includes the states and the District of Columbia. It also includes the territorial waters of the United States and the seabed and subsoil of those submarine areas which are adjacent to the territorial waters of the United States and over which the United States has exclusive rights, in accordance with international law, with respect to the exploration and exploitation of natural resources. It does not include the possessions and territories of the United States or the air space over the United States.

Based on the above:

  1. The term “present” is GEOGRAPHICAL and NOT LEGAL, CORPORATE, or DOMESTIC. This is demonstrated by 26 C.F.R. §301.7701(b)-1(c)(2)(ii).
  2. Because “present” is geographical, it relies to the geographical definition of 26 U.S.C. §7701(a)(9) and (a)(10).
  3. “Presence” under 26 U.S.C. §7701(b)(1)(A) relates ONLY to “alien individuals” and not “nationals of the United States*” or American Nationals born within and domiciled or present within the exclusive jurisdiction of a constitutional state. 26 U.S.C. §873, for instance, says “nationals of the United States” RATHER than “citizens of the United States” as “nonresident aliens”.
  4. Those who are “citizens of the United States” used in the description but not definition of “nonresident alien” in 26 U.S.C. §7701(b)(1)(B) are NOT “alien individuals” identified in 26 U.S.C. §7701(b)(1)(A) who are SUBJECT to the presence test in 26 U.S.C. §7701(b)(1)(A)(ii) and 26 U.S.C. §7701(b)(3).
  5. Because the term “present” in relation to “United States” is GEOGRAPHICAL and not LEGAL/CORPORATE, then provisions of the “minimum contacts” or COMMERCIAL prong of the following DO NOT apply in the APPLICATION of the “presence test” found in as identified in 26 U.S.C. §7701(b):
    5.1. Foreign Sovereign Immunities Act, 28 U.S.C. Chapter 97.
    5.2. International Shoe Co. v. Washington, 326 U.S. 310 (1945).
  6. The UPPER CASE “State” as used in 26 U.S.C. §7701(a)(10) and the LOWER case “state” in 26 C.F.R. §301.7701(b)-1(c)(2)(ii) are NOT the same thing.
    6.1. The UPPER case “State” is legislatively DOMESTIC and EXPRESSLY includes ONLY the District of Columbia. See 26 U.S.C. §7701(a)(10) and 26 C.F.R. §301.7701-1(e).
    6.2. The LOWER case “state” is legislatively FOREIGN and includes states of the Union under the FOREIGN AFFAIRS powers of Congress in Article 1, Section 8, Clause 3.
    Caselaw proves this out:

    “(d) the word “States”, as used in this section [Title 28 §1332 as amended in 1958] includes the Territories, the District of Columbia, and the Commonwealth of Puerto Rico.

    It is to be noted that the statute differentiates between States of the United States and foreign states by the use of the capital S for the word when applied to a State of the United States.”
    [Eisenberg v. Commercial Union Assurance Company, 189 F.Supp. 500 (1960)]
  7. The income tax applies geographically to “States” and not “states” regardless of whether the taxpayer is an ALIEN or a NATIONAL.
  8. Those ALIENS described as being “PRESENT” or “RESIDENT” in the statutory geographical “United States” under the PRESENCE TEST can be PHYSICALLY present in the “United States*” the COUNTRY and satisfy the presence test and even work there and still NOT have earnings from the statutory geographical United States**” (District of Columbia) in 26 U.S.C. §7701(a)(9) and (10).

2. REBUTTAL OF FALSE COURT PROPAGANDA ON THIS SUBJECT:

The following case incorrectly and we allege even FRAUDULENTLY contradicts the above:

I. BACKGROUND

A. The Sovereign Citizen Movement

Ms. Walby’s complaint reflects that she adheres to the belief that even though she was born and resides in the United States, she is not a “Fourteenth Amendment” United States citizen but rather a citizen of [**2]  the “sovereign state” of Michigan. This belief is a hallmark of the sovereign citizen movement. So-called “sovereign citizens” believe that they are not subject to federal government authority and employ various tactics in an attempt to, among other acts, avoid paying taxes, extinguish debts, and derail criminal proceedings. See, e.g., Brown v. United States, 105 F.3d 621, 622-23 (Fed. Cir. 1997) (describing an attempt to avoid payment of federal income taxes); United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990) (describing an attempt to present a defense in a criminal trial); Bryant v. Wash. Mut. Bank, 524 F. Supp. 2d 753, 755-56 (W.D. Va. 2007) (describing an attempt to satisfy a mortgage).

[. . .]

C. Ms. Walby Is a United States Resident for Tax Purposes

Even assuming, for the sake of argument only, that Ms. Walby is not a United States citizen, she is still a resident for tax purposes and thus her argument that she is a “nonresident alien” not subject to tax fails.

HN14 For tax purposes, an individual is classified as either a (1) “United States person”—i.e., a “citizen or resident of the United States”—or (2) “nonresident alien.” Id. § 7701(a)(30)(A), (b)(1); accord Treas. Reg. § 1.871-1(a) (“For purposes of the income tax, alien individuals are divided generally into two classes, namely, resident aliens and nonresident aliens. Resident alien individuals are, in general, taxable the same as citizens of the United States . . .”). A noncitizen is treated as a resident with respect to a particular [**19]  calendar year in three circumstances: (1) obtaining lawful permanent residence at any time during the year, (2) meeting the “substantial presence” test, or (3) making a first-year election. I.R.C. § 7701(b)(1)(A). A person is treated as a “nonresident alien” only if she is neither a citizen nor treated as a resident. Id. § 7701(b)(1)(B).

Michigan is located within the United States. Id. § 7701(a)(9). Ms. Walby therefore meets the “substantial presence” test because she was present in the United States for the entirety of the 2014 through 2018 tax years; she does not allege that any of that time is exempt for purposes of the test. See id. § 7701(b)(3), (5) (describing the requirements of the “substantial presence” test and its exemptions). Further, because a person who meets the “substantial presence” test for a particular year is deemed a resident as of the first day during that year on which she is present in the United States, id. § 7701(b)(2)(A)(iii), and because Ms. Walby was present for the entirety of each of the years at issue, Ms. Walby was a United States resident for the entire 2014 through 2018 tax years.

[Walby v. United States, 144 Fed.Cl. 1 (2019)]

The above case is obviously severely flawed because:

  1. It conflates “United states resident” as a FICTION with a PHYSICAL HUMAN BEING. They are NOT the same THING!
    1.1. “United states resident” is a fictional office created and owned by Congress.
    1.2. The OFFICE of “United States resident” has a PHYSICAL domicile in the statutory geographical “United States” defined in 26 U.S.C. §7701(a)(9) and (a)(10) but the physical human VOLUNTARILY filling said office has a domicile INDEPENT of that office that is usually legislatively FOREIGN by virtue of being in a Constitutional state of the Union. This DUALITY is even recognized in 26 C.F.R. §301.7701(b)-2.
    1.3. The court is therefore EQUIVOCATING the LEGAL and the GEOGRAPHICAL contexts as well as the OFFICE with the OFFICER. This is VERY deceptive.
  2. They conflate the “United States citizen” in 26 C.F.R. §1.1-1(a) with an American National or “national of the United States*”.
    2.1. The two are CLEARLY not the same.
    2.2. A national without a domicile in the statutory geographical “United States” is a nonresident and therefore a “nonresident alien”.
  3. 26 C.F.R. §1.1441-1(c)(3) confirms that:
    3.1. “aliens” are NEITHER “citizens nor nationals of the United States”.
    3.2. “nonresident aliens” are NEITHER “citizens or residents of the United States”
    Thus, this regulation RECOGNIZES that NATIONALS of the United States are not ALIEN but can be NONRESIDENT ALIENS.
  4. They indicate that the state that: “Michigan is located within the [statutory geographical] United States. Id. § 7701(a)(9)” but offer no proof.
    4.1. WITHOUT proof, the court is engaging in unconstitutional PRESUMPTION in violation of due process of law.
    4.1. “United States” for the purposes of PRESENCE TEST ONLY includes states of the Union, which are LOWER case and therefore legislatively FOREIGN in 26 C.F.R. §301.7701(b)-1(c)(2)(ii) because of Congress’ authority over foreign affairs under Article 1, Section 8, Clause 3 of the Constitution.
    4.2. “United States” for TAX and not PRESENCE TEST purposes EXCLUDES status of the Union per 4 U.S.C. §110(d).
    4.3. These two “United States” are NOT the same, but the court wants to deceive the reader into BELIEVING they are the same in class case of EQUIVOCATION.
  5. Because Congress never EXPRESSLY made the UPPER case “State” and LOWER case “state” equivalent in any of their statutory definitions:
    5.1. The court cannot PRESUME they are the same. That violates due process.
    5.2. For the court to MAKE them the same is an unconstitutional exercise of LEGISLATIVE functions by supplying a definition or EXPANDING a definition that does not expressly appear in the enactments of Congress. This violates the separation of powers doctrine.
  6. The benefit of the doubt about the meaning of “United States” must ALWAYS be construed AGAINST the government and to the BENEFIT of the party on whom the tax is laid. See:
    PROOF OF FACTS: Ambiguous tax statutes are to be construed against the government, FTSIG
    https://ftsig.org/proof-of-facts-ambiguous-tax-statutes-are-to-be-construed-against-the-government/
  7. The court VIOLATED the above doctrine against Ms. Walby and thus:
    7.1. Prejudiced her constitutional rights.
    7.2. STOLE her property.
    7.3. By STEALING her property, they violated the Fifth Amendment Takings Clause without just compensation.
    7.4. Committed IDENTITY THEFT in violation of 18 U.S.C. §912, by treating her AS IF she were an ALIEN rather than a NATIONAL by incorrectly attributing ALIEN status in applying the PRESENCE test.

The DESIGNER of our three branch system of government, Baron De Montesquieu WARNED us to be on guard for the above COURT TREACHERY when he stated, even BEFORE the Declaration of Independence was written no less, the following:

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression [sound familiar?].

There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”

[. . .]

In what a situation must the poor subject be in those republics! The same body of magistrates are possessed, as executors of the laws, of the whole power they have given themselves in quality of legislators. They may plunder the state by their general determinations; and as they have likewise the judiciary power in their hands, every private citizen may be ruined by their particular decisions.”
[The Spirit of Laws, Charles de Montesquieu, 1758, Book XI, Section 6;
SOURCE: http://famguardian.org\Publications\SpiritOfLaws\sol_11.htm]

Admittedly, the above ruling dealt with a COMMERICAL tax refund in which the “minimum contacts doctrine” or commercial prong of the following MIGHT be properly applied to a “national of the United States”:

  1. Foreign Sovereign Immunities Act, 28 U.S.C. Chapter 97.
  2. International Shoe Co. v. Washington, 326 U.S. 310 (1945).

The minimum contacts test is a legal standard used to determine if a court has jurisdiction over an out-of-state defendant. To meet this test, the following elements must be satisfied:

  1. Reasonableness: Exercising jurisdiction must be reasonable and fair, considering the burden on the defendant, the forum state’s interest in adjudicating the dispute, and the plaintiff’s interest in obtaining convenient and effective relief.
  2. Purposeful Availment: The defendant must have purposefully availed themselves of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.
  3. Foreseeability: It must be foreseeable that the defendant could be haled into court in the forum state.
  4. Relatedness: The litigation must arise out of or relate to the defendant’s contacts with the forum state.

We must consider, however, that in this case, Ms. Walby would have been accepting a PRIVILEGE by asking for a tax refund that would make her appear as “purposefully availing herself” and thus waiving sovereign immunity and satisfying the “minimum contacts test” per the above. Such a PRIVILEGE could only exist by one of TWO mechanisms:

  1. Connecting HERSELF to a voluntary privileged PUBLIC status by:
    1.1. Filing a 1040 RESIDENT tax form.
    1.2. Identifying herself in tax filing as a CIVIL STATUTORY “taxpayer”, “person”, or “individual”
  2. DONATING her PRIVATE property to a PUBLIC use by “effectively connecting it”. This is done by ENTERING it on the 1040NR return.

If Ms. Walby did NONE of the above in her tax return filing, she would:

  1. Waive CIVIL STATUTORY protection.
  2. Not invoke the “benefits” of the laws that congress created under the Constitutional Avoidance Doctrine of the U.S. Supreme Court. See:
    Catalog of U.S. Supreme Court Doctrines, Form #10.020, Section 5.13
    https://sedm.org/Litigation/10-PracticeGuides/SCDoctrines.pdf
  3. REMAIN EXCLUSIVLY PRIVATE.
  4. Retain CONSTITUTIONAL protections of the Fifth Amendment.
  5. Not waive her SOVEREIGN IMMUNITY.
  6. Be in a position to properly and effectively challenge jurisdiction to impose the tax.

The above STANDING to LAWFULLY challenge the income tax as a PRIVATE and FOREIGN party who did NOT VOLUNTEER is acknowledged by the U.S. Supreme Court as follows:

“The constitutional right [Form #10.015] against unjust taxation is given for the protection of private property [Form #12.046], but it may be waived by those affected who consent [Form #05.003] to such action to their property as would otherwise be invalid [or even ILLEGAL or CRIMINAL].”
[Wight v. Davidson, 181 U.S. 371 (1901)]

[A mistake on a tax form through legal ignorance is not CONSENT which creates an actual liability.  The amounts paid are recoverable when paid under protest per 28 U.S.C. §1346 when claimed within the statute of limitations.  See United States v. Williams, 514 U.S. 527 (1995)]

For those who are curious, the following FREE 1040-NR tax return filing PRESERVES the above approach to invoke CONSTITUTIONAL instead of PRIVILEGED CIVIL STATUTORY protections:

1040-NR Attachment, Form #09.077
https://sedm.org/Forms/09-Procs/1040NR-Attachment.pdf

The above 1040-NR return filing retains CONSTITUTIONAL protections and avoids STATUTORY protections by:

  1. Exhausting administrative remedies before litigation as required by all courts.
  2. Invoking the Fifth Amendment and EQUITY for the recovery of the wrongfully withheld earnings rather than the STATUTORY refund authority found in 26 U.S.C. §7422. This statute does NOT limit itself to CIVIL “taxpayers” or “persons” and thus is available to NONRESIDENTS protected ONLY by the Fifth Amendment and EQUTY.
  3. Defining all terms on the 1040-NR as EXCLUDING the statutory context.
  4. Not “effectively connecting” any of the earnings of the filer by entering them on the 1040-NR return. Thus, the earnings remain PRIVATE rather than PUBLIC.
  5. Including a criminal complaint against those who instituted duress in COMPELLING the withholding.
  6. Invoking RULES and REGULATIONS against those in WRONGFUL custody of YOUR property UNLESS and UNTIL the property is “returned” under equity and common law. Those rules are documented in:
    Injury Defense Franchise and Agreement, Form #06.027
    https://sedm.org/Forms/06-AvoidingFranch/InjuryDefenseFranchise.pdf

For a more exhaustive description of the list above, see:

Using the Laws of Property to Respond to a Federal or State Tax Collection Notice, Form #14.015, SEDM
https://sedm.org/using-the-laws-of-property-to-respond-to-a-federal-or-state-tax-collection-notice/

In this particular case, the court IN EFFECT incorrectly, deceptively, and stealthily:

  1. Replaced the PHYSICAL PRESENCE with the MINIMUM CONTACTS test.
    1.1. The PRESENCE TEST is PHYSICAL and GEOGRAPHICAL.
    1.2. The MINIMUM CONTACTS test is NON-GEOGRAPHICAL and CORPORATE. The target of those contacts MUST be a “member” of the state under the civil statutes such as a franchisee to invoke those statues in defense.
  2. Deliberately never completely explained WHY and HOW Ms. Walby satisfied the MINIMUM CONTACTS test. Based on reading the case, she DIDN’T satisfy this because she didn’t:
    2.1. “Effectively connect” her earnings and thus DONATE them to a PUBLIC use.
    2.2. Take any PRIVILEGED 26 U.S.C. §162 “trade or business” (public office) DEDUCTIONS, because she didn’t NEED them with no “effectively connected” earnings.
  3. By doing the above, the court once again engaged in EQUIVOCATION to commit CRIMINAL IDENTITY theft as documented in:
    Government Identity Theft, Form #05.046
    https://sedm.org/Forms/05-MemLaw/GovernmentIdentityTheft.pdf
  4. The above CRIMINAL IDENTITY THEFT that is the FOUNDATION of corruption of all governments, according to the Bible, is further documented in:
    How Scoundrels Corrupted Our Republican Form of Government, Family Guardian Fellowship
    https://famguardian.org/Subjects/Taxes/Evidence/HowScCorruptOurRepubGovt.htm

At the heart of this case is understanding EXACTLY HOW you VOLUNTARILY acquire a “civil status” or “tax status” such as “individual”, “person”, or “taxpayer”. No one can force ANY CIVIL STATUTORY status on you without your consent that comes with obligations. If they could, then the following violations of law would be the result:

  1. UNCONSTITUTIONAL “involuntary servitude” in violation of the Thirteenth Amendment would be the result. See:
    Proof that Involuntary Taxes on Your Labor are Slavery, Form #05.055
    https://sedm.org/Forms/05-MemLaw/ProofIncomeTaxLaborSlavery.pdf
  2. Fifth Amendment Taking of private property. RIGHTS are property. The OBLIGATIONS attached to the status they FORCE upon you are the PROPERTY stolen from you without your consent. This is the very MEANING of “violation of due process”, in fact: A TAKING of private property without consent. See:
    Laws of Property, Form #14.018
    https://sedm.org/Forms/14-PropProtection/LawsOfProperty.pdf

If you want to learn about the subject of how you VOLUNTARILY ACCEPT and ACQUIRE a TAX STATUS or CIVIL STATUS, we highly recommend:

  1. Acquiring a Civil Status, FTSIG
    https://ftsig.org/civil-political-jurisdiction/acquiring-a-civil-status/
  2. Your Exclusive Right to Declare or Establish Your Civil Status, Form #13.008
    https://sedm.org/Forms/13-SelfFamilyChurchGovnce/RightToDeclStatus.pdf
  3. Policy Document: IRS Fraud and Deception About the Statutory Word “Person”, Form #08.023
    https://sedm.org/Forms/08-PolicyDocs/IRSPerson.pdf

3. ERRONEOUS POSITITIONS OF MS. WALBY

In fairness to the court, this outcome was not entirely the court’s fault.   Even GIVEN the above analysis, there were a few things that Walby clearly didn’t understand or properly invoke before the court that prejudiced her case against her.  You should AVOID these pitfalls:

  1. She clearly did NOT understand the difference between POLITICAL/CONSTITUTIONAL Citizens* and CIVIL DOMICILED Citizens**+D.  See:
    How You are Illegally Deceived or Compelled to Transition from Being a POLITICAL Citizen to a CIVIL Citizen: By Confusing the Two Contexts, Family Guardian Fellowship
    https://famguardian.org/Subjects/LawAndGovt/Citizenship/HowCitObfuscated.htm
  2. Because she didn’t completely understand citizenship, she didn’t properly AVER her STATUS as legislatively foreign.  See:
    How to Aver Your Status as a Fourteenth Amendment “nonresident alien”, FTSIG
    https://ftsig.org/how-to-aver-your-status-as-a-fourteenth-amendment-nonresident-alien/
  3. She invoked a STATUTORY refund instead of a CONSTITUTIONAL, PRIVATE, and EQUITABLE refund.  Thus, she litigated as a privileged and DOMESTIC “taxpayer” instead of a PRIVATE “non-person” protected ONLY by the constitution. See the previous section on how NOT to do that.
  4. She didn’t fully understand the proper audience for the “presence test” in 26 U.S.C. §7701(b) or characterize herself as someone NOT subject to it.  This would have PREVENTED the court from applying it to her or at least FORCED them to prove it DID apply to her.  Thus, she left the back door WIDE open for the court to mischaracterize that test and improperly apply it to HER and thus STEAL here silverware.

We strongly suspect that this case was CHERRY-PICKED for judgment by the court BECAUSE of the above errors by Ms. Walby as a way to enter into the public record BAD caselaw that will further mislead and deceive the public on the nonresident alien issue to dissuade them from using it.  DO YOUR HOMEWORK folks, or you will help the government work further by abusing your own legal ignorance about the issues you are litigating. 

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