ficiel du Grand-Duché de Luxembourg Amtsblatt des Großherzogtums Luxemburg RECUEIL DE LEGISLATION A –– N° 158 12 août 2015 Sommaire Loi du 24 juillet 2015 portant approbation 1. de l’Accord entre le Gouvernement du Grand-Duché de Luxembourg et le Gouvernement des Etats-Unis d’Amérique en vue d’améliorer le respect des obligations fiscales à l’échelle internationale et relatif aux dispositions des Etats-Unis d’Amérique concernant l’échange d’informations communément appelées le «Foreign Account Tax Compliance Act», y compris ses deux annexes ainsi que le «Memorandum
Understanding» y relatif, signés à Luxembourg le 28 mars 2014
Understanding» y relatif, signés à Luxembourg le 28 mars 2014 2. de l’échange de notes y relatives, signées les 31 mars et 1er avril 2015 – RECTIFICATIF. Au Mémorial A – 145 à la page 2985, il y a lieu d’ajouter les annexes suivantes: Mémorial A – N° 158 du 12 août 2015 3811 Mémorial A – N° 158 du 12 août 2015 3812 Mémorial A – N° 158 du 12 août 2015 3813 Mémorial A – N° 158 du 12 août 2015 3814 Mémorial A – N° 158 du 12 août 2015 3815 Mémorial A – N° 158 du 12 août 2015 3816 Mémorial A – N° 158 du 12 août 2015 3817 Mémorial A – N° 158 du 12 août 2015 3818 Mémorial A – N° 158 du 12 août 2015 3819 Mémorial A – N° 158 du 12 août 2015 3820 Mémorial A – N° 158 du 12 août 2015 3821 Mémorial A – N° 158 du 12 août 2015 3822 Mémorial A – N° 158 du 12 août 2015 3823 Mémorial A – N° 158 du 12 août 2015 3824 Mémorial A – N° 158 du 12 août 2015 3825 Mémorial A – N° 158 du 12 août 2015 3826 * Mémorial A – N° 158 du 12 août 2015 3827 Mémorial A – N° 158 du 12 août 2015 3828 Mémorial A – N° 158 du 12 août 2015 3829 with the account, the Reporting Luxembourg Financial Institution obtains, or has previously reviewed and maintains a record
section VI
this Annex I, establishing the Account Holder’s non-U.S. status. c) Where the Account Holder information contains standing instructions to transfer funds to an account maintained in the United States, the Reporting Luxembourg Financial Institution obtains, or has previously reviewed and maintains a record
section VI
this Annex I, establishing the Account Holder’s non-U.S. status. d) Where the Account Holder information contains a currently effective power
attorney or signatory authority granted to a person with a U.S. address, has an „in-care-
“ address or „hold mail“ address that is the sole address identified for the Account Holder, or has one or more U.S. telephone numbers (if a non-U.S. telephone number is also associated with the account), the Reporting Luxembourg Financial Institution obtains, or has previously reviewed and maintains a record
section VI
this Annex I, establishing the Account Holder’s non-U.S. status. C. Additional Procedures Applicable to Preexisting Individual Accounts That Are Lower Value Accounts. 1. Review
Preexisting Individual Accounts that are Lower Value Accounts for U.S. indicia must be completed by June 30, 2016. 2. If there is a change
circumstances with respect to a Preexisting Individual Account that is a Lower Value Account that results in one or more U.S. indicia described in subparagraph B
this section being associated with the account, then the Reporting Luxembourg Financial Institution must treat the account as a U.S. Reportable Account unless subparagraph B
this section applies. 3. Except for Depository Accounts described in subparagraph A
this section, any Preexisting Individual Account that has been identified as a U.S. Reportable Account under this section shall be treated as a U.S. Reportable Account in all subsequent years, unless the Account Holder ceases to be a Specified U.S. Person. D. Enhanced Review Procedures for Preexisting Individual Accounts With a Balance or Value That Exceeds $1,000,000 as
June 30, 2014, or December 31
2015 or Any Subsequent Year („High Value Accounts“). 1. Electronic Record Search. The Reporting Luxembourg Financial Institution must review electronically searchable data maintained by the Reporting Luxembourg Financial Institution for any
the U.S. indicia described in subparagraph B
this section. 2. Paper Record Search. If the Reporting Luxembourg Financial Institution’s electronically searchable databases include fields for, and capture all
the information described in, subparagraph D
this section, then no further paper record search is required. If the electronic databases do not capture all
this information, then with respect to a High Value Account, the Reporting Luxembourg Financial Institution must also review the current customer master file and, to the extent not contained in the current customer master file, the following documents associated with the account and obtained by the Reporting Luxembourg Financial Institution within the last five years for any
the U.S. indicia described in subparagraph B
this section: Mémorial A – N° 158 du 12 août 2015 3830 Mémorial A – N° 158 du 12 août 2015 3831 Mémorial A – N° 158 du 12 août 2015 3832 Mémorial A – N° 158 du 12 août 2015 3833 Mémorial A – N° 158 du 12 août 2015 3834 Financial Institution must follow the guidance in subparagraphs D
this section in the order most appropriate under the circumstances. a) For purposes
determining the Controlling Persons
an Account Holder, a Reporting Luxembourg Financial Institution may rely on information collected and maintained pursuant to AML/KYC Procedures. b) For purposes
determining whether the Account Holder is a Passive NFFE, the Reporting Luxembourg Financial Institution must obtain a self-certification (which may be on an IRS Form W-8 or W-9, or on a similar agreed form) from the Account Holder to establish its status, unless it has information in its possession or that is publicly available, based on which it can reasonably determine that the Account Holder is an Active NFFE. c) For purposes
determining whether a Controlling Person
a Passive NFFE is a U.S. citizen or resident for tax purposes, a Reporting Luxembourg Financial Institution may rely on:
a Preexisting Entity Account held by one or more NFFEs with an account balance or value that does not exceed $1,000,000; or
a Preexisting Entity Account held by one or more NFFEs with an account balance or value that exceeds $1,000,000. d) If any Controlling Person
a Passive NFFE is a U.S. citizen or resident, the account shall be treated as a U.S. Reportable Account. E. Timing
Review and Additional Procedures Applicable to Preexisting Entity Accounts. 1. Review
Preexisting Entity Accounts with an account balance or value that exceeds $250,000 as
June 30, 2014, must be completed by June 30, 2016. 2. Review
Preexisting Entity Accounts with an account balance or value that does not exceed $250,000 as
June 30, 2014, but exceeds $1,000,000 as
December 31
2015 or any subsequent year, must be completed within six months after the last day
the calendar year in which the account balance or value exceeds $1,000,000. 3. If there is a change
circumstances with respect to a Preexisting Entity Account that causes the Reporting Luxembourg Financial Institution to know, or have reason to know, that the selfcertification or other documentation associated with an account is incorrect or unreliable, the Reporting Luxembourg Financial Institution must redetermine the status
the account in accordance with the procedures set forth in paragraph D
this section. V. New Entity Accounts The following rules and procedures apply for purposes
identifying U.S. Reportable Accounts and accounts held by Nonparticipating Financial Institutions among Financial Accounts held by Entities and opened on or after July 1, 2014 („New Entity Accounts“). A. Entity Accounts Not Required to Be Reviewed, Identified or Reported. Unless the Reporting Luxembourg Financial Institution elects otherwise, either with respect to all New Entity Accounts or, separately, with respect to any clearly identified group
such accounts, where the implementing rules in Luxembourg provide for such election, a credit card account or a revolving credit facility treated as a New Entity Account is not required to be reviewed, identified, or reported, provided that the Reporting Luxembourg Financial Institution maintaining such account implements policies and procedures to prevent an account balance owed to the Account Holder that exceeds $50,000. B. Other New Entity Accounts. With respect to New Entity Accounts not described in paragraph A
this section, the Reporting Luxembourg Financial Institution must determine whether the Account Holder is: (
this section, a Reporting Luxembourg Financial Institution may determine that the Account Holder is an Active NFFE, a Luxembourg Financial Institution, or other Partner Jurisdiction Financial Institution if the Reporting Luxembourg Financial Institution reasonably determines that the Account Holder has such status on the basis
the Account Holder’s Global Intermediary Identification Number or other information that is publicly available or in the possession
the Reporting Luxembourg Financial Institution, as applicable. 2. If the Account Holder is a Luxembourg Financial Institution or other Partner Jurisdiction Financial Institution treated by the IRS as a Nonparticipating Financial Institution, then the account is not a U.S. Reportable Account, but payments to the Account Holder must be reported as contemplated in subparagraph 1(b)
the Agreement. 3. In all other cases, a Reporting Luxembourg Financial Institution must obtain a self-certification from the Account Holder to establish the Account Holder’s status. Based on the self-certification, the following rules apply:
a self-certification from the Account Holder or such person. If any such person is a U.S. citizen or resident, the Reporting Luxembourg Financial Institution must treat the account as a U.S. Reportable Account. c) if the Account Holder is: (i) a U.S. Person that is not a Specified U.S. Person; (ii) subject to subparagraph B
this section, a Luxembourg Financial Institution or other Partner Jurisdiction Financial Institution; (iii) a participating FFI, a deemed-compliant FFI, or an exempt beneficial owner, as those terms are defined in relevant U.S. Treasury Regulations; (iv) an Active NFFE; or (v) a Passive NFFE none
the Controlling Persons
which is a U.S. citizen or resident, then the account is not a U.S. Reportable Account, and no reporting is required with respect to the account. d) If the Account Holder is a Nonparticipating Financial Institution (including a Luxembourg Financial Institution or other Partner Jurisdiction Financial Institution treated by the IRS as a Nonparticipating Financial Institution), then the account is not a U.S. Reportable Account, but payments to the Account Holder must be reported as contemplated in subparagraph 1 (b)
the Agreement. VI. Special Rules and Definitions The following additional rules and definitions apply in implementing the due diligence procedures described above: A. Reliance on Self-Certifications and Documentary Evidence. A Reporting Luxembourg Financial Institution may not rely on a self-certification or documentary evidence if the Reporting Luxembourg Financial Institution knows or has reason to know that the self-certification or documentary evidence is incorrect or unreliable. B. Definitions. The following definitions apply for purposes
this Annex I. 1. AML/KYC Procedures. „AML/KYC Procedures“ means the customer due diligence procedures
a Reporting Luxembourg Financial Institution pursuant to the anti-money laundering or similar requirements
Luxembourg to which such Reporting Luxembourg Financial Institution is subject. 2. NFFE. An „NFFE“ means any Non-U.S. Entity that is not an FFI as defined in relevant U.S. Treasury Regulations or is an Entity described in subparagraph B
this section, and also Mémorial A – N° 158 du 12 août 2015 3836 includes any Non-U.S. Entity that is established in Luxembourg or another Partner Jurisdiction and that is not a Financial Institution. 3. Passive NFFE. A „Passive NFFE“ means any NFFE that is not (
the following criteria: a) Less than 50 percent
the NFFE’s gross income for the preceding calendar year or other appropriate reporting period is passive income and less than 50 percent
the assets held by the NFFE during the preceding calendar year or other appropriate reporting period are assets that produce or are held for the production
passive income; b) The stock
the NFFE is regularly traded on an established securities market or the NFFE is a Related Entity
an Entity the stock
which is regularly traded on an established securities market; c) The NFFE is organized in a U.S. Territory and all
the owners
the payee are bona fide residents
that U.S. Territory; d) The NFFE is a government (other than the U.S. government), a political subdivision
such government (which, for the avoidance
doubt, includes a state, province, county, or municipality), or a public body performing a function
such government or a political subdivision thereof, a government
a U.S. Territory, an international organization, a non-U.S. central bank
issue, or an Entity wholly owned by one or more
the foregoing; e) Substantially all
the activities
the NFFE consist
holding (in whole or in part) the outstanding stock
, or providing financing and services to, one or more subsidiaries that engage in trades or businesses other than the business
a Financial Institution, except that an Entity shall not qualify for NFFE status if the Entity functions (or holds itself out) as an investment fund, such as a private equity fund, venture capital fund, leveraged buyout fund, or any investment vehicle whose purpose is to acquire or fund companies and then hold interests in those companies as capital assets for investment purposes; f) The NFFE is not yet operating a business and has no prior operating history, but is investing capital into assets with the intent to operate a business other than that
a Financial Institution, provided that the NFFE shall not qualify for this exception after the date that is 24 months after the date
the initial organization
the NFFE; g) The NFFE was not a Financial Institution in the past five years, and is in the process
liquidating its assets or is reorganizing with the intent to continue or recommence operations in a business other than that
a Financial Institution; h) The NFFE primarily engages in financing and hedging transactions with, or for, Related Entities that are not Financial Institutions, and does not provide financing or hedging services to any Entity that is not a Related Entity, provided that the group
any such Related Entities is primarily engaged in a business other than that
a Financial Institution;
the following requirements: i. It is established and operated in its jurisdiction
residence exclusively for religious, charitable, scientific, artistic, cultural, athletic, or educational purposes; or it is established and operated in its jurisdiction
residence and it is a professional organization, business league, chamber
commerce, labor organization, agricultural or horticultural organization, civic league or an organization operated exclusively for the promotion
social welfare; ii. It is exempt from income tax in its jurisdiction
residence; iii. It has no shareholders or members who have a proprietary or beneficial interest in its income or assets; iv. The applicable laws
the NFFE’s jurisdiction
residence or the NFFE’s formation documents do not permit any income or assets
the NFFE to be distributed to, or applied for the benefit
, a private person or non-charitable Entity other than pursuant to the conduct
the NFFE’s charitable activities, or as payment
reasonable compensation Mémorial A – N° 158 du 12 août 2015 3837 for services rendered, or as payment representing the fair market value
property which the NFFE has purchased; and v. The applicable laws
the NFFE’s jurisdiction
residence or the NFFE’s formation documents require that, upon the NFFE’s liquidation or dissolution, all
its assets be distributed to a governmental entity or other non-profit organization, or escheat to the government
the NFFE’s jurisdiction
residence or any political subdivision thereof. 5. Preexisting Account. A „Preexisting Account“ means a Financial Account maintained by a Reporting Financial Institution as
June 30,
Individual Accounts. For purposes
determining the aggregate balance or value
Financial Accounts held by an individual, a Reporting Luxembourg Financial Institution is required to aggregate all Financial Accounts maintained by the Reporting Luxembourg Financial Institution, or by a Related Entity, but only to the extent that the Reporting Luxembourg Financial Institution’s computerized systems link the Financial Accounts by reference to a data element such as client number or taxpayer identification number, and allow account balances or values to be aggregated. Each holder
a jointly held Financial Account shall be attributed the entire balance or value
the jointly held Financial Account for purposes
applying the aggregation requirements described in this paragraph 1. 2. Aggregation
Entity Accounts. For purposes
determining the aggregate balance or value
Financial Accounts held by an Entity, a Reporting Luxembourg Financial Institution is required to take into account all Financial Accounts that are maintained by the Reporting Luxembourg Financial Institution, or by a Related Entity, but only to the extent that the Reporting Luxembourg Financial Institution’s computerized systems link the Financial Accounts by reference to a data element such as client number or taxpayer identification number, and allow account balances or values to be aggregated. 3. Special Aggregation Rule Applicable to Relationship Managers. For purposes
determining the aggregate balance or value
Financial Accounts held by a person to determine whether a Financial Account is a High Value Account, a Reporting Luxembourg Financial Institution is also required, in the case
any Financial Accounts that a relationship manager knows, or has reason to know, are directly or indirectly owned, controlled, or established (other than in a fiduciary capacity) by the same person, to aggregate all such accounts. 4. Currency Translation Rule. For purposes
determining the balance or value
Financial Accounts denominated in a currency other than the U.S. dollar, a Reporting Luxembourg Financial Institution must convert the U.S. dollar threshold amounts described in this Annex I into such currency using a published spot rate determined as
the last day
the calendar year preceding the year in which the Reporting Luxembourg Financial Institution is determining the balance or value. D. Documentary Evidence. For purposes
this Annex I, acceptable documentary evidence includes any
the following: 1. A certificate
residence issued by an authorized government body (for example, a government or agency thereof, or a municipality)
the jurisdiction in which the payee claims to be a resident.
ficial documentation issued by an authorized government body (for example, a government or agency thereof, or a municipality) that includes the name
the Entity and either the address
its principal
fice in the jurisdiction (or U.S. Territory) in which it claims to be a resident or the jurisdiction (or U.S. Territory) in which the Entity was incorporated or organized. 4. With respect to a Financial Account maintained in a jurisdiction with anti-money laundering rules that have been approved by the IRS in connection with a QI agreement (as described in Mémorial A – N° 158 du 12 août 2015 3838 relevant U.S. Treasury Regulations), any
the documents, other than a Form W-8 or W-9, referenced in the jurisdiction’s attachment to the QI agreement for identifying individuals or Entities. 5. Any financial statement, third-party credit report, bankruptcy filing, or U.S. Securities and Exchange Commission report. E. Alternative Procedures for Financial Accounts Held by Individual Beneficiaries
a Cash Value Insurance Contract. A Reporting Luxembourg Financial Institution may presume that an individual beneficiary (other than the owner)
a Cash Value Insurance Contract receiving a death benefit is not a Specified U.S. Person and may treat such Financial Account as other than a U.S. Reportable Account unless the Reporting Luxembourg Financial Institution has actual knowledge, or reason to know, that the beneficiary is a Specified U.S. Person. A Reporting Luxembourg Financial Institution has reason to know that a beneficiary
a Cash Value Insurance Contract is a Specified U.S. Person if the information collected by the Reporting Luxembourg Financial Institution and associated with the beneficiary contains U.S. indicia as described in subparagraph (B)
section II
this Annex I. If a Reporting Luxembourg Financial Institution has actual knowledge, or reason to know, that the beneficiary is a Specified U.S. Person, the Reporting Luxembourg Financial Institution must follow the procedures in subparagraph B
section II
this Annex I. F. Reliance on Third Parties. Regardless
whether an election is made under paragraph C
section I
this Annex I, Luxembourg may permit Reporting Luxembourg Financial Institutions to rely on due diligence procedures performed by third parties, to the extent provided in relevant U.S. Treasury Regulations. * ANNEX II The following Entities shall be treated as exempt beneficial owners or deemed-compliant FFIs, as the case may be, and the following accounts are excluded from the definition
Financial Accounts. This Annex II may be modified by a mutual written decision entered into between the Competent Authorities
Luxembourg and the United States:
being used by U.S. Persons to evade U.S. tax and that have similar characteristics to the Entities and accounts described in this Annex II as
the date
signature
the Agreement; or
being used by U.S. Persons to evade U.S. tax. Any such addition or removal shall be effective on the date
signature
the mutual decision, unless otherwise provided therein. Procedures for reaching such a mutual decision may be included in the mutual agreement or arrangement described in paragraph 6
the Agreement. I. Exempt Beneficial Owners other than Funds The following Entities shall be treated as Non-Reporting Luxembourg Financial Institutions and as exempt beneficial owners for purposes
sections 1471 and 1472
the U.S. Internal Revenue Code, other than with respect to a payment that is derived from an obligation held in connection with a commercial financial activity
a type engaged in by a Specified Insurance Company, Custodial Institution, or Depository Institution. A. Governmental Entity. The government
Luxembourg, any political subdivision
Luxembourg (which, for the avoidance
doubt, includes a state, province, county, or municipality), or any wholly owned agency or instrumentality
Luxembourg or any one or more
the foregoing (each, a „Luxembourg Governmental Entity“), including the Luxembourg Government’s treasury department, currently known as Trésorerie de l’Etat, acting either in this capacity or, as the case may be, as consignment
fice (Caisse de consignation) by virtue
the Law
29 April 1999 on consignments with the Mémorial A – N° 158 du 12 août 2015 3839 State (Loi du 29 avril 1999 sur les consignations auprès de l’Etat). This category is comprised
the integral parts, controlled entities, and political subdivisions
Luxembourg. 1. An integral part
Luxembourg means any person, organization, agency, bureau, fund, instrumentality, or other body, however designated, that constitutes a governing authority
Luxembourg. The net earnings
the governing authority must be credited to its own account or to other accounts
Luxembourg, with no portion inuring to the benefit
any private person. An integral part does not include any individual who is a sovereign,
ficial, or administrator acting in a private or personal capacity. 2. A controlled entity means an Entity that is separate in form from Luxembourg or that otherwise constitutes a separate juridical entity, provided that:
one or more Luxembourg Governmental Entities, with no portion
its income inuring to the benefit
any private person; and c) The Entity’s assets vest in one or more Luxembourg Governmental Entities upon dissolution. 3. Income does not inure to the benefit
private persons if such persons are the intended beneficiaries
a governmental program, and the program activities are performed for the general public with respect to the common welfare or relate to the administration
some phase
government. Notwithstanding the foregoing, however, income is considered to inure to the benefit
private persons if the income is derived from the use
a governmental entity to conduct a commercial business, such as a commercial banking business, that provides financial services to private persons. B. International Organization. Any international organization or wholly owned agency or instrumentality thereof. This category includes any intergovernmental organization (including a supranational organization)
non-U.S. governments;
which does not inure to the benefit
private persons. C. Central Bank. A bank that is by law or government sanction the principal authority, other than the government
Luxembourg itself, issuing instruments intended to circulate as currency. A central bank may include an instrumentality that is separate from the government
Luxembourg, whether or not owned in whole or in part by Luxembourg. II. Funds that Qualify as Exempt Beneficial Owners The following Entities shall be treated as Non-Reporting Luxembourg Financial Institutions and as exempt beneficial owners for purposes
sections 1471 and 1472
the U.S. Internal Revenue Code. A. Luxembourg Retirement Funds. 1. Pension savings companies with variable capital (sociétés d’épargne-pension à capital variable – SEPCAV) subject to the supervision
the Commission de surveillance du secteur financier („CSSF“) and incorporated by virtue
the Law
13 July 2005 relating to institutions for occupational retirement provisions in the form
pension savings companies with variable capital (sepcav) and pension savings associations (assep), as amended (Loi du 13 juillet 2005 relative aux institutions de retraite professionnelle sous forme de société d’épargne-pension à capital variable (sepcav) et d’association d’épargne-pension (assep), telle que modifiée) (the „2005 Law“); 2. Pension savings associations (associations d’épargne-pension – ASSEP) subject to the supervision
the CSSF and incorporated by virtue
the 2005 Law; Mémorial A – N° 158 du 12 août 2015 3840 3. Pension funds (fonds de pension) subject to the supervision
the Luxembourg insurance Control Authority (Commissariat aux assurances). B. Investment Entity Wholly Owned by Exempt Beneficial Owners. An Entity that is a Luxembourg Financial Institution solely because it is an Investment Entity, provided that each direct holder
an Equity Interest in the Entity is an exempt beneficial owner, and each direct holder
a debt interest in such Entity is either a Depository Institution (with respect to a loan made to such Entity) or an exempt beneficial owner. III. Small or Limited Scope Financial Institutions that Qualify as Deemed-Compliant FFIs. The following Financial Institutions are Non-Reporting Luxembourg Financial Institutions that shall be treated as deemed-compliant FFIs for purposes
section 1471
the U.S. Internal Revenue Code. A. Financial Institution with a Local Client Base. A Financial Institution satisfying the following requirements: 1. The Financial Institution must be licensed and regulated as a financial institution under the laws
Luxembourg; 2. The Financial Institution must have no fixed place
business outside
Luxembourg. For this purpose, a fixed place
business does not include a location that is not advertised to the public and from which the Financial Institution performs solely administrative support functions; 3. The Financial Institution must not solicit customers or Account Holders outside Luxembourg. For this purpose, a Financial Institution shall not be considered to have solicited customers or Account Holders outside Luxembourg merely because the Financial Institution (
Luxembourg to identify resident Account Holders for purposes
either information reporting or withholding
tax with respect to Financial Accounts held by residents or for purposes
satisfying Luxembourg’s AML due diligence requirements; 5. At least 98 percent
the Financial Accounts by value maintained by the Financial Institution must be held by residents (including residents that are Entities)
Luxembourg, a Member State
the European Union, or Switzerland; 6. Beginning on or before July 1, 2014, the Financial Institution must have policies and procedures, consistent with those set forth in Annex I, to prevent the Financial Institution from providing a Financial Account to any Nonparticipating Financial Institution and to monitor whether the Financial Institution opens or maintains a Financial Account for any Specified U.S. Person who is not a resident
Luxembourg (including a U.S. Person that was a resident
Luxembourg when the Financial Account was opened but subsequently ceases to be a resident
Luxembourg) or any Passive NFFE with Controlling Persons who are U.S. residents or U.S. citizens who are not residents
Luxembourg; 7. Such policies and procedures must provide that if any Financial Account held by a Specified U.S. Person or Passive NFFE with Controlling Persons who are U.S. residents or U.S. citizens who are not residents
Luxembourg is identified, the Financial Institution must report such Financial Account as would be required if the Financial Institution were a Reporting Luxembourg Financial Institution (including by following the registration requirements applicable to Reporting Luxembourg Financial Institutions) or close such Financial Account; Mémorial A – N° 158 du 12 août 2015 3841 8. With respect to a Preexisting Account held by an individual who is not a resident
Luxembourg or by an Entity, the Financial Institution must review those Preexisting Accounts in accordance with the procedures set forth in Annex I applicable to Preexisting Accounts to identify any U.S. Reportable Account or Financial Account held by a Nonparticipating Financial Institution, and must report such Financial Account as would be required if the Financial Institution were a Reporting Luxembourg Financial Institution (including by following the registration requirements applicable to Reporting Luxembourg Financial Institutions) or close such Financial Account; 9. Each Related Entity
the Financial Institution that is a Financial Institution must be incorporated or organized in Luxembourg and, with the exception
any Related Entity that is a retirement fund described in paragraphs A through D
section II
this Annex II, satisfy the requirements set forth in this paragraph A; and 10. The Financial Institution must not have policies or practices that discriminate against opening or maintaining Financial Accounts for individuals who are Specified U.S. Persons and residents
Luxembourg. B. Local Bank. A Financial Institution satisfying the following requirements: 1. The Financial Institution operates solely as (and is licensed and regulated under the laws
Luxembourg
receiving deposits from and making loans to, with respect to a bank, unrelated retail customers and, with respect to a credit union or similar cooperative credit organization, members, provided that no member has a greater than five percent interest in such credit union or cooperative; 3. The Financial Institution satisfies the requirements set forth in subparagraphs A
this section, provided that, in addition to the limitations on the website described in subparagraph A
this section, the website does not permit the opening
a Financial Account;
any Related Entity that is a retirement fund described in paragraphs A through D
section II
this Annex II or a Financial Institution with only low-value accounts described in paragraph C
this section, must satisfy the requirements set forth in this paragraph B. C. Financial Institution with Only Low-Value Accounts. A Luxembourg Financial Institution satisfying the following requirements:
$50,000, applying the rules set forth in Annex I for account aggregation and currency translation; and
credit cards that accepts deposits only when a customer makes a payment in excess
a balance due with respect to the card and the overpayment is not immediately returned to the customer; and 2. Beginning on or before July 1, 2014, the Financial Institution implements policies and procedures to either prevent a customer deposit in excess
$50,000, or to ensure that any customer Mémorial A – N° 158 du 12 août 2015 3842 deposit in excess
$50,000, in each case applying the rules set forth in Annex I for account aggregation and currency translation, is refunded to the customer within 60 days. For this purpose, a customer deposit does not refer to credit balances to the extent
disputed charges but does include credit balances resulting from merchandise returns. E. Banks Issuing Covered Bonds. A Luxembourg Financial Institution (banques d’émission de lettres de gage) that is established by virtue
the Law
21 November 1997 on banks issuing covered bonds (loi du 21 novembre 1997 relative aux banques d’émission de lettres de gage) satisfying the following requirements: 1. The Financial Institution is licensed and regulated under the laws
Luxembourg; and 2. The Financial Institution’s sole business activity is to issue covered bond directly to other entities that are exempt beneficial owners, Active NFFEs described in subparagraph B
section VI
Annex I, U.S. Persons that are not Specified U.S. Persons, or Financial Institutions that are not Nonparticipating Financial Institutions. IV. Investment Entities that Qualify as Deemed-Compliant FFIs and Other Special Rules The Financial Institutions described in paragraphs A through D
this section are Non-Reporting Luxembourg Financial Institutions that shall be treated as deemed-compliant FFIs for purposes
section 1471
the U.S. Internal Revenue Code. In addition, paragraph E
this section provides special rules applicable to an Investment Entity. A. Sponsored Investment Entity and Controlled Foreign Corporation. A Financial Institution described in subparagraph A
this section having a sponsoring entity that complies with the requirements
subparagraph A
this section. 1. A Financial Institution is a sponsored investment entity if (
Luxembourg that is not a qualified intermediary, withholding foreign partnership, or withholding foreign trust pursuant to relevant U.S. Treasury Regulations; (b) the Financial Institution is wholly owned, directly or indirectly, by a Reporting U.S. Financial Institution that agrees to act, or requires an affiliate
the Financial Institution to act, as a sponsoring entity for the Financial Institution; and (c) the Financial Institution shares a common electronic account system with the sponsoring entity that enables the sponsoring entity to identify all Account Holders and payees
the Financial Institution and to access all account and customer information maintained by the Financial Institution including, but not limited to, customer identification information, customer documentation, account balance, and all payments made to the Account Holder or payee. 3. The sponsoring entity complies with the following requirements: a) The sponsoring entity is authorized to act on behalf
the Financial Institution (such as a fund manager, trustee, corporate director, or managing partner) to fulfill applicable registration requirements; b) The sponsoring entity has registered as a sponsoring entity pursuant to applicable registration requirements; 1 A „controlled foreign corporation“ means any foreign corporation if more than 50 percent
the total combined voting power
all classes
stock
such corporation entitled to vote, or the total value
the stock
such corporation, is owned, or is considered as owned, by „United States shareholders“ on any day during the taxable year
such foreign corporation. The term a „United States shareholder“ means, with respect to any foreign corporation, a United States person who owns, or is considered as owning, 10 percent or more
the total combined voting power
all classes
stock entitled to vote
such foreign corporation. Mémorial A – N° 158 du 12 août 2015 3843 c) If the sponsoring entity identifies any U.S. Reportable Accounts with respect to the Financial Institution, the sponsoring entity registers the Financial Institution pursuant to applicable registration requirements on or before the later
December 31, 2015 and the date that is 90 days after such a U.S. Reportable Account is first identified; d) The sponsoring entity agrees to perform, on behalf
the Financial Institution, all due diligence, withholding, reporting, and other requirements that the Financial Institution would have been required to perform if it were a Reporting Luxembourg Financial Institution; e) The sponsoring entity identifies the Financial Institution and includes the identifying number
the Financial Institution (obtained by following applicable registration requirements) in all reporting completed on the Financial Institution’s behalf; and f) The sponsoring entity has not had its status as a sponsor revoked. B. Sponsored, Closely Held Investment Vehicle. A Luxembourg Financial Institution satisfying the following requirements:
the Financial Institution (such as a professional manager, trustee, or managing partner), and agrees to perform, on behalf
the Financial Institution, all due diligence, withholding, reporting, and other requirements that the Financial Institution would have been required to perform if it were a Reporting Luxembourg Financial Institution; 3. The Financial Institution does not hold itself out as an investment vehicle for unrelated parties; 4. Twenty or fewer individuals own all
the debt interests and Equity Interests in the Financial Institution (disregarding debt interests owned by Participating FFIs and deemed-compliant FFIs and Equity Interests owned by an Entity if that Entity owns 100 percent
the Equity Interests in the Financial Institution and is itself a sponsored Financial Institution described in this paragraph B); and 5. The sponsoring entity complies with the following requirements:
the Financial Institution, all due diligence, withholding, reporting, and other requirements that the Financial Institution would have been required to perform if it were a Reporting Luxembourg Financial Institution and retains documentation collected with respect to the Financial Institution for a period
six years;
, or
, a customer for the purposes
investing, managing, or administering funds deposited in the name
the customer with a Financial Institution other than a Nonparticipating Financial Institution. D. Collective Investment Vehicle. An Investment Entity established in Luxembourg that is regulated as a collective investment vehicle, provided that all
the interests in the collective investment vehicle (including debt interests in excess
$50,000) are held by or through one or more exempt beneficial owners, Active NFFEs described in subparagraph B
section VI
Annex I, U.S. Persons that are not Specified U.S. Persons, or Financial Institutions that are not Nonparticipating Financial Institutions. Mémorial A – N° 158 du 12 août 2015 3844 E. Special Rules. The following rules apply to an Investment Entity: 1. With respect to interests in an Investment Entity that is a collective investment vehicle described in paragraph D
this section, the reporting obligations
any Investment Entity (other than a Financial Institution through which interests in the collective investment vehicle are held) shall be deemed fulfilled. 2. With respect to interests in: a) An Investment Entity established in a Partner Jurisdiction that is regulated as a collective investment vehicle, all
the interests in which (including debt interests in excess
$50,000) are held by or through one or more exempt beneficial owners, Active NFFEs described in subparagraph B
section VI
Annex I, U.S. Persons that are not Specified U.S. Persons, or Financial Institutions that are not Nonparticipating Financial Institutions; or b) An Investment Entity that is a qualified collective investment vehicle under relevant U.S. Treasury Regulations; the reporting obligations
any Investment Entity that is a Luxembourg Financial Institution (other than a Financial Institution through which interests in the collective investment vehicle are held) shall be deemed fulfilled. 3. With respect to interests in an Investment Entity established in Luxembourg that is not described in paragraph D or subparagraph E
this section, consistent with paragraph 3
the Agreement, the reporting obligations
all other Investment Entities with respect to such interests shall be deemed fulfilled if the information required to be reported by the first-mentioned Investment Entity pursuant to the Agreement with respect to such interests is reported by such Investment Entity or another person. 4. An Investment Entity established in Luxembourg that is regulated as a investment vehicle shall not fail to qualify under paragraph D or subparagraph E
this section, or otherwise as a deemed-compliant FFI, solely because the collective investment vehicle has issued physical interests in bearer form, provided that:
the Agreement) performs the due diligence procedures set forth in Annex I and reports any information required to be reported pursuant to the Agreement with respect to any such shares when such shares are presented for redemption or other payment; and d) The collective investment vehicle has in place policies and procedures to ensure that such shares are redeemed or immobilized as soon as possible, and in any event prior to January 1, 2017. 5. With respect to an Investment Entity established in Luxembourg and that is not otherwise described in this section IV, it is understood that the category
Restricted Funds under the relevant U.S. Treasury regulations shall be interpreted consistently with the following rules: a) The Investment Entity will be considered regulated as an investment fund under the laws
Luxembourg if the manager is regulated with respect to the fund in Luxembourg or another EU Member State; b) A Subscription or Application Form shall be considered a distribution agreement, which is a contractual arrangement that governs the distribution
debt or equity interest in the Investment Entity; c) The distribution agreement will be treated as prohibiting sales and other transfers
debt or equity interests in the Investment Entity (other than interests that are both distributed by and held through a participating FFI) to specified U.S. persons, non-participating FFIs, or passive NFFEs with one or more substantial U.S. owners, if the agreement includes an explicit obligation to comply with the Investment Entity’s prospectus and the Investment Entity’s prospectus includes an explicit prohibition
sale and other transfer
debt or equity interests in the Investment Entity (other than interests that are both distributed by and held through a participating FFI) to specified U.S. persons, non-participating FFIs, or passive NFFEs with one or more substantial U.S. owners; and Mémorial A – N° 158 du 12 août 2015 3845 d) The distribution agreement will be treated as requiring the distributor to notify the Investment Entity
a change in the distributor’s chapter 4 status within 90 days
the change, if the agreement includes an explicit obligation to comply with the Investment Entity’s prospectus and the Investment Entity’s prospectus requires the distributor to notify the Investment Entity
a change in the distributor’s chapter 4 status within 90 days
the change. V. Accounts Excluded from Financial Accounts The following accounts are excluded from the definition
Financial Accounts and therefore are not treated as U.S. Reportable Accounts. A. Certain Savings Accounts. 1. Retirement and Pension Account. A retirement or pension account maintained in Luxembourg that satisfies the following requirements under the laws
Luxembourg. a) The account is subject to regulation as a personal retirement account or is part
a registered or regulated retirement or pension plan for the provision
retirement or pension benefits (including disability or death benefits); b) The account is tax-favored (i.e., contributions to the account that would otherwise be subject to tax under the laws
Luxembourg are deductible or excluded from the gross income
the account holder or taxed at a reduced rate, or taxation
investment income from the account is deferred or taxed at a reduced rate);
employment, or penalties apply to withdrawals made before such specified events; and
$1,000,000 or less, in each case applying the rules set forth in Annex I for account aggregation and currency translation. 2. Non-Retirement Savings Accounts. An account maintained in Luxembourg (other than an insurance or Annuity Contract) that satisfies the following requirements under the laws
Luxembourg.
Luxembourg are deductible or excluded from the gross income
the account holder or taxed at a reduced rate, or taxation
investment income from the account is deferred or taxed at a reduced rate); c) Withdrawals are conditioned on meeting specific criteria related to the purpose
the savings account (for example, the provision
educational or medical benefits), or penalties apply to withdrawals made before such criteria are met; and d) Annual contributions are limited to $50,000 or less, applying the rules set forth in Annex I for account aggregation and currency translation. B. Certain Term Life Insurance Contracts. A life insurance contract maintained in Luxembourg with a coverage period that will end before the insured individual attains age 90, provided that the contract satisfies the following requirements:
the contract cannot exceed the aggregate premiums paid for the contract, less the sum
mortality, morbidity, Mémorial A – N° 158 du 12 août 2015 3846 and expense charges (whether or not actually imposed) for the period or periods
the contract’s existence and any amounts paid prior to the cancellation or termination
the contract; and 4. The contract is not held by a transferee for value. C. Account Held By an Estate. An account maintained in Luxembourg that is held solely by an estate if the documentation for such account includes a copy
the deceased’s will or death certificate. D. Escrow Accounts. An account maintained in Luxembourg established in connection with any
the following:
real or personal property, provided that the account satisfies the following requirements: a) The account is funded solely with a down payment, earnest money, deposit in an amount appropriate to secure an obligation directly related to the transaction, or a similar payment, or is funded with a financial asset that is deposited in the account in connection with the sale, exchange, or lease
the property; b) The account is established and used solely to secure the obligation
the purchaser to pay the purchase price for the property, the seller to pay any contingent liability, or the lessor or lessee to pay for any damages relating to the leased property as agreed under the lease; c) The assets
the account, including the income earned thereon, will be paid or otherwise distributed for the benefit
the purchaser, seller, lessor, or lessee (including to satisfy such person’s obligation) when the property is sold, exchanged, or surrendered, or the lease terminates; d) The account is not a margin or similar account established in connection with a sale or exchange
a financial asset; and e) The account is not associated with a credit card account. 3. An obligation
a Financial Institution servicing a loan secured by real property to set aside a portion
a payment solely to facilitate the payment
taxes or insurance related to the real property at a later time. 4. An obligation
a Financial Institution solely to facilitate the payment
taxes at a later time. E. Non-Proprietary Accounts Held by Property Managers. An account maintained in Luxembourg that is a non-proprietary account held by a property manager (syndics de copropriété) appointed by virtue
the Loi modifiée du 16 mai 1975 portant statut sur la copropriété des immeubles bâtis. F. Partner Jurisdiction Accounts. An account maintained in Luxembourg and excluded from the definition
Financial Account under an agreement between the United States and another Partner Jurisdiction to facilitate the implementation
FATCA, provided that such account is subject to the same requirements and oversight under the laws
such other Partner Jurisdiction as if such account were established in that Partner Jurisdiction and maintained by a Partner Jurisdiction Financial Institution in that Partner Jurisdiction. VI. Definitions The following additional definitions shall apply to the descriptions above: A. Reporting Model 1 FFI. The term Reporting Model 1 FFI means a Financial Institution with respect to which a non-U.S. government or agency thereof agrees to obtain and exchange information pursuant to a Model 1 IGA, other than a Financial Institution treated as a Nonparticipating Financial Institution under the Model 1 IGA. For purposes
this definition, the term Model 1 IGA means an arrangement Mémorial A – N° 158 du 12 août 2015 3847 between the United States or the Treasury Department and a non-U.S. government or one or more agencies thereof to implement FATCA through reporting by Financial Institutions to such non U.S. government or agency thereof, followed by automatic exchange
such reported information with the IRS. B. Participating FFI. The term Participating FFI means a Financial Institution that has agreed to comply with the requirements
an FFI Agreement, including a Financial Institution described in a Model 2 IGA that has agreed to comply with the requirements
an FFI Agreement. The term Participating FFI also includes a qualified intermediary branch
a Reporting U.S. Financial Institution, unless such branch is a Reporting Model 1 FFI. For purposes
this definition, the term FFI Agreement means an agreement that sets forth the requirements for a Financial Institution to be treated as complying with the requirements
section 1471(b)
the U.S. Internal Revenue Code. In addition, for purposes
this definition, the term Model 2 IGA means an arrangement between the United States or the Treasury Department and a non-U.S. government or one or more agencies thereof to facilitate the implementation
FATCA through reporting by Financial Institutions directly to the IRS in accordance with the requirements
an FFI Agreement, supplemented by the exchange
information between such non-U.S. government or agency thereof and the IRS. * Mémorial A – N° 158 du 12 août 2015 3848 MEMORANDUM
UNDERSTANDING regarding the Agreement between the Government
the Grand Duchy
Luxembourg and the Government
the United States
America to Improve International Tax Compliance and with respect to the United States information reporting provisions commonly known as the Foreign Account Tax Compliance Act At the signing today
the Agreement between the Government
the Grand Duchy
Luxembourg and the Government
the United States
America to Improve International Tax Compliance and with respect to the United States information reporting provisions commonly known as the Foreign Account Tax Compliance Act (hereinafter the „Agreement“), the representatives
the Grand Duchy
Luxembourg and United States
America wish to confirm their understanding
the following: In reference to paragraph 1
(Term
the Agreement)
the Agreement: As
the date
signature
the Agreement, the United States Department
the Treasury intends to treat each Luxembourg Financial Institution, as that term is defined in the Agreement, as complying with, and not subject to withholding under section 1471
the U.S. Internal Revenue Code during such time as the Grand Duchy
Luxembourg is pursuing the necessary internal procedures for entry into force
the Agreement. The United States further understands that the Grand Duchy
Luxembourg intends to contact the United States as soon as it is aware that there might be a delay in the Luxembourg internal approval process for entry into force
the Agreement such that the Grand Duchy
Luxembourg would not be able to provide its notification under paragraph 1
the Agreement prior to September 30, 2015. If upon consultation with the Grand Duchy
Luxembourg, the United States Department
the Treasury receives credible assurances that such a delay is likely to be resolved in a reasonable period
time, the United States Department
the Treasury may decide to continue to apply FATCA to Luxembourg Financial Institutions in the manner described above as long as the United States Department
the Treasury assesses that the Grand Duchy
Luxembourg is likely to be able to send its notification under paragraph 1
It is understood that should the Agreement enter into force after September 30, 2015, any information that would have been reportable under the Agreement thereafter (and prior to its entry into force) had the Agreement been in force by September 30, 2015, is owed on the September 30 next following the date
entry into force. In reference to subparagraph 2(a)
(Obligations to Obtain and Exchange Information with Respect to Reportable Accounts)
the Agreement: It is understood that the Grand Duchy
Luxembourg intends for each Reporting Luxembourg Financial Institution to use a Global Intermediary Identification Number („GIIN“) issued by the Internal Revenue Service as the identifying number referenced in Subparagraph 2(a)
the Agreement. In reference to subparagraph 1(c)
(Application
FATCA to Luxembourg Financial Institutions)
the Agreement It is understood that Grand Duchy
Luxembourg intends for Luxembourg Financial Institutions to comply with the registration requirements applicable to Financial Institutions in Partner Jurisdictions by registering with the Internal Revenue Service and obtaining a GIIN from the Internal Revenue Service. Mémorial A – N° 158 du 12 août 2015 3849 Signed at Luxembourg, in duplicate, in the English language, this 28 day
march, 2014. A French language text is to be prepared, which is to be considered equally
ficial upon an exchange
letters between the United States
America and the Grand Duchy
Luxembourg confirming its conformity with the English language text. For the government
the Grand Duchy
Luxembourg, (signature) For the government
the United States
America, (signature) * Mémorial A – N° 158 du 12 août 2015 3850 ECHANGES DE NOTES VERBALES NOTE VERBALE The Embassy
the Grand Duchy
Luxembourg presents its compliments to the Department
State
the United States
America and refers to the Agreement between the Government
the United States
America and the Government
the Grand Duchy
Luxembourg to Improve International Tax Compliance and with respect to the United States information reporting provisions commonly known as the Foreign Account Tax Compliance Act, signed at Luxembourg on March 28, 2014, which is not yet in force („the Agreement“). In that connection, the Embassy proposes the following modifications to the English version
the Agreement: 1. The second Whereas clause
the Agreement shall be deleted and replaced with: „Whereas, the Convention on Mutual Administrative Assistance in Tax Matters (the „Convention“), done at Strasbourg on January 25, 1988, authorizes the exchange
information for tax purposes, including on an automatic basis (hereinafter the „Convention“ refers to the Convention and any amendments thereto that are in force for both Parties);“. 2. The third Whereas clause
the Agreement shall be deleted. 3. In the eleventh Whereas clause
the Agreement, the phrase „ , as amended by the Protocol“ shall be deleted in all places it appears in the Whereas clause. 4. In Paragraph 1
the Agreement, the phrase „Article 28
the Convention, as amended by the Protocol“ shall be deleted and replaced with „Article 6
the Convention“. 5. In Paragraph 6
the Agreement, the phrase „Article 27
the Convention, as amended by the Protocol“ shall be deleted and replaced with „Article 24
the Convention“. 6. In Paragraph 7
the Agreement, the phrase „as amended by the Protocol,“ shall be deleted. 7. In Paragraph 1
the Agreement, the paragraph shall be deleted and replaced with: „1. This Agreement shall enter into force on the date
Luxembourg’s written notification, through diplomatic channels, to the United States that Luxembourg has completed its necessary internal procedures for entry into force
this Agreement.“. Correspondingly, the Embassy
the Grand Duchy
Luxembourg has the honor to propose the following modifications to the French version
the Agreement: 1. The second Whereas clause
the Agreement shall be deleted and replaced with: „Considérant que la Convention concernant l’assistance administrative mutuelle en matière fiscale (la „Convention“), faite à Strasbourg le 25 janvier 1988, autorise l’échange d’informations à des fins fiscales, y compris sur une base automatique (ci-après la „Convention“ désigne la Convention et toutes les modifications s’y rapportant qui sont en vigueur pour les deux Parties);“. 2. The third Whereas clause
the Agreement shall be deleted. 3. In the eleventh Whereas clause
the Agreement, the phrase „ , telle qu’amendée par le Protocole“ shall be deleted in all places it appears in the Whereas clause. 4. In Paragraph 1
the Agreement, the phrase „l’Article 28 de la Convention, telle qu’amendée par le Protocole“ shall be deleted and replaced with „l’Article 6 de la Convention“. 5. In Paragraph 6
the Agreement, the phrase „l’Article 27 de la Convention, tel qu’amendée par le Protocole“ shall be deleted and replaced with „l’Article 24 de la Convention“. 6. In Paragraph 7
the Agreement, the phrase „telle qu’amendée par le Protocole“ shall be deleted. 7. In Paragraph 1
the Agreement, the paragraph shall be deleted and replaced with: „1. Le présent Accord entrera en vigueur à la date de la notification écrite, par la voie diplomatique, du Luxembourg aux Etats-Unis stipulant que le Luxembourg a achevé les procédures internes nécessaires pour l’entrée en vigueur du présent Accord.“. If the foregoing is acceptable to the Government
the United States
America, the Embassy further proposes that the present note and the Department’s affirmative note in reply shall constitute an agreement between the Government
the Grand Duchy
Luxembourg and the Government
Mémorial A – N° 158 du 12 août 2015 3851 the United States
America modifying the Agreement and that this modifying agreement shall enter into force on the date
the Department’s reply. The Embassy avails itself
this opportunity to renew to the Department the assurances
its highest consideration. Washington DC, the 31st
March 2015. United States Department
State
fice
the Secretary
State Washington, DC * The Department
State acknowledges receipt
Note Verbale No. NV 71-15, dated March 31, 2015, from the Embassy
the Grand Duchy
Luxembourg regarding the Agreement between the Government
the United States
America and the Government
the Grand Duchy
Luxembourg to Improve International Tax Compliance and with respect to the United States information reporting provisions commonly known as the Foreign Account Tax Compliance Act, signed at Luxembourg on March 28, 2014, which is not yet in force („the Agreement“), which note reads as follows: The Embassy
the Grand Duchy
Luxembourg presents its compliments to the Department
State
the United States
America and refers to the Agreement between the Government
the United States
America and the Government
the Grand Duchy
Luxembourg to Improve International Tax Compliance and with respect to the United States information reporting provisions commonly known as the Foreign Account Tax Compliance Act, signed at Luxembourg on March 28, 2014, which is not yet in force („the Agreement“). In that connection, the Embassy proposes the following modifications to the English version
the Agreement: 1. The second Whereas clause
the Agreement shall be deleted and replaced with: „Whereas, the Convention on Mutual Administrative Assistance in Tax Matters (the „Convention“), done at Strasbourg on January 25, 1988, authorizes the exchange
information for tax purposes, including on an automatic basis (hereinafter the „Convention“ refers to the Convention and any amendments thereto that are in force for both Parties);“. 2. The third Whereas clause
the Agreement shall be deleted. 3. In the eleventh Whereas clause
the Agreement, the phrase „ , as amended by the Protocol“ shall be deleted in all places it appears in the Whereas clause. 4. In Paragraph 1
the Agreement, the phrase „Article 28
the Convention, as amended by the Protocol“ shall be deleted and replaced with „Article 6
the Convention“. 5. In Paragraph 6
the Agreement, the phrase „Article 27
the Convention, as amended by the Protocol“ shall be deleted and replaced with „Article 24
the Convention“. 6. In Paragraph 7
the Agreement, the phrase „as amended by the Protocol,“ shall be deleted. 7. In Paragraph 1
the Agreement, the paragraph shall be deleted and replaced with: „1. This Agreement shall enter into force on the date
Luxembourg’s written notification, through diplomatic channels, to the United States that Luxembourg has completed its necessary internal procedures for entry into force
this Agreement.“. Correspondingly, the Embassy
the Grand Duchy
Luxembourg has the honor to propose the following modifications to the French version
the Agreement: 1. The second Whereas clause
the Agreement shall be deleted and replaced with: „Considérant que la Convention concernant l’assistance administrative mutuelle en matière fiscale (la „Convention“), faite à Strasbourg le 25 janvier 1988, autorise l’échange d’informations à des fins fiscales, y compris sur une base automatique (ci-après la „Convention“ désigne la Convention et toutes les modifications s’y rapportant qui sont en vigueur pour les deux Parties);“. 2. The third Whereas clause
the Agreement shall be deleted. 3. In the eleventh Whereas clause
the Agreement, the phrase „ , telle qu’amendée par le Protocole“ shall be deleted in all places it appears in the Whereas clause. Mémorial A – N° 158 du 12 août 2015 3852 4. In Paragraph 1
the Agreement, the phrase „l’Article 28 de la Convention, telle qu’amendée par le Protocole“ shall be deleted and replaced with „l’Article 6 de la Convention“. 5. In Paragraph 6
the Agreement, the phrase „l’Article 27 de la Convention, tel qu’amendée par le Protocole“ shall be deleted and replaced with „l’Article 24 de la Convention“. 6. In Paragraph 7
the Agreement, the phrase „telle qu’amendée par le Protocole“ shall be deleted. 7. In Paragraph 1
the Agreement, the paragraph shall be deleted and replaced with: „1. Le présent Accord entrera en vigueur à la date de la notification écrite, par la voie diplomatique, du Luxembourg aux Etats-Unis stipulant que le Luxembourg a achevé les procédures internes nécessaires pour l’entrée en vigueur du présent Accord.“. If the foregoing is acceptable to the Government
the United States
America, the Embassy further proposes that the present note and the Department’s affirmative note in reply shall constitute an agreement between the Government
the Grand Duchy
Luxembourg and the Government
the United States
America modifying the Agreement and that this modifying agreement shall enter into force on the date
the Department’s reply. The Embassy avails itself
this opportunity to renew to the Department the assurances
its highest consideration. The Department informs the Embassy that the Government
the United States
America accepts the proposals set forth in the Embassy’s note. Therefore, the Embassy’s note and the present note shall constitute an agreement between the Government
the Grand Duchy
Luxembourg and the Government
the United States
America modifying the Agreement. This modifying agreement shall enter into force on the date
the present note, April 1,
State, * Mémorial A – N° 158 du 12 août 2015 3853 AGREEMENT between the Government
the Grand Duchy
Luxembourg and the Government
the United States
America to Improve International Tax Compliance and with respect to The United States information reporting provisions commonly known as the Foreign Account Tax Compliance Act Coordinated version Whereas, the Government
the United States
America and the Government
the Grand Duchy
Luxembourg (each, a „Party,“ and together, the „Parties“) wish to conclude an agreement to improve international tax compliance through mutual assistance in tax matters based on an effective infrastructure for the automatic exchange
information; Whereas, the Convention on Mutual Administrative Assistance in Tax Matters (the „Convention“), done at Strasbourg on January 25, 1988, authorizes the exchange
information for tax purposes, including on an automatic basis (hereinafter the „Convention“ refers to the Convention and any amendments thereto that are in force for both Parties); Whereas, the United States
America enacted provisions commonly known as the Foreign Account Tax Compliance Act („FATCA“), which introduce a reporting regime for financial institutions with respect to certain accounts; Whereas, the Government
the Grand Duchy
Luxembourg is supportive
the policy goal to improve tax compliance; Whereas, FATCA has raised a number
issues, including that Luxembourg financial institutions may not be able to comply with certain aspects
FATCA due to domestic legal impediments; Whereas, the Government
the United States
America collects information regarding certain accounts maintained by U.S. financial institutions held by residents
Luxembourg and is committed to exchanging such information with the Government
the Grand Duchy
Luxembourg and pursuing equivalent levels
exchange, provided that the appropriate safeguards and infrastructure for an effective exchange relationship are in place; Whereas, the Parties are committed to working together over the longer term towards achieving internationally accepted common reporting and due diligence standards for financial institutions; Whereas, the Government
the United States
America acknowledges the need to coordinate the reporting obligations under FATCA with other U.S. tax reporting obligations
Luxembourg financial institutions to avoid duplicative reporting; Mémorial A – N° 158 du 12 août 2015 3854 Whereas, an intergovernmental approach to FATCA implementation would address legal impediments and reduce burdens for Luxembourg financial institutions; Whereas, the Parties wish to conclude an agreement to improve international tax compliance and provide for the implementation
FATCA based on domestic reporting and reciprocal automatic exchange pursuant to the Convention and subject to the confidentiality and other protections provided for therein, including the provisions limiting the use
the information exchanged under the Convention; Now, therefore, the Parties HAVE AGREED as follows: Article 1 Definitions 1. For purposes
this agreement and any annexes thereto („Agreement“), the following terms shall have the meanings set forth below: a) The term „United States“ means the United States
America, including the States thereof, but does not include the U.S. Territories. Any reference to a „State“
the United States includes the District
Columbia. b) The term „U.S. Territory“ means American Samoa, the Commonwealth
the Northern Mariana Islands, Guam, the Commonwealth
Puerto Rico, or the U.S. Virgin Islands.
Luxembourg. e) The term „Partner Jurisdiction“ means a jurisdiction that has in effect an agreement with the United States to facilitate the implementation
FATCA. The IRS shall publish a list identifying all Partner Jurisdictions. f) The term „Competent Authority“ means:
the United States, the Secretary
the Treasury or his delegate; and
Luxembourg, the Minister
Finance or his delegate.
its business, financial assets for the account
others. An entity holds financial assets for the account
others as a substantial portion
its business if the entity’s gross income attributable to the holding
financial assets and related financial services equals or exceeds 20 percent
the entity’s gross income during the shorter
: (i) the three-year period that ends on December 31 (or the final day
a non-calendar year accounting period) prior to the year in which the determination is being made; or (
a banking or similar business. j) The term „Investment Entity“ means any Entity that conducts as a business (or is managed by an entity that conducts as a business) one or more
the following activities or operations for or on behalf
a customer:
deposit, derivatives, etc.); foreign exchange; exchange, interest rate and index instruments; transferable securities; or commodity futures trading;
other persons. This subparagraph 1(j) shall be interpreted in a manner consistent with similar language set forth in the definition
„financial institution“ in the Financial Action Task Force Recommendations. Mémorial A – N° 158 du 12 août 2015 3855 k) The term „Specified Insurance Company“ means any Entity that is an insurance company (or the holding company
an insurance company) that issues, or is obligated to make payments with respect to, a Cash Value Insurance Contract or an Annuity Contract.
such Financial Institution that is located outside Luxembourg, and (ii) any branch
a Financial Institution not resident in Luxembourg, if such branch is located in Luxembourg.
such Financial Institution that is located outside the Partner Jurisdiction, and (ii) any branch
a Financial Institution not established in the Partner Jurisdiction, if such branch is located in the Partner Jurisdiction.
such Financial Institution that is located outside the United States, and (ii) any branch
a Financial Institution not resident in the United States, if such branch is located in the United States, provided that the Financial Institution or branch has control, receipt, or custody
income with respect to which information is required to be exchanged under subparagraph
this Agreement. q) The term „Non-Reporting Luxembourg Financial Institution“ means any Luxembourg Financial Institution, or other Entity resident in Luxembourg, that is described in Annex II as a Non-Reporting Luxembourg Financial Institution or that otherwise qualifies as a deemed-compliant FFI or an exempt beneficial owner under relevant U.S. Treasury Regulations in effect on the date
signature
this Agreement. r) The term „Nonparticipating Financial Institution“ means a nonparticipating FFI, as that term is defined in relevant U.S. Treasury Regulations, but does not include a Luxembourg Financial Institution or other Partner Jurisdiction Financial Institution other than a Financial Institution treated as a Nonparticipating Financial Institution pursuant to subparagraph 2(b)
this Agreement or the corresponding provision in an agreement between the United States and a Partner Jurisdiction. s) The term „Financial Account“ means an account maintained by a Financial Institution, and includes:
an Entity that is a Financial Institution solely because it is an Investment Entity, any equity or debt interest (other than interests that are regularly traded on an established securities market) in the Financial Institution;
a Financial Institution not described in subparagraph 1(s)
this Article, any equity or debt interest in the Financial Institution (other than interests that are regularly traded on an established securities market), if (i) the value
the debt or equity interest is determined, directly or indirectly, primarily by reference to assets that give rise to U.S. Source Withholdable Payments, and (ii) the class
interests was established with a purpose
avoiding reporting in accordance with this Agreement; and
Financial Account in Annex II. Notwithstanding the foregoing, the term „Financial Account“ does not include any account that is excluded from the definition
Financial Account in Annex II. For purposes
this Agreement, interests are „regularly traded“ if there is a meaningful volume
trading with respect to the interests on an ongoing basis, and an „established securities market“ means an exchange that is
ficially recognized and supervised by a governmental authority in which the market is located and that has a meaningful annual value
shares traded on the exchange. For purposes
this subparagraph 1(s), an interest in a Financial Institution is not „regularly traded“ and shall be Mémorial A – N° 158 du 12 août 2015 3856 treated as a Financial Account if the holder
the interest (other than a Financial Institution acting as an intermediary) is registered on the books
such Financial Institution. The preceding sentence will not apply to interests first registered on the books
such Financial Institution prior to July 1, 2014, and with respect to interests first registered on the books
such Financial Institution on or after July 1, 2014, a Financial Institution is not required to apply the preceding sentence prior to January 1, 2016. t) The term „Depository Account“ includes any commercial, checking, savings, time, or thrift account, or an account that is evidenced by a certificate
deposit, thrift certificate, investment certificate, certificate
indebtedness, or other similar instrument maintained by a Financial Institution in the ordinary course
a banking or similar business. A Depository Account also includes an amount held by an insurance company pursuant to a guaranteed investment contract or similar agreement to pay or credit interest thereon. u) The term „Custodial Account“ means an account (other than an Insurance Contract or Annuity Contract) for the benefit
another person that holds any financial instrument or contract held for investment (including, but not limited to, a share or stock in a corporation, a note, bond, debenture, or other evidence
indebtedness, a currency or commodity transaction, a credit default swap, a swap based upon a nonfinancial index, a notional principal contract, an Insurance Contract or Annuity Contract, and any option or other derivative instrument). v) The term „Equity Interest“ means, in the case
a partnership that is a Financial Institution, either a capital or profits interest in the partnership. In the case
a trust that is a Financial Institution, an Equity Interest is considered to be held by any person treated as a settlor or beneficiary
all or a portion
the trust, or any other natural person exercising ultimate effective control over the trust. A Specified U.S. Person shall be treated as being a beneficiary
a foreign trust if such Specified U.S. Person has the right to receive directly or indirectly (for example, through a nominee) a mandatory distribution or may receive, directly or indirectly, a discretionary distribution from the trust. w)The term „Insurance Contract“ means a contract (other than an Annuity Contract) under which the issuer agrees to pay an amount upon the occurrence
a specified contingency involving mortality, morbidity, accident, liability, or property risk. x) The term „Annuity Contract“ means a contract under which the issuer agrees to make payments for a period
time determined in whole or in part by reference to the life expectancy
one or more individuals. The term also includes a contract that is considered to be an Annuity Contract in accordance with the law, regulation, or practice
the jurisdiction in which the contract was issued, and under which the issuer agrees to make payments for a term
years.
(i) the amount that the policyholder is entitled to receive upon surrender or termination
the contract (determined without reduction for any surrender charge or policy loan), and (ii) the amount the policyholder can borrow under or with regard to the contract. Notwithstanding the foregoing, the term „Cash Value“ does not include an amount payable under an Insurance Contract as:
an economic loss incurred upon the occurrence
the event insured against;
a previously paid premium under an Insurance Contract (other than under a life insurance contract) due to policy cancellation or termination, decrease in risk exposure during the effective period
the Insurance Contract, or arising from a redetermination
the premium due to correction
posting or other similar error; or
the contract or group involved.
a Depository Account, the account is Mémorial A – N° 158 du 12 août 2015 3857 held by an individual resident in Luxembourg and more than $10
interest is paid to such account in any given calendar year; or (ii) in the case
a Financial Account other than a Depository Account, the Account Holder is a resident
Luxembourg, including an Entity that certifies that it is resident in Luxembourg for tax purposes, with respect to which U.S. source income that is subject to reporting under chapter 3
subtitle A or chapter 61
subtitle F
the U.S. Internal Revenue Code is paid or credited. cc) The term „U.S. Reportable Account“ means a Financial Account maintained by a Reporting Luxembourg Financial Institution and held by one or more Specified U.S. Persons or by a Non-U.S. Entity with one or more Controlling Persons that is a Specified U.S. Person. Notwithstanding the foregoing, an account shall not be treated as a U.S. Reportable Account if such account is not identified as a U.S. Reportable Account after application
the due diligence procedures in Annex I. dd) The term „Account Holder“ means the person listed or identified as the holder
a Financial Account by the Financial Institution that maintains the account. A person, other than a Financial Institution, holding a Financial Account for the benefit or account
another person as agent, custodian, nominee, signatory, investment advisor, or intermediary, is not treated as holding the account for purposes
this Agreement, and such other person is treated as holding the account. For purposes
the immediately preceding sentence, the term „Financial Institution“ does not include a Financial Institution organized or incorporated in a U.S. Territory. In the case
a Cash Value Insurance Contract or an Annuity Contract, the Account Holder is any person entitled to access the Cash Value or change the beneficiary
the contract. If no person can access the Cash Value or change the beneficiary, the Account Holder is any person named as the owner in the contract and any person with a vested entitlement to payment under the terms
the contract. Upon the maturity
a Cash Value Insurance Contract or an Annuity Contract, each person entitled to receive a payment under the contract is treated as an Account Holder. ee) The term „U.S. Person“ means a U.S. citizen or resident individual, a partnership or corporation organized in the United States or under the laws
the United States or any State thereof, a trust if (i) a court within the United States would have authority under applicable law to render orders or judgments concerning substantially all issues regarding administration
the trust, and (ii) one or more U.S. persons have the authority to control all substantial decisions
the trust, or an estate
a decedent that is a citizen or resident
the United States. This subparagraph 1(
which is regularly traded on one or more established securities markets; (ii) any corporation that is a member
the same expanded affiliated group, as defined in section 1471(e)
the U.S. Internal Revenue Code, as a corporation described in clause (i); (iii) the United States, or any wholly owned agency or instrumentality thereof; (iv) any State
the United States, any U.S. Territory, any political subdivision
any
the foregoing, or any wholly owned agency or instrumentality
any one or more
the foregoing; (v) any organization exempt from taxation under section 501(a)
the U.S. Internal Revenue Code or an individual retirement plan as defined in section 7701(a)
the U.S. Internal Revenue Code; (vi) any bank as defined in section 581
the U.S. Internal Revenue Code; (vii) any real estate investment trust as defined in section 856
the U.S. Internal Revenue Code; (viii) any regulated investment company as defined in section 851
the U.S. Internal Revenue Code or any entity registered with the U.S. Securities and Exchange Commission under the Investment Company Act
1940 (15 U.S.C. 80a-64); (ix) any common trust fund as defined in section 584(a)
the U.S. Internal Revenue Code; (x) any trust that is exempt from tax under section 664(c)
the U.S. Internal Revenue Code or that is described in section 4947
the U.S. Internal Revenue Code; (xi) a dealer in securities, commodities, or derivative financial instruments (including notional principal contracts, futures, forwards, and options) that is registered as such under the laws
the United States or any State; (xii) a broker as defined in section 6045(c)
the U.S. Internal Revenue Code; or (xiii) any tax-exempt trust under a plan that is described in section 403(b) or section 457(g)
the U.S. Internal Revenue Code.
interest (including any original issue discount), dividends, rents, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, and other fixed or determinable annual or periodical gains, profits, and income, if such payment is from sources within the United States. Notwithstanding the foregoing, a U.S. Source Withholdable Payment does not include any payment that is not treated as a withholdable payment in relevant U.S. Treasury Regulations. jj) An Entity is a „Related Entity“
another Entity if either Entity controls the other Entity, or the two Entities are under common control. For this purpose control includes direct or indirect ownership
more than 50 percent
the vote or value in an Entity. Notwithstanding the foregoing, Luxembourg may treat an Entity as not a Related Entity
another Entity if the two Entities are not members
the same expanded affiliated group as defined in section 1471(e)
the U.S. Internal Revenue Code.
a trust, such term means the settlor, the trustees, the protector (if any), the beneficiaries or class
beneficiaries, and any other natural person exercising ultimate effective control over the trust, and in the case
a legal arrangement other than a trust, such term means persons in equivalent or similar positions. The term „Controlling Persons“ shall be interpreted in a manner consistent with the Financial Action Task Force Recommendations. 2. Any term not otherwise defined in this Agreement shall, unless the context otherwise requires or the Competent Authorities agree to a common meaning (as permitted by domestic law), have the meaning that it has at that time under the law
the Party applying this Agreement, any meaning under the applicable tax laws
that Party prevailing over a meaning given to the term under other laws
that Party. Article 2 Obligations to Obtain and Exchange Information with Respect to Reportable Accounts 1. Subject to the provisions
this Agreement, each Party shall obtain the information specified in paragraph 2
this Article with respect to all Reportable Accounts and shall annually exchange this information with the other Party on an automatic basis pursuant to the provisions
the Convention. 2. The information to be obtained and exchanged is: a) In the case
Luxembourg with respect to each U.S. Reportable Account
each Reporting Luxembourg Financial Institution:
each Specified U.S. Person that is an Account Holder
such account and, in the case
a Non-U.S. Entity that, after application
the due diligence procedures set forth in Annex I, is identified as having one or more ControllingPersons that is a Specified U.S. Person, the name, address, and U.S. TIN (if any)
such entity and each such Specified U.S. Person;
an account number);
the Reporting Luxembourg Financial Institution;
a Cash Value Insurance Contract or Annuity Contract, the Cash Value or surrender value) as
the end
the relevant calendar year or other appropriate reporting period or, if the account was closed during such year, immediately before closure;
any Custodial Account: (A) the total gross amount
interest, the total gross amount
dividends, and the total gross amount
other income generated with respect to the assets held in the account, Mémorial A – N° 158 du 12 août 2015 3859 in each case paid or credited to the account (or with respect to the account) during the calendar year or other appropriate reporting period; and (B) the total gross proceeds from the sale or redemption
property paid or credited to the account during the calendar year or other appropriate reporting period with respect to which the Reporting Luxembourg Financial Institution acted as a custodian, broker, nominee, or otherwise as an agent for the Account Holder;
any Depository Account, the total gross amount
interest paid or credited to the account during the calendar year or other appropriate reporting period; and
any account not described in subparagraph 2(a)
this Article, the total gross amount paid or credited to the Account Holder with respect to the account during, the calendar year or other appropriate reporting period with respect to which the Reporting Luxembourg Financial Institution is the obligor or debtor, including the aggregate amount
any redemption payments made to the Account Holder during the calendar year or other appropriate reporting period. b) In the case
the United States, with respect to each Luxembourg Reportable Account
each Reporting U.S. Financial Institution:
any person that is a resident
Luxembourg and is an Account Holder
the account;
an account number);
the Reporting U.S. Financial Institution;
interest paid on a Depository Account;
U.S. source dividends paid or credited to the account; and
other U.S. source income paid or credited to the account, to the extent subject to reporting under chapter 3
subtitle A or chapter 61
subtitle F
the U.S. Internal Revenue Code. Article 3 Time and Manner
Exchange
Information 1. For purposes
the exchange obligation in Article 2
this Agreement, the amount and characterization
payments made with respect to a U.S. Reportable Account may be determined in accordance with the principles
the tax laws
Luxembourg, and the amount and characterization
payments made with respect to a Luxembourg Reportable Account may be determined in accordance with principles
U.S. federal income tax law. 2. For purposes
the exchange obligation in Article 2
this Agreement, the information exchanged shall identify the currency in which each relevant amount is denominated. 3. With respect to paragraph 2
this Agreement, information is to be obtained and exchanged with respect to 2014 and all subsequent years, except that: a) In the case
Luxembourg:
this Agreement;
this Agreement, except for gross proceeds described in subparagraph 2(a)
this Agreement; and
this Agreement; b) In the case
the United States, the information to be obtained and exchanged with respect to 2014 and subsequent years is all
the information identified in subparagraph 2(b)
this Agreement. Mémorial A – N° 158 du 12 août 2015 3860 4. Notwithstanding paragraph 3
this Article, with respect to each Reportable Account that is maintained by a Reporting Financial Institution as
June 30, 2014, and subject to paragraph 4
this Agreement, the Parties are not required to obtain and include in the exchanged information the Luxembourg TIN or the U.S. TIN, as applicable,
any relevant person if such taxpayer identifying number is not in the records
the Reporting Financial Institution. In such a case, the Parties shall obtain and include in the exchanged information the date
birth
the relevant person, if the Reporting Financial Institution has such date
birth in its records. 5. Subject to paragraphs 3 and 4
this Article, the information described in Article 2
this Agreement shall be exchanged within nine months after the end
the calendar year to which the information relates. 6. The Competent Authorities
Luxembourg and the United States shall enter into an agreement under the mutual agreement procedure as contemplated in Article 24
the Convention which shall: a) establish the procedures for the automatic exchange obligations described in Article 2
this Agreement; b) prescribe rules and procedures as may be necessary to implement Article 5
this Agreement; and c) establish as necessary procedures for the exchange
the information reported under subparagraph 1(b)
this Agreement. 7. All information exchanged shall be subject to the confidentiality and other protections provided for in the Convention, including the provisions limiting the use
the information exchanged. 8. Each Competent Authority shall provide written notification to the other Competent Authority when it is satisfied that the jurisdiction
the other Competent Authority has in place (
this Agreement). The Competent Authorities shall endeavor in good faith to meet, prior to September 2015, to establish that each jurisdiction has such safeguards and infrastructure in place. 9. The obligations
the Parties to obtain and exchange information under Article 2
this Agreement shall take effect on the later
: (i) the date
the later
the written notifications described in paragraph 8
this Article, or (ii) the date
entry into force
this Agreement pursuant to paragraph 1
. Notwithstanding the foregoing, if the Luxembourg Competent Authority is satisfied that the United States has the safeguards and infrastructure described in paragraph 8
this Article in place, but additional time is necessary for the U.S. Competent Authority to establish that Luxembourg has such safeguards and infrastructure in place, the obligation
Luxembourg to obtain and exchange information under Article 2
this Agreement shall take effect on the later
: (i) the date
the written notification provided by the Luxembourg Competent Authority to the U.S. Competent Authority pursuant to paragraph 8
this Article, or (ii) the date
entry into force
this Agreement pursuant to paragraph 1
This Agreement shall terminate on September 30, 2015, if Article 2
this Agreement is not in effect for either Party pursuant to paragraph 9
this Article by that date. Article 4 Application
FATCA to Luxembourg Financial Institutions 1. Treatment
Reporting Luxembourg Financial Institutions Each Reporting Luxembourg Financial Institution shall be treated as complying with, and not subject to withholding under, section 1471
the U.S. Internal Revenue Code if Luxembourg complies Mémorial A – N° 158 du 12 août 2015 3861 with its obligations under Articles 2 and 3
this Agreement with respect to such Reporting Luxembourg Financial Institution, and the Reporting Luxembourg Financial Institution: a) identifies U.S. Reportable Accounts and reports annually to the Luxembourg Competent Authority the information required to be reported in subparagraph 2(a)
this Agreement in the time and manner described in Article 3
this Agreement; b) for each
2015 and 2016, reports annually to the Luxembourg Competent Authority the name
each Nonparticipating Financial Institution to which it has made payments and the aggregate amount
such payments;
section 1441
the U.S. Internal Revenue Code) that has elected to assume primary withholding responsibility under chapter 3
subtitle A
the U.S. Internal Revenue Code, (ii) a foreign partnership that has elected to act as a withholding foreign partnership (for purposes
both sections 1441 and 1471
the U.S. Internal Revenue Code), or (iii) a foreign trust that has elected to act as a withholding foreign trust (for purposes
both sections 1441 and 1471
the U.S. Internal Revenue Code), withholds 30 percent
any U.S. Source Withholdable Payment to any Nonparticipating Financial Institution; and e) in the case
a Reporting Luxembourg Financial Institution that is not described in subparagraph 1(d)
this Article and that makes a payment
, or acts as an intermediary with respect to, a U.S. Source Withholdable Payment to any Nonparticipating Financial Institution, the Reporting Luxembourg Financial Institution provides to any immediate payor
such U.S. Source Withholdable Payment the information required for withholding and reporting to occur with respect to such payment. Notwithstanding the foregoing, a Reporting Luxembourg Financial Institution with respect to which the conditions
this paragraph 1 are not satisfied shall not be subject to withholding under section 1471
the U.S. Internal Revenue Code unless such Reporting Luxembourg Financial Institution is treated by the IRS as a Nonparticipating Financial Institution pursuant to subparagraph 2(b)
this Agreement. 2. Suspension
Rules Relating to Recalcitrant Accounts The United States shall not require a Reporting Luxembourg Financial Institution to withhold tax under section 1471 or 1472
the U.S. Internal Revenue Code with respect to an account held by a recalcitrant account holder (as defined in section 1471(d)
the U.S. Internal Revenue Code), or to close such account, if the U.S. Competent Authority receives the information set forth in subparagraph 2(a)
this Agreement, subject to the provisions
this Agreement, with respect to such account. 3. Specific Treatment
Luxembourg Retirement Plans The United States shall treat as deemed-compliant FFIs or exempt beneficial owners, as appropriate, for purposes
sections 1471 and 1472
the U.S. Internal Revenue Code, Luxembourg retirement plans described in Annex II. For this purpose, a Luxembourg retirement plan includes an Entity established or located in, and regulated by, Luxembourg, or a predetermined contractual or legal arrangement, operated to provide pension or retirement benefits or earn income for providing such benefits under the laws
Luxembourg and regulated with respect to contributions, distributions, reporting, sponsorship, and taxation. 4. Identification and Treatment
Other Deemed-Compliant FFIs and Exempt Beneficial Owners The United States shall treat each Non-Reporting Luxembourg Financial Institution as a deemedcompliant FFI or as an exempt beneficial owner, as appropriate, for purposes
section 1471
the U.S. Internal Revenue Code. 5. Special Rules Regarding Related Entities and Branches That Are Nonparticipating Financial Institutions If a Luxembourg Financial Institution, that otherwise meets the requirements described in paragraph 1
this Article or is described in paragraph 3 or 4
this Article, has a Related Entity or branch Mémorial A – N° 158 du 12 août 2015 3862 that operates in a jurisdiction that prevents such Related Entity or branch from fulfilling the requirements
a participating FFI or deemed-compliant FFI for purposes
section 1471
the U.S. Internal Revenue Code or that has a Related Entity or branch that is treated as a Nonparticipating Financial Institution solely due to the expiration
the transitional rule for limited FFIs and limited branches under relevant U.S. Treasury Regulations, such Luxembourg Financial Institution shall continue to be in compliance with the terms
this Agreement and shall continue to be treated as a deemed-compliant FFI or exempt beneficial owner, as appropriate, for purposes
section 1471
the U.S. Internal Revenue Code, provided that: a) the Luxembourg Financial Institution treats each such Related Entity or branch as a separate Nonparticipating Financial Institution for purposes
all the reporting and withholding requirements
this Agreement and each such Related Entity or branch identifies itself to withholding agents as a Nonparticipating Financial Institution; b) each such Related Entity or branch identifies its U.S. accounts and reports the information with respect to those accounts as required under section 1471
the U.S. Internal Revenue Code to the extent permitted under the relevant laws pertaining to the Related Entity or branch; and c) such Related Entity or branch does not specifically solicit U.S. accounts held by persons that are not resident in the jurisdiction where such Related Entity or branch is located or accounts held by Nonparticipating Financial Institutions that are not established in the jurisdiction where such Related Entity or branch is located, and such Related Entity or branch is not used by the Luxembourg Financial Institution or any other Related Entity to circumvent the obligations under this Agreement or under section 1471
the U.S. Internal Revenue Code, as appropriate. 6. Coordination
Timing Notwithstanding paragraphs 3 and 5
this Agreement:
Definitions with U.S. Treasury Regulations Notwithstanding Article 1
this Agreement and the definitions provided in the Annexes to this Agreement, in implementing this Agreement, Luxembourg may use, and may permit Luxembourg Financial Institutions to use, a definition in relevant U.S. Treasury Regulations in lieu
a corresponding definition in this Agreement, provided that such application would not frustrate the purposes
this Agreement. Article 5 Collaboration on Compliance and Enforcement 1. Minor and Administrative Errors A Competent Authority shall notify the Competent Authority
the other Party when the firstmentioned Competent Authority has reason to believe that administrative errors or other minor errors may have led to incorrect or incomplete information reporting or resulted in other infringements
this Agreement. The Competent Authority
such other Party shall apply its domestic law (including applicable penalties) to obtain corrected and/or complete information or to resolve other infringements
this Agreement. Mémorial A – N° 158 du 12 août 2015 3863 2. Significant Non-Compliance a) A Competent Authority shall notify the Competent Authority
the other Party when the firstmentioned Competent Authority has determined that there is significant non-compliance with the obligations under this Agreement with respect to a Reporting Financial Institution in the other jurisdiction. The Competent Authority
such other Party shall apply its domestic law (including applicable penalties) to address the significant non-compliance described in the notice. b) If, in the case
a Reporting Luxembourg Financial Institution, such enforcement actions do not resolve the non-compliance within a period
18 months after notification
significant noncompliance is first provided, the United States shall treat the Reporting Luxembourg Financial Institution as a Nonparticipating Financial Institution pursuant to this subparagraph 2(b). 3. Reliance on Third Party Service Providers Each Party may allow Reporting Financial Institutions to use third party service providers to fulfill the obligations imposed on such Reporting Financial Institutions by a Party, as contemplated in this Agreement, but these obligations shall remain the responsibility
the Reporting Financial Institutions. 4. Prevention
Avoidance The Parties shall implement as necessary requirements to prevent Financial Institutions from adopting practices intended to circumvent the reporting required under this Agreement. Article 6 Mutual Commitment to Continue to Enhance the Effectiveness
Information Exchange and Transparency 1. Reciprocity The Government
the United States acknowledges the need to achieve equivalent levels
reciprocal automatic information exchange with Luxembourg. The Government
the United States is committed to further improve transparency and enhance the exchange relationship with Luxembourg by pursuing the adoption
regulations and advocating and supporting relevant legislation to achieve such equivalent levels
reciprocal automatic information exchange. 2. Treatment
Passthru Payments and Gross Proceeds The Parties are committed to work together, along with Partner Jurisdictions, to develop a practical and effective alternative approach to achieve the policy objectives
foreign passthru payment and gross proceeds withholding that minimizes burden. 3. Development
Common Reporting and Exchange Model The Parties are committed to working with Partner Jurisdictions, the Organisation for Economic Cooperation and Development, on adapting the terms
this Agreement and other agreements between the United States and Partner Jurisdictions to a common model for automatic exchange
information, including the development
reporting and due diligence standards for financial institutions. 4. Documentation
Accounts Maintained as
June 30, 2014 With respect to Reportable Accounts maintained by a Reporting Financial Institution as
June 20, 2014: a) The United States commits to establish, by January 1, 2017, for reporting with respect to 2017 and subsequent years, rules requiring Reporting U.S. Financial Institutions to obtain and report the Luxembourg TIN
each Account Holder
a Luxembourg Reportable Account as required pursuant to subparagraph 2(b)
this Agreement; and b) Luxembourg commits to establish, by January 1, 2017, for reporting with respect to 2017 and subsequent years, rules requiring Reporting Luxembourg Financial Institutions to obtain the U.S. TIN
each Specified U.S. Person as required pursuant to subparagraph 2(a)
this Agreement. Mémorial A – N° 158 du 12 août 2015 3864 Article 7 Consistency in the Application
FATCA to Partner Jurisdictions 1. Luxembourg shall be granted the benefit
any more favorable terms under Article 4 or Annex I
this Agreement relating to the application
FATCA to Luxembourg Financial Institutions afforded to another Partner Jurisdiction under a signed bilateral agreement pursuant to which the other Partner Jurisdiction commits to undertake the same obligations as Luxembourg described in Articles 2 and 3
this Agreement, and subject to the same terms and conditions as described therein and in Articles 5 through 9
this Agreement. 2. The United States shall notify Luxembourg
any such more favorable terms, and such more favorable terms shall apply automatically under this Agreement as if such terms were specified in this Agreement and effective as
the date
the entry into force
the agreement incorporating the more favorable terms, unless Luxembourg declines in writing the application thereof. Article 8 Consultations and Amendments 1. In case any difficulties in the implementation
this Agreement arise, either Party may request consultations to develop appropriate measures to ensure the fulfillment
this Agreement. 2. This Agre
Explication IA à partir du texte officiel de la loi. Indicatif, ne remplace pas un conseil juridique.