Agreement between the Kingdom of the Netherlands and the United States of America to improve international tax compliance and to implement FATCA:bijlage II

Agreement between the Kingdom of the Netherlands and the United States of America to improve international tax compliance and to implement FATCA

Annex II Non-reporting Netherlands Financial Institutions and Products

Geldend

Documentgegevens:

Geldend vanaf 23-07-2020. Let op: treedt met terugwerkende kracht in werking vanaf 25-03-2019

Bronpublicatie:: 23-07-2020, Trb. 2020, 120 (uitgifte: 17-11-2020, kamerstukken/regelingnummer: -)
Inwerkingtreding: 23-07-2020, terugwerkend tot: 25-03-2019
Bronpublicatie inwerkingtreding:: 17-11-2020, Trb. 2020, 120 (uitgifte: 17-11-2020, kamerstukken/regelingnummer: -)
Vakgebied(en): Internationaal belastingrecht (V)
Internationaal belastingrecht / Belastingverdragen
Internationaal belastingrecht / Inlichtingenuitwisseling en wederzijdse bijstand

This Annex II may be modified by a mutual written decision entered into between the Competent Authorities of the Netherlands and the United States:

(1): to include additional Entities, accounts and products that present a low risk of being used by U.S. Persons to evade U.S. tax and that have similar characteristics to the Entities, accounts, and products described in this Annex II as of the date of entry into force of the Agreement; or
(2): to remove Entities, accounts and products that, due to changes in circumstances, no longer present a low risk of being used by U.S. Persons to evade U.S. tax.

Any such addition or removal shall be effective on the date of signature of the mutual decision, unless otherwise provided therein. Procedures for reaching such a mutual decision may be included in the mutual arrangement described in paragraph 6 of Article 3 of the Agreement.

I. Exempt Beneficial Owners

The following Entities are treated as Non-Reporting Netherlands Financial Institutions and as exempt beneficial owners for purposes of sections 1471 and 1472 of the U.S. Internal Revenue Code:

A. Governmental Entities

1.

The Government of the Netherlands, any political subdivision or local authority thereof, or any wholly owned agency or instrumentality of the foregoing.

2.

Entities within the scope of paragraph 1 shall in any case be:

a): Agentschap van de Generale Thesaurie (Netherlands State Treasury Agency);
b): Nederlandse Waterschapsbank N.V. (Netherlands Waterboard Bank);
c): N.V. Bank Nederlandse Gemeenten (Netherlands Municipalities Bank);
d): Nederlandse Investeringsbank voor Ontwikkelingslanden N.V. (Netherlands Investmentbank for Developing Countries);
e): Gemeentelijke Kredietbanken (Municipal Social Banks).

B. Central Bank

The Central Bank (De Nederlandsche Bank N.V.) and any of its wholly owned subsidiaries.

C. International Organizations

International Organizations and any wholly owned agency or instrumentality thereof as referred to in Article 39 of the General Tax Act (Algemene wet inzake rijksbelastingen).

D. Retirement Funds

1.: Any entity that qualifies for benefits under Article 35 (Exempt Pension Trusts) of the Double Tax Convention;
2.: A pension fund regulated under the Pension Act (Pensioenwet);
3.: An industry-wide pension fund as meant in the Pension Act and the Act on Mandatory Participation in an Industry-Wide Pension Fund (Wet verplichte deelneming in een bedrijfstakpensioenfonds 2000);
4.: An occupational pension fund as meant in the Mandatory Pensions for Professional Groups Act (Wet verplichte beroepspensioensregeling). A notarial pension fund as meant in the Act on the Notary Office (Wet op het notarisambt);
5.: A premium pension institution as meant in the Act on Financial Supervision (Wet op het financieel toezicht);
6.: An entity as meant in paragraph 2 of Article 19a of the Wage Tax Act 1964 (Wet op de loonbelasting 1964) administering a pension arrangement in relation to an individual who is both an employee and substantial shareholder as referred to in Article 1 of the Pension Act(Pensioenwet);
7.: A company pension fund or an industry-wide pension fund as meant in the Pension Act BES (Pensioenwet BES).

E. Investment Entity Wholly Owned by Exempt Beneficial Owners

An Entity that is a Netherlands Financial Institution solely because it is an Investment Entity, provided that each direct holder of an Equity Interest in the Entity is an exempt beneficial owner, and each direct holder of 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.

II. Deemed-Compliant Financial Institutions

A.Deemed-Compliant Financial Institutions

The following Financial Institutions are treated as Non-Reporting Netherlands Financial Institutions and as deemed-compliant FFIs for purposes of section 1471 of the U.S. Internal Revenue Code:

1.

Financial Institutions with a Local Client Base Any Financial Institution that meets all of the following requirements:

a)

The Financial Institution must be licensed and regulated under the laws of the Netherlands;

b)

The Financial Institution must have no fixed place of business outside the Netherlands;

c)

The Financial Institution must not solicit account holders outside the Netherlands. For this purpose, a Financial Institution shall not be considered to have solicited account holders outside of the Netherlands merely because it operates a website, provided that the website does not specifically indicate that the Financial Institution provides accounts or services to non-residents or otherwise target or solicit U.S. customers;

d)

The Financial Institution must be required under the tax laws of the Netherlands to perform either information reporting, withholding of tax with respect to accounts held by residents of the Netherlands or is required to identify resident accounts for purposes of satisfying Netherlands AML due diligence requirements;

e)

At least 98 percent of the accounts by value provided by the Financial Institution must be held by residents (including residents that are entities) of the Netherlands or another Member State of the European Union;

f)

Subject to subparagraph 1(g), below, beginning on July 1, 2014, the Financial Institution does not provide accounts to

(i): any Specified U.S. Person who is not a resident of the Netherlands (including a U.S. Person that was a resident of the Netherlands when the account was opened but subsequently ceases to be a resident of the Netherlands),
(ii): a Nonparticipating Financial Institution, or
(iii): any Passive NFFE with Controlling Persons who are U.S. citizens or residents;

g)

On or before July 1, 2014, the Financial Institution must implement policies and procedures to monitor whether it provides any account held by a person described in subparagraph 1(f), and if such an account is discovered, the Financial Institution must report such account as though the Financial Institution were a Reporting Netherlands Financial Institution (including by following the applicable registration requirements on the IRS FATCA registration website) or close such account;

h)

With respect to each account that is held by an individual who is not a resident of the Netherlands or by an entity, and that is opened prior to the date that the Financial Institution implements the policies and procedures described in subparagraph 1(g), above, the Financial Institution must review those accounts in accordance with the procedures described in Annex I applicable to Preexisting Accounts to identify any U.S. Reportable Account or account held by a Nonparticipating Financial Institution, and must close any such accounts that were identified, or report on such accounts as though the Financial Institution were a Reporting Netherlands Financial Institution (including by following the applicable registration requirements on the IRS FATCA registration website);

i)

Each Related Entity of the Financial Institution must be incorporated or organized in the Netherlands and meet the requirements set forth in this paragraph 1; and

j)

The Financial Institution must not have policies or practices that discriminate against opening or maintaining accounts for individuals who are Specified U.S. Persons and who are residents of the Netherlands.

2.

Non-profit Organizations

a)

An algemeen nut beogende instelling (‘ANBI’) as described in Article 5b of the General Tax Act (Algemene wet inzake rijksbelastingen);

b)

A sociaal belang behartigende instelling (‘SBBI’) as described in Article 5c of the General Tax Act (Algemene wet inzake rijksbelastingen);

c)

A steunstichting SBBI as described in Article 5d of the General Tax Act (Algemene wet inzake rijksbelastingen);

d)

A charitable organization that does not have shareholders, including a religious, cultural or scientific organization, as meant in paragraph 1(f) of Article 16 of the Income Tax Act BES (Wet inkomstenbelasting BES), established in the Caribbean part of the Netherlands;

e)

The following quasi-governmental non-profit organizations:

(i): Stichting Stimuleringsfonds Volkshuisvesting Nederlandse Gemeenten (Fund for Stimulation of Public Housing Dutch Municipalities);
(ii): Stichting Nationaal Restauratiefonds (Restoration Fund);
(iii): Stichting Groenfonds (Green Fund);
(iv): Besloten vennootschap met beperkte aansprakelijkheid Nationale Maatschappij tot Behoud, Ontwikkeling en Exploitatie van Industrieel Erfgoed B.V. (National Society for Salvation, Development and Exploitation of Industrial Monuments).

3.

A fund that is exempt under the Corporation Tax Act (Wet op de vennootschapsbelasting 1969) and constituted by a Netherlands labor union and operated exclusively to administer or provide benefits to its members in case they are on strike (stakingskassen) and of which the payments are exempt under paragraph 1(f) of Article 3.13 of the Income Tax Act 2001 (Wet inkomstenbelasting 2001).

4.

Investment Advisors and Investment Managers

An Investment Entity resident in the Netherlands the sole activity of which is

(1): to render investment advice to, and act on behalf of, or
(2): to manage portfolios for, a customer based on a power of attorney or similar instrument (e.g., an investment authority) issued by the holder of a Financial Account or based on investment powers in a directorship capacity for the purposes of investing, managing, or administering funds deposited in the name of the person or Entity granting the power or issuing the similar instrument with a Financial Institution other than a Nonparticipating Financial Institution.

B.Certain Collective Investment Vehicles

1.

In the case of an Investment Entity that is a collective investment vehicle resident in the Netherlands if all of the interests in the collective investment vehicle (including debt interests in excess of $50,000) are held by or through one or more exempt beneficial owners, Active NFFEs described in subparagraph B(4) of section VI of Annex I, U.S. Persons that are not Specified U.S. Persons, or Financial Institutions that are not Nonparticipating Financial Institutions, such collective investment vehicle will be treated as a deemed-compliant FFI for purposes of section 1471 of the U.S. Internal Revenue Code, and the reporting obligations of any Investment Entity (other than a Financial Institution through which interests in the collective investment vehicle are held) shall be deemed fulfilled with respect to interests in the collective investment vehicle.

2.

With respect to interests in:

a.: An Investment Entity that is regulated as a collective investment vehicle under the laws of a Partner Jurisdiction, all of the interest in which (including debt interests in excess of $50,000) are held by or through one or more exempt beneficial owners, Active NFFEs described in subparagraph B(4) of section VI of 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 of any Investment Entity that is a Netherlands Financial Institution (other than a Financial Institution through which interests in the collective investment vehicle are held) shall be deemed fulfilled.

3.

In the case of an Investment Entity that is a collective investment vehicle resident in the Netherlands not described in paragraph 1 or 2, consistent with paragraph 3 of Article 5 of the Agreement, if the information required to be reported by the collective investment vehicle pursuant to the Agreement with respect to interests in the collective investment vehicle is reported by the collective investment vehicle or another Investment Entity, the reporting obligations of all other Investment Entities required to report with respect to the interests in the collective investment vehicle will be deemed fulfilled with respect to such interests.

C.Sponsored Investment Entity and Controlled Foreign Corporation

A Financial Institution described in subparagraph C(1) or C(2) of this section having a sponsoring entity that complies with the requirements of subparagraph C(3) of this section.

1.

A Financial Institution is a sponsored investment entity if (a) it is an Investment Entity established in the Netherlands that is not a qualified intermediary, withholding foreign partnership, or withholding foreign trust pursuant to relevant U.S. Treasury Regulations; and (b) an Entity has agreed with the Financial Institution to act as a sponsoring entity for the Financial Institution.

2.

A Financial Institution is a sponsored controlled foreign corporation if

a): the Financial Institution is a controlled foreign corporation1) organized under the laws of the Netherlands 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 of 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 of 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 of the Financial Institution (such as a fund manager, trustee, corporate director, or managing partner) to fulfill applicable registration requirements on the IRS FATCA registration website;
b): The sponsoring entity has registered as a sponsoring entity with the IRS on the IRS FATCA registration website;
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 the IRS FATCA registration website on or before 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 of 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 Netherlands Financial Institution;
e): The sponsoring entity identifies the Financial Institution and includes the identifying number of the Financial Institution (obtained by following applicable registration requirements on the IRS FATCA registration website) in all reporting completed on the Financial Institution’s behalf; and
f): The sponsoring entity has not had its status as a sponsor revoked.

D.Sponsored, Closely Held Investment Vehicle

A Netherlands Financial Institution satisfying the following requirements:

1.

The Financial Institution is a Financial Institution solely because it is an Investment Entity and is not a qualified intermediary, withholding foreign partnership, or withholding foreign trust pursuant to relevant U.S. Treasury Regulations;

2.

The sponsoring entity is a Reporting U.S. Financial Institution, Reporting Model 1 FFI2), or Participating FFI3), is authorized to act on behalf of the Financial Institution (such as a professional manager, trustee, or managing partner), and agrees to perform, on behalf of 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 Netherlands 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 of 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 of the Equity Interests in the Financial Institution and is itself a sponsored Financial Institution described in this paragraph D); and

5.

The sponsoring entity complies with the following requirements:

a): The sponsoring entity has registered as a sponsoring entity with the IRS on the IRS FATCA registration website;
b): The sponsoring entity agrees to perform, on behalf of 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 Netherlands Financial Institution and retains documentation collected with respect to the Financial Institution for a period of six years;
c): The sponsoring entity identifies the Financial Institution in all reporting completed on the Financial Institution’s behalf; and
d): The sponsoring entity has not had its status as a sponsor revoked.

III. Exempt Products

The following categories of accounts and products established in the Netherlands and maintained by a Netherlands Financial Institution shall not be treated as Financial Accounts, and therefore shall not be U.S. Reportable Accounts or accounts held by a Nonparticipating Financial Institution, under the Agreement:

A. Certain Retirement Accounts or Products

1.: Any account owned by an entity identified in paragraph I of this Annex II;
2.: All products offering retirement benefits under the Wage Tax Act 1964 (Wet op de loonbelasting 1964) or the Wage Tax Act BES (Wet loonbelasting BES);
3.: All products that are deductible in the contribution phase and taxable in the distribution phase that are covered by Articles 3.124, 3.125 and 3.126a of the Income Tax Act 2001 (Wet inkomstenbelasting 2001) or paragraphs 1(a) and 1(e) of Article 16 of the Income Tax Act BES (Wet inkomstenbelasting BES);
4.: An account or product excluded from the definition of Financial Account under an agreement between the United States and another Partner Jurisdiction to facilitate the implementation of FATCA, provided that such account or product is subject to the same requirements and oversight under the laws of such other Partner Jurisdiction as if such account or product were established in that Partner Jurisdiction and maintained by a Partner Jurisdiction Financial Institution in that Partner Jurisdiction.

B. Certain Other Tax-Favored Accounts or Products

1.: A Kapitaalverzekering Eigen Woning (endowment insurance connected with the mortgage on the owner-occupied home, as described in Article 3.116 Income Tax Act 2001), a Spaarrecht Eigen Woning, a Beleggingsrecht Eigen Woning (the bank and investment equivalent of the Kapitaalverzekering Eigen Woning, as described in Article 3.116a Income Tax Act 2001) and a bouwdepot (building account);
2.: A Stamrecht (tax-favored annuity for severance benefits, as described in paragraph 1(g) of Article 11 and Article 11a of the Wage Tax Act 1964);
3.: A Course of life account (including a levenslooprekening, levensloopverzekering and a levenslooprecht van deelneming) concluded and maintained prior to January 1, 2012.

C. Other Exempt Products

1.: An alimony annuity, as provided by Article 6.5 and Article 6.6 of the Income Tax Act 2001 (Wet inkomstenbelasting 2001);
2.: Any funeral insurance policy with a premium of € 1,000 per year or less.

Toon alle voetnoten

Voetnoten

1).

A ‘controlled foreign corporation’ means any foreign corporation if more than 50 percent of the total combined voting power of all classes of stock of such corporation entitled to vote, or the total value of the stock of such corporation, is owned, or is considered as owned, by ‘United States shareholders’ on any day during the taxable year of 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 of the total combined voting power of all classes of stock entitled to vote of such foreign corporation, or 10 percent or more of the total value of shares of all classes of stock of such foreign corporation.

2).

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 of this definition, the term Model 1 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 implement FATCA through reporting by Financial Institutions to such non-U.S. government or agency thereof, followed by automatic exchange of such reported information with the IRS.

3).

The term Participating FFI means a Financial Institution that has agreed to comply with the requirements of an FFI Agreement, including a Financial Institution described in a Model 2 IGA that has agreed to comply with the requirements of an FFI Agreement. The term Participating FFI also includes a qualified intermediary branch of a Reporting U.S. Financial Institution, unless such branch is a Reporting Model 1 FFI. For purposes of 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 of section 1471(b) of the U.S. Internal Revenue Code. In addition, for purposes of 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 of FATCA through reporting by Financial Institutions directly to the IRS in accordance with the requirements of an FFI Agreement, supplemented by the exchange of information between such non-U.S. government or agency thereof and the IRS.