SILVERMAN, Circuit Judge.
We hold today that income earned by a taxpayer on Johnston Island, a U.S. insular possession, is not excludable from gross income as "foreign earned income" under § 911 of the Internal Revenue Code. Neither is it income derived from a source within a "specified possession" as defined by § 931 of the Code. We therefore affirm the district court.
Between 1994 and 1996, appellant Paul Farrell was employed by Raytheon Corporation. During those years, Farrell lived and worked on Johnston Island, a 591-acre island located approximately 700 miles west-southwest of Hawaii. It is the principal island of the Johnston Atoll, a U.S. military installation and bird refuge. See U.S. General Accounting Office, Report to the Chairman, Committee on Resources, House of Representatives, U.S. Insular Areas — Application of the U.S. Constitution, GAO/OGC 98-5 (app.II) at 50-52 (Nov.1997).
On Farrell's federal income tax returns for 1994, 1995 and 1996, Farrell (filing jointly with his wife) treated $70,000 of his earnings each year as excludable from gross income as "foreign earned income" under § 911 of the Internal Revenue Code. The exclusions were disallowed by the IRS. Farrell then filed amended returns seeking refunds for the years in question, claiming that his Johnston Island earnings were excludable under either § 911 ("foreign earned income") or § 931 (income from a "specified possession"). The refunds were denied, and Farrell filed suit in district court.
The district court granted the government's motion for summary judgment, ruling that a § 911 exclusion for "foreign earned income" did not apply because Johnston Island, being a U.S. possession, is not a foreign country. The court also held that Farrell's Johnston Island income did not qualify for exclusion under § 931 as income from a "specified possession" because § 931 defines "specified possession" to mean Guam, American Samoa and the Northern Mariana Islands — Johnston Island is not on the list. Finally, the court rejected Farrell's argument that his Johnston Island income was excludable under Treas. Reg. § 1.931-1, which continues to list Johnston Island as a possession of the United States for purposes of § 931. The court ruled that the regulation, although still on the books, implemented a prior version of § 931. In 1986, the present version of § 931 was enacted, rendering the pre-existing regulation flatly inconsistent
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. A grant of summary judgment is reviewed de novo. Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002).
We agree with the district court that the Farrells' Johnston Island income is not excludable under either § 911 or § 931.
A. Section 911
In pertinent part, 26 U.S.C. § 911 states:
Pursuant to this section, an individual whose tax home is a foreign country may elect to exclude the amount received from sources within a foreign country. During the relevant time period, this excludable amount was limited to $70,000. Treasury Regulation § 1.911-2(h) provides that, "[t]he term `foreign country' when used in a geographical sense includes any territory under the sovereignty of a government other than that of the United States."
Johnston Island is not a foreign country. It is a United States insular possession.
U.S. General Accounting Office, Report to the Chairman, Committee on Resources, House of Representatives, U.S. Insular Areas — Application of the U.S. Constitution, GAO/OGC 98-5 (app.II) at 51-52 (Nov.1997) (citations and footnotes omitted).
Having no local government or native population, Johnston Island is an unorganized unincorporated insular possession. U.S. Insular Areas — Application of the U.S. Constitution, supra at 10, 40; 6 New Encyclopaedia Britannica 598 (15th ed.2002). In addition, Johnston Atoll is not part of Guam, American Samoa, or the Northern Mariana Islands, and is specifically excluded from the islands making up the State of Hawaii. See 48 U.S.C. §§ 1421, 1661-1662, 1801 (1994); U.S. Insular Areas — Application of the U.S. Constitution, supra at 43-44; Act Admitting Hawaii to Statehood, Pub.L. No. 8-3, § 2, 73 Stat. 4 (1959), current version at 48 U.S.C. ch. 3, sec. 2 (1994).
Since Johnston Island is a U.S. possession, not a foreign country, income earned there cannot be excluded under § 911. See Specking v. Commissioner, 117 T.C. 95, 2001 WL 987795 (2001), 2001 U.S. Tax Ct. Lexis 40, at *35 ("Inasmuch as Johnston Island does not fall within the definition of a foreign country, the compensation petitioners earned on Johnston Island does not come within the definition of `foreign earned income'....")
B. Section 931
Farrell also argues that he can exclude his Johnston Island income under § 931 as income from a specified possession. In pertinent part, 26 U.S.C. § 931 states:
By its explicit terms, § 931 applies only to income derived from sources within Guam, American Samoa and the Northern Mariana Islands. Acknowledging this, Farrell relies on Treas. Reg. § 1.931-1, which states in pertinent part:
This regulation was promulgated prior to the enactment of the Tax Reform Act of 1986. Prior to the 1986 legislation, § 931 permitted, on certain conditions, the exclusion of income derived from sources within a possession of the United States, except for sources within Puerto Rico, the Virgin Islands, or Guam. In other words, income derived from Johnston Island could be excluded. However, the Tax Reform Act of 1986 changed all of that, limiting the § 931 exclusion only to income derived from sources within Guam, American Samoa and the Northern Mariana Islands. In other words, income from Johnston Island could no longer be excluded. Nevertheless, Treas. Reg. § 1.931-1 remains on the books.
This regulation, if still valid, would support the view taken by Farrell. The problem, however, is that the regulation is flatly contradicted by the present version of § 931, and, therefore, cannot stand. See Specking v. Commissioner, 117 T.C. 95, 2001 WL 987795 (2001), 2001 U.S. Tax Ct. Lexis 40, at *30 ("The regulatory language on which petitioners rely defines the term `possession' for purposes of old section 931. As we have concluded above, that provision no longer applies to petitioners. Consequently, the regulatory provision also has no application to them and is obsolete as to petitioners.")
It is well-settled that when a regulation conflicts with a subsequently enacted statute, the statute controls and voids the regulation. See Microsoft Corp. v. C.I.R., 311 F.3d 1178, 1187-89 (9th Cir.2002); see Cramer v. C.I.R., 64 F.3d 1406, 1412 (9th Cir.1995) ("[W]e will uphold a Treasury regulation if it `implement[s] the congressional mandate in some reasonable manner,' and is not `plainly inconsistent' with the Code.") (citations omitted); see also Scofield v. Lewis, 251 F.2d 128, 132 (5th Cir.1958) ("A Regulation, valid when promulgated, becomes invalid upon the enactment of a statute in conflict with the Regulation.")
Finally, Farrell argues that the definition of "specified possession" in the current version of § 931 has not come into play because, he contends, Guam and the Northern Mariana Islands have not entered into implementing agreements with the United States. It is true that Congress made the excludability of income derived from Guam, American Samoa, and the Northern Mariana Islands contingent upon the signing of agreements between the United States and the specified possessions. See Pub.L. No. 99-514, § 1277, 100 Stat. 2600-02, as amended by Pub.L. No. 100-647, Title I, § 1012(z), Nov. 10, 1988, 102 Stat. 3531.