Controlling person Self-certification for the Automatic Exchange of Information and FATCA

Transcription

1 Controlling person Self-certification for the Automatic Exchange of Information and FATCA Instructions for completion This form is provided to you in the context of the implementation of (1) the OECD Standard for the Automatic Exchange of Financial Account Information in Tax Matters (the OECD Standard) and (2) the intergovernmental agreement on FATCA signed between Luxembourg and the United States (FATCA Agreement). We are required, pursuant to the FATCA law dated 24 July and the CRS law dated 18 December 2015,2 to collect and process certain information about all our Account holders. Where the Account holder or any of its Controlling Persons has a tax residence outside Luxembourg or is a US Person, the information given in this form as well as other financial information with respect to any Financial Account held with our institution may be reported on an annual basis to the Luxembourg tax authorities3 for transmission to the competent foreign tax authorities. Considering the aforementioned legal provisions, you are required to complete the sections below as directed. Please note that failure to fill in this self-certification may lead to multiple and inaccurate reporting. If you are a US citizen or a US resident individual, you are required in addition to provide a W9 form, available on Definitions can be found in the glossary attached hereto. If you still have any question about how to complete this form or to determine your tax residency status, please contact your tax advisor. Name of controlled entity: Part I Personal Information 1. Name 2. Surname 3. Place/date of birth City of birth Country of birth Date of birth 4. Permanent residence address Number, Street Postcode, Town, Country 6. address Part II FATCA I declare that I am a US Person pursuant to the FATCA Agreement. Please complete in addition an IRS W9 Form I declare that I am not a US Person pursuant to the FATCA Agreement. 1 FATCA law dated 24 July 2015, published in the Mémorial A N 145 on July 29, 2015 law dated 18 December 2015, published in the Mémorial A N 244 on December 24, Being the Administration des contributions directes 2 CRS

2 Part III Control For any Passive NFE/NFFE, We are required to identify all controlling persons of a Passive NFE/NFFE. Control over an Entity is generally exercised by the natural person(s) who ultimately has a controlling ownership interest in the Entity. Where no natural person exercises control through ownership interests, the Controlling Person(s) of the Entity will be the natural person(s) who exercise(s) control of the Entity through other means. Where no natural person(s) is/are identified as exercising control of the Entity, the Controlling Person(s) of the Entity will be the natural person(s) who hold(s) the position of senior managing official. In the case of a trust, the Controlling Person means the settlor(s), the trustee(s), the protector(s) (if any), the beneficiary(ies) or class(es) of beneficiaries, or any other natural person(s) exercising ultimate effective control over the trust. The settlor(s), the trustee(s), the protector(s) (if any), and the beneficiary(ies) or class(es) of beneficiaries, must always be treated as Controlling Persons of a trust, regardless of whether or not any of them exercises control over the activities of the trust. In the case of a legal arrangement other than a trust, such term means persons in equivalent or similar positions. This definition corresponds to the term beneficial owner as described in Recommendation 10 of the Financial Action Task Force Recommendations (as adopted in February 2012) and as provided in the AML Luxembourg law dated 12 November Each Passive NFE/NFFE or Investment entity resident in a non-crs jurisdiction has at least one controlling person. Please refer to the Glossary for definitions and examples. A) Type of control - Entity (other than a trust or legal arrangement) Ownership:... % B) Type of control - Trusts/legal arrangements Settlor Other means Trustee Senior Managing Official Beneficiary Function held in the company: Protector Other, please specify: If your identity had not been previously disclosed to the bank, you are required to provide us with your certified ID. Part IV Tax Residence Please provide below the list of ALL countries of tax residence (*) and associated Taxpayer Identification Number (TIN) Country(ies) of Tax Residence Taxpayer Identification Number (TIN)** * Additional indications on tax residence can be found in the glossary attached hereto. ** Please indicate N/A if the country of tax residence either does not issue a TIN or does not require the TIN to be disclosed. Part V Declaration and Signature I declare that the information on this form is correct and complete. In particular I confirm that I am not tax resident in any other country than the one(s) listed. I undertake to notify the Bank promptly in writing of any change affecting the declarations on this form. Failing to do so, I understand that I may be held personally liable by the Bank for any and every consequence of such changes. I understand that the information contained in this form may be reported to the tax authorities, allowing the Bank to comply with its legal obligations of identification and fight against money laundering and terrorism financing, when applicable. I authorise the Bank to disclose the relevant information to the competent tax authorities in accordance with the Bank s legal obligations existing from time to time, including without limitation for FATCA and CRS. I authorise the Bank to process my personal data, in accordance with the relevant articles of the Bank s applicable general terms and conditions available on the Bank s website, at Personal data provided to the Bank in this form will be processed in accordance with the Bank s applicable general terms and conditions. Individuals have a right of access, rectification, blocking, deletion and objection that may be used as provided in the Privacy Statement of the Bank available on its website. Date... Signature...

3 GLOSSARY These definitions are based on the OECD Common Reporting Standard for Automatic Exchange of Financial Account Information ( The Common Reporting Standard or CRS ) and the FATCA Intergovernmental Agreement concluded between Luxembourg and the United States for FATCA purposes. If you have any questions about these definitions or require further detail then please contact your tax advisor. Control Control over an Entity is generally exercised by the natural person(s) who ultimately has a controlling ownership interest in the Entity. Where no natural person(s) exercises control through ownership interests, the Controlling Person(s) of the Entity will be the natural person(s) who exercises control of the Entity through other means. Where no natural person(s) is identified as exercising control of the Entity, the Controlling Person(s) of the Entity will be the natural person(s) who holds the position of senior managing official. The term Controlling Persons shall be interpreted in a manner consistent with the Financial Action Task Force Recommendations. Controlling Persons Controlling Persons are the natural persons who exercise control over an entity. This definition corresponds to the term beneficial owner as described in Recommendation 10 of the Financial Action Task Force Recommendations (as adopted in February 2012) and as provided in the AML Luxembourg law dated 12 November Luxembourg law of 12 November 2004, provides that Beneficial owner means any natural person who ultimately owns or controls the customer and/or any natural person on whose behalf a transaction or activity is being conducted. The beneficial owner shall at least include, in the case of corporate entities: (i) any natural person who ultimately owns or controls a legal entity through direct or indirect ownership or control over a sufficient percentage of the shares or voting rights in that legal entity, including through bearer share holdings, other than a company listed on a regulated market that is subject to disclosure requirements consistent with Community legislation or subject to equivalent international standards; a percentage of more than 25% shall be deemed sufficient to meet this criterion; (ii) any natural person who otherwise exercises control over the management of a legal entity In the case of a trust, the Controlling Person means the settlor(s), the trustee(s), the protector(s) (if any), the beneficiary(ies) or class(es) of beneficiaries, or any other natural person(s) exercising ultimate effective control over the trust. The settlor(s), the trustee(s), the protector(s) (if any), and the beneficiary(ies) or class(es) of beneficiaries, must always be treated as Controlling Persons of a trust, regardless of whether or not any of them exercises control over the activities of the trust. In the case of a legal arrangement other than a trust, such term means persons in equivalent or similar positions.

4 The following charts provides non-exhaustive examples of the controlling person definition Understanding the examples Individual Legal entity Example 1 Direct or indirect ownership Controlling person Example 2 Indirect ownership Not a controlling person Example 3 Other means (significant part of the shares/voting rights) 50% 50 % 10 % The two natural persons are controlling persons since they are both individuals owning more than 25 % of the shares of the company, either directly, or indirectly. 15 % The controlling person in this example indirectly owns 25 % (15 % + 10 %) of the company. Example 4 Control via other means 75 % No individual owns more than 25 % of the shares. The controlling person can influence the management of the company, given that he holds the most important share in the capital (16,6 %). Example 5 Senior managing official Board members 5% 95 % No individual owns more than 25 % of the shares. The controlling person here is a retired founder of the company. Preference shares allow him to exercise a veto on all decisions of the other shareholders. No shareholder owns more than 25 % of the shares. The members of the board influence/control the management over the company. CRS The Common Reporting Standard is a standard for the automatic exchange of financial account information, drafted by the OECD in July 2014 and endorsed by the G20 Finance Ministers and Central Bank Governors in September This project has later been adopted at a EU level, with the adoption of the Directive 2014/107/EU. CRS Jurisdiction A CRS jurisdiction is a jurisdiction that signed a Competent Authority Agreement. It includes all European Union Member States (by application of Directive 2014/107/UE). NFE or NFFE Means Non-Financial Entity under CRS or Non-Financial Foreign Entity under FATCA and corresponds to any Entity that is not a Financial Institution nor a US person. Passive income In determining what is meant by passive income, reference must be made to each jurisdiction s particular rules. Passive income would generally be considered to include the portion of gross income that consists of: a) dividends and dividend substitute payments (income equivalent to dividend); b) interest and income equivalent to interest; d) rents and royalties, other than rents and royalties derived in the active conduct of a business conducted, at least in part, by employees of the NFE/NFFE;

5 e) annuities; f) the excess of gains over losses from the sale or exchange of Financial Assets that gives rise to the passive income described previously; g) the excess of gains over losses from transactions (including futures, forwards, options, and similar transactions) in any Financial Assets; h) the excess of foreign currency gains over foreign currency losses; i) net income from swaps; or j) amounts received under Cash Value Insurance Contracts. Notwithstanding the foregoing, passive income will not include, in the case of a NFE/NFFE that regularly acts as a dealer in Financial Assets, any income from any transaction entered into in the ordinary course of such dealer s business as such a dealer. Passive NFE / Passive NFFE Under the CRS a Passive NFE means any: (I) NFE that is not an Active NFE; and (ii) an Investment Entity in a non CRS Jurisdiction. Under FATCA, a Passive NFFE means any NFFE that is not (i) an Active NFFE, or (ii) a withholding foreign partnership or withholding foreign trust pursuant to relevant U.S. Treasury Regulations. Reportable Person Any person that is tax resident outside Luxembourg or any US person. Tax resident A person is always tax resident in at least one country. An entity is a Tax Resident in a jurisdiction when it is considered a resident under a tax law of that jurisdiction. The concept of tax residency may differ from jurisdiction to jurisdiction. Common international criteria that may be factored into tax residency include: domicile in a jurisdiction; OR place of effective management or incorporation/organisation; OR nationality. It should be noted that a temporary stay in a jurisdiction can contribute to tax residency. Further it is possible to be considered a Tax Resident in more than one jurisdiction. Government officials, diplomats and military personnel are generally Tax Resident in their home jurisdiction. The domestic laws of the other countries lay down the conditions under which an entity is to be treated as tax resident. Legal arrangements and tax residency: An entity such as a legal arrangement, that has no residence for tax purposes (transparent entities) is tax resident for CRS purposes in the jurisdiction in which its place of effective management is located. If there is no place of effective management, the address of its principal office can serve as a proxy for determining residence. Please note therefore that the residence for CRS purposes may differ from the residence for other purposes. We are not allowed to provide tax advice to determine a client s tax residence. Please consult a tax advisor if you are not sure about your tax residence. US Person Under FATCA, the term US person means a US citizen or resident individual, a partnership or corporation organized in the United States or under the laws of the United States or any State thereof. Further information: OECD Automatic exchange dedicated webpage at: FATCA in Luxembourg: You can visit our ING website at: