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a) The term “United States” means the United States of America, including the States
thereof, but does not include the U.S. Territories. Any reference to a “State” of
the United States includes the District of Columbia.
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b) The term “U.S. Territory” means American Samoa, the Commonwealth of the Northern Mariana
Islands, Guam, the Commonwealth of Puerto Rico, or the U.S. Virgin Islands.
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c) The term “IRS” means the U.S. Internal Revenue Service.
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d) The term “the Netherlands” means the Kingdom of the Netherlands, including the islands
of Bonaire, Sint Eustatius and Saba, and excluding Aruba, Curaçao and Sint Maarten.
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e) The term “Partner Jurisdiction” means a jurisdiction that has in effect an agreement
with the United States to facilitate the implementation of FATCA. The IRS shall publish
a list identifying all Partner Jurisdictions.
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f) The term “Competent Authority” means:
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1. in the case of the United States, the Secretary of the Treasury or his delegate; and
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2. in the case of the Netherlands, the Minister of Finance or his authorized representative.
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g) The term “Financial Institution” means a Custodial Institution, a Depository Institution,
an Investment Entity, or a Specified Insurance Company.
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h) The term “Custodial Institution” means any Entity that holds, as a substantial portion
of its business, financial assets for the account of others. An entity holds financial
assets for the account of others as a substantial portion of its business if the entity’s
gross income attributable to the holding of financial assets and related financial
services equals or exceeds 20 percent of the entity’s gross income during the shorter
of: (i) the three-year period that ends on December 31 (or the final day of a non-calendar
year accounting period) prior to the year in which the determination is being made;
or (ii) the period during which the entity has been in existence.
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i) The term “Depository Institution” means any Entity that accepts deposits in the ordinary
course of a banking or similar business.
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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 of the following activities
or operations for or on behalf of a customer:
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1. trading in money market instruments (cheques, bills, certificates of deposit, derivatives,
etc.); foreign exchange; exchange, interest rate and index instruments; transferable
securities; or commodity futures trading;
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2. individual and collective portfolio management; or
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3. otherwise investing, administering, or managing funds or money on behalf of other
persons.
This subparagraph 1(j) shall be interpreted in a manner consistent with similar language
set forth in the definition of “financial institution” in the Financial Action Task
Force Recommendations.
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k) The term “Specified Insurance Company” means any Entity that is an insurance company
(or the holding company of an insurance company) that issues, or is obligated to make
payments with respect to, a Cash Value Insurance Contract or an Annuity Contract.
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l) The term “Netherlands Financial Institution” means (i) any Financial Institution resident
in the Netherlands, but excluding any branch of such Financial Institution that is
located outside the Netherlands, and (ii) any branch of a Financial Institution not
resident in the Netherlands, if such branch is located in the Netherlands.
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m) The term “Partner Jurisdiction Financial Institution” means (i) any Financial Institution
resident in a Partner Jurisdiction, but excluding any branch of such Financial Institution
that is located outside the Partner Jurisdiction, and (ii) any branch of a Financial
Institution not resident in the Partner Jurisdiction, if such branch is located in
the Partner Jurisdiction.
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n) The term “Reporting Financial Institution” means a Reporting Netherlands Financial
Institution or a Reporting U.S. Financial Institution, as the context requires.
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o) The term “Reporting Netherlands Financial Institution” means any Netherlands Financial
Institution that is not a Non-Reporting Netherlands Financial Institution.
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p) The term “Reporting U.S. Financial Institution” means (i) any Financial Institution
that is resident in the United States, but excluding any branch of such Financial
Institution that is located outside the United States, and (ii) any branch of 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 of income with respect to which information is required to be exchanged under
subparagraph (2)(b) of Article 2 of this Agreement.
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q) The term “Non-Reporting Netherlands Financial Institution” means any Netherlands Financial
Institution, or other Entity resident in the Netherlands that is described in Annex II as a Non-Reporting Netherlands Financial Institution or that otherwise qualifies
as a deemed-compliant FFI or an exempt beneficial owner under relevant U.S. Treasury
Regulations.
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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
Netherlands Financial Institution or other Partner Jurisdiction Financial Institution
other than a Financial Institution treated as a Nonparticipating Financial Institution
pursuant to subparagraph 2(b) of Article 5 of this Agreement or the corresponding provision in an agreement between the United
States and a Partner Jurisdiction.
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s) The term “Financial Account” means an account maintained by a Financial Institution,
and includes:
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1. in the case of 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;
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2. in the case of a Financial Institution not described in subparagraph 1(s)(1) of 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 of
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
of interests was established with a purpose of avoiding reporting in accordance with
this Agreement; and
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3. any Cash Value Insurance Contract and any Annuity Contract issued or maintained by
a Financial Institution, other than a noninvestment-linked, nontransferable immediate
life annuity that is issued to an individual and monetizes a pension or disability
benefit provided under an account, product, or arrangement that is excluded from the
definition of Financial Account in Annex II.
Notwithstanding the foregoing, the term “Financial Account” does not include any account,
product, or arrangement that is excluded from the definition of Financial Account
in Annex II. For purposes of this Agreement, interests are “regularly traded” if there is a meaningful
volume of trading with respect to the interests on an ongoing basis, and an “established
securities market” means an exchange that is officially recognized and supervised
by a governmental authority in which the market is located and that has a meaningful
annual value of shares traded on the exchange. For purposes of this subparagraph 1(s),
an interest in a Financial Institution is not “regularly traded” and shall be treated
as a Financial Account if the holder of the interest (other than a Financial Institution
acting as an intermediary) is registered on the books of such Financial Institution.
The preceding sentence will not apply to interests registered on the books of such
Financial Institution prior to July 1, 2014, and with respect to interests registered
on the books of 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.
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t) The term “Depository Account” includes any commercial, checking, savings, time, or
thrift account, or an account that is evidenced by a certificate of deposit, thrift
certificate, investment certificate, certificate of indebtedness, or other similar
instrument maintained by a Financial Institution in the ordinary course of 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.
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u) The term “Custodial Account” means an account (other than an Insurance Contract or
Annuity Contract) for the benefit of 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 of 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).
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v) The term “Equity Interest” means, in the case of a partnership that is a Financial
Institution, either a capital or profits interest in the partnership. In the case
of a trust that is a Financial Institution, an Equity Interest is considered to be
held by any person treated as a settlor or beneficiary of all or a portion of 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 of 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.
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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 of a specified contingency
involving mortality, morbidity, accident, liability, or property risk.
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x) The term “Annuity Contract” means a contract under which the issuer agrees to make
payments for a period of time determined in whole or in part by reference to the life
expectancy of 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 of the
jurisdiction in which the contract was issued, and under which the issuer agrees to
make payments for a term of years.
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y) The term “Cash Value Insurance Contract” means an Insurance Contract (other than an
indemnity reinsurance contract between two insurance companies) that has a Cash Value
greater than $50,000.
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z) The term “Cash Value” means the greater of (i) the amount that the policyholder is
entitled to receive upon surrender or termination of 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:
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1. a personal injury or sickness benefit or other benefit providing indemnification of
an economic loss incurred upon the occurrence of the event insured against;
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2. a refund to the policyholder of 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 of the Insurance Contract, or
arising from a redetermination of the premium due to correction of posting or other
similar error; or
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3. a policyholder dividend based upon the underwriting experience of the contract or
group involved.
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aa) The term “Reportable Account” means a U.S. Reportable Account or a Netherlands Reportable
Account, as the context requires.
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bb) The term “Netherlands Reportable Account” means a Financial Account maintained by
a Reporting U.S. Financial Institution if: (i) in the case of a Depository Account,
the account is held by an individual resident in the Netherlands and more than $10
of interest is paid to such account in any given calendar year; or (ii) in the case
of a Financial Account other than a Depository Account, the Account Holder is a resident
of the Netherlands, including an Entity that certifies that it is resident in the
Netherlands for tax purposes, with respect to which U.S. source income that is subject
to reporting under chapter 3 of subtitle A or chapter 61 of subtitle F of the U.S.
Internal Revenue Code is paid or credited.
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cc) The term “U.S. Reportable Account” means a Financial Account maintained by a Reporting
Netherlands 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
of the due diligence procedures in Annex I.
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dd) The term “Account Holder” means the person listed or identified as the holder of 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 of another person as agent, custodian, nominee, signatory, investment advisor,
or intermediary, is not treated as holding the account for purposes of this Agreement,
and such other person is treated as holding the account. For purposes of 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 of 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 of 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 of the contract. Upon the maturity of 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.
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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 of 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 of the trust, and (ii) one or more U.S. persons have the
authority to control all substantial decisions of the trust, or an estate of a decedent
that is a citizen or resident of the United States. This subparagraph 1(ee) shall
be interpreted in accordance with the U.S. Internal Revenue Code.
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ff) The term “Specified U.S. Person” means a U.S. Person, other than: (i) a corporation
the stock of which is regularly traded on one or more established securities markets;
(ii) any corporation that is a member of the same expanded affiliated group, as defined
in section 1471(e)(2) of 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 of the United States, any U.S. Territory, any political subdivision
of any of the foregoing, or any wholly owned agency or instrumentality of any one
or more of the foregoing; (v) any organization exempt from taxation under section
501(a) of the U.S. Internal Revenue Code or an individual retirement plan as defined
in section 7701(a)(37) of the U.S. Internal Revenue Code; (vi) any bank as defined
in section 581 of the U.S. Internal Revenue Code; (vii) any real estate investment
trust as defined in section 856 of the U.S. Internal Revenue Code; (viii) any regulated
investment company as defined in section 851 of the U.S. Internal Revenue Code or
any entity registered with the U.S. Securities and Exchange Commission under the Investment
Company Act of 1940 (15 U.S.C. 80a-64); (ix) any common trust fund as defined in section
584(a) of the U.S. Internal Revenue Code; (x) any trust that is exempt from tax under
section 664(c) of the U.S. Internal Revenue Code or that is described in section 4947(a)(1)
of 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 of the United States or any
State; (xii) a broker as defined in section 6045(c) of 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) of the U.S. Internal Revenue Code.
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gg) The term “Entity” means a legal person or a legal arrangement such as a trust.
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hh) The term “Non-U.S. Entity” means an Entity that is not a U.S. Person.
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ii) The term “U.S. Source Withholdable Payment” means any payment of 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.
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jj) An Entity is a “Related Entity” of 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 of more than 50 percent of the vote or value in an Entity.
Notwithstanding the foregoing, the Netherlands may treat an Entity as not a Related
Entity of another Entity if the two Entities are not members of the same expanded
affiliated group as defined in section 1471(e)(2) of the U.S. Internal Revenue Code.
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kk) The term “U.S. TIN” means a U.S. federal taxpayer identifying number.
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ll) The term “Netherlands TIN” means a taxpayer identifying number issued by the Netherlands.
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mm) The term “Controlling Persons” means the natural persons who exercise control over
an Entity. In the case of a trust, such term means the settlor, the trustees, the
protector (if any), the beneficiaries or class of beneficiaries, and any other natural
person exercising ultimate effective control over the trust, and in the case of 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.