Domicile – Non–U.S. Citizen Residency for Estate, Gift, and Generation-Skipping Transfer Taxes

A non-U.S. citizen is a U.S. resident for estate, gift, and GST tax purposes if he or she is domiciled in the United States at the time of the asset transfer in question. (Regs. §§ 20.0-1(b)(1), 25.2501-1(b); see also Farmers’ Loan & Trust Co. v. United States, 60 F2d 618 (SDNY 1932); Rodiek v. Comm’r, 33 BTA 1020 (1936), affd, 87 F2d 328 (2d Cir. 1937).) “Domicile” is defined, for this purpose, as that combination of physical presence (even for a very brief period) and no present intention of departing. (Regs. §§ 20.0-1(b)(1), 25.2501-1(b).) Proof of the requisite intent to remain depends on all of the relevant facts and circumstances, including:

1. The length of the individual’s stay;

2. The size, nature, and expense of the individual’s dwelling within the United States and of any dwellings outside the United States;

3. The location of personal possessions;

4. The existence of social and church contacts; and

5. Club memberships, business accounts, driver’s licenses, and such other indicia of permanence. (See Cooper v. Reynolds, 24 F2d 150 (D. Wyo. 1927); Estate of Fokker v. Comm’r, 10 TC 1225 (1948), acq. 1948-2 CB 2; Rodiek v. Comm’r, 33 BTA 1020 (1936), aff’d, 87 F2d 328 (2d Cir. 1937); Bank of New York & Trust Co. v. Comm’r, 21 BTA 197 (1930), acq. 1 CB 4.)


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