Hong Kong — Model 2 IGA (signed 2014-11-13)

# Preamble and ratification history

Agreement between the Government of the United States of America and the
Government of the Hong Kong Special Administrative Region of the People’s Republic of China for Cooperation to Facilitate the Implementation of FATCA Whereas, the Government of the United States of America (the “United States”) and the Government of the Hong Kong Special Administrative Region of the People’s Republic of China (“HKSAR”) (each, a “Party,” and together, the “Parties”) seek to build on their existing relationship with respect to mutual assistance in tax matters and desire to conclude an agreement to improve their cooperation in combating international tax evasion;
Whereas, Article 5 of the Agreement between the Government of the United States of America and the Government of the Hong Kong Special Administrative Region of the People’s Republic of China for the Exchange of Information Relating to Taxes (the “TIEA”), done at Hong Kong on March 25, 2014 , authorizes the exchange of information for tax purposes upon request;
Whereas, the United States of 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, FATCA has raised a number of issues, including that HKSAR financial institutions may not be able to comply with certain aspects of FATCA due to or in relation to any possible or potential impediments;
Whereas, intergovernmental cooperation to facilitate FATCA implementation would address these issues and reduce burdens for HKSAR financial institutions;
Whereas, the Parties desire to conclude an agreement to provide for cooperation to facilitate the implementation of FATCA based on direct reporting by HKSAR financial institutions to the U.S. Internal Revenue Service, supplemented by the exchange of information upon request pursuant to the TIEA, and subject to the confidentiality and other protections provided for therein, including the provisions limiting the use of the information exchanged under the TIEA;
Now, therefore, the Parties have agreed as follows:

# Article 1 — Definitions

1. For purposes of 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 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. 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. c) The term “IRS” means the U.S. Internal Revenue Service. d) The term “the HKSAR” means the Hong Kong Special Administrative Region of the People’s Republic of China. 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. f) The term “Competent Authority” means:
1) in the case of the United States, the Secretary of the Treasury or his delegate; and

2) in the case of the HKSAR, the Secretary for Financial Services and the Treasury or an authority designated by him.

g) The term “Financial Institution” means a Custodial Institution, a Depository Institution, an Investment Entity, or a Specified Insurance Company.

h) The term “Foreign Reportable Amount” means, in accordance with relevant U.S. Treasury Regulations, a payment of fixed or determinable annual or periodical income that would be a withholdable payment if it were from sources within the United States.

i) 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.

j) The term “Depository Institution” means any Entity that accepts deposits in the ordinary course of a banking or similar business.

k) 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:

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;
2) individual and collective portfolio management; or
3) otherwise investing, administering, or managing funds or money on behalf of other persons.

This subparagraph 1(k) 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.

l) 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.

m) The term “HKSAR Financial Institution” means (i) any Financial Institution resident in the HKSAR, but excluding any branch of such Financial Institution that is located outside the HKSAR, and (ii) any branch of a Financial Institution not resident in the HKSAR, if such branch is located in the HKSAR.

n) The term “Partner Jurisdiction Financial Institution” means (i) any Financial Institution established 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 established in the Partner Jurisdiction, if such branch is located in the Partner Jurisdiction.

o) The term “Reporting HKSAR Financial Institution” means any HKSAR Financial Institution that is not a Non-Reporting HKSAR Financial Institution.

p) The term “Non-Reporting HKSAR Financial Institution” means any HKSAR Financial Institution, or other Entity resident in the HKSAR, that is described in Annex II as a Non-Reporting HKSAR Financial Institution or that otherwise qualifies as a deemed-compliant FFI or an exempt beneficial owner under relevant U.S. Treasury Regulations.

q) 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 HKSAR Financial Institution or other Partner Jurisdiction Financial Institution other than a Financial Institution treated as a Nonparticipating Financial Institution pursuant to paragraph 2 of Article 4 of this Agreement or the corresponding provision in an agreement between the United States and a Partner Jurisdiction.

r) The term “New Account” means a Financial Account opened by a Reporting HKSAR Financial Institution on or after July 1, 2014.

s) The term “U.S. Account” means a Financial Account maintained by a Reporting HKSAR 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.
Account if such account is not identified as a U.S. Account after application of the due diligence procedures in Annex I. t) The term “Non-Consenting U.S. Account” means a Financial Account maintained by a Reporting HKSAR Financial Institution as of June 30, 2014 with respect to which (i) a Reporting HKSAR Financial Institution has determined that it is a U.S. Account in accordance with the due diligence procedures in Annex I,

(ii) the laws of the HKSAR prohibit or otherwise restrict the reporting required under an FFI Agreement absent consent of the Account Holder, (iii) the Reporting HKSAR Financial Institution has sought, but was unable to obtain, the required consent to report or the Account Holder’s U.S. TIN; and (iv) the Reporting HKSAR Financial Institution has reported, or was required to report, aggregate account information to the IRS as prescribed under sections 1471 to 1474 of the U.S. Internal Revenue Code and relevant U.S. Treasury Regulations. u) The term “Financial Account” has the meaning set forth in relevant U.S.
Treasury Regulations, but does not include any account that is excluded from the definition of Financial Account in Annex II. v) The term “FFI Agreement” means an agreement that sets forth the requirements, consistent with this Agreement, for the Reporting HKSAR Financial Institution to be treated as complying with the requirements of section 1471(b) of the U.S.

Internal Revenue Code.

w) 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.

x) The terms “Cash Value Insurance Contract” and “Annuity Contract” have the meanings set forth in relevant U.S. Treasury Regulations.

y) 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(y) shall be interpreted in accordance with the U.S. Internal Revenue Code.

z) 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. aa) The term “Entity” means a legal person or a legal arrangement such as a trust. bb) The term “Non-U.S. Entity” means an Entity that is not a U.S. Person. cc) 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 HKSAR 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. dd) The term “U.S. TIN” means a U.S. federal taxpayer identifying number. ee) 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.

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 their respective domestic laws), have the meaning that it has at that time under the law of the Party applying this Agreement, any meaning under the applicable tax laws of that Party prevailing over a meaning given to the term under other laws of that Party.

# Article 2 — Reporting and Exchange of Information

1. Directive to HKSAR Financial Institutions. The HKSAR shall direct all Reporting HKSAR Financial Institutions to: a) register on the IRS FATCA registration website with the IRS by July 1, 2014, and comply with the requirements of an FFI Agreement, including with respect to due diligence, reporting, and withholding; b) with respect to Financial Accounts maintained by Reporting HKSAR Financial Institutions as of June 30, 2014 identified as U.S. Accounts,

(i) request from each Account Holder the Account Holder’s U.S. TIN and consent to report;

(ii) report annually to the IRS, in the time and manner required by an FFI Agreement and relevant U.S. Treasury Regulations, the aggregate information required with respect to Non-Consenting U.S. Accounts; c) with respect to accounts of, or obligations to, Nonparticipating Financial Institutions that exist as of June 30, 2014, and in connection with which the Reporting HKSAR Financial Institution expects to pay a Foreign Reportable Amount,

(i) with respect to calendar years 2015 and 2016, request from each such Nonparticipating Financial Institution the Nonparticipating Financial Institution’s consent to report;

(ii) with respect to calendar years 2015 and 2016, report to the IRS the number of non-consenting Nonparticipating Financial Institutions to which Foreign Reportable Amounts were paid during the year and the aggregate value of all such payments no later than March 15 of the year following the year to which the information relates; d) with respect to New Accounts identified as U.S. Accounts, obtain from each Account Holder consent to report, consistent with the requirements of an FFI Agreement, as a condition of account opening; and e) with respect to new accounts opened by, or obligations entered into with, a Nonparticipating Financial Institution on or after July 1, 2014, and in connection with which the Reporting HKSAR Financial Institution expects to pay a Foreign Reportable Amount, obtain from each such Nonparticipating Financial Institution consent to report, consistent with the requirements of an FFI Agreement, as a condition of opening the account, or entering into the obligation.

2. Exchange of Information.

a) In the context of FATCA implementation, the U.S. Competent Authority may make group requests to the HKSAR Commissioner of Inland Revenue or his authorized representative based on the aggregate information reported to the IRS pursuant to the directive described in subparagraphs 1(b)(ii) and 1(c)(ii) of this Article, for all the information about Non-Consenting U.S. Accounts and Foreign Reportable Amounts paid to Nonparticipating Financial Institutions that the Reporting HKSAR Financial Institution would have had to report under an FFI Agreement had it obtained consent. Such requests shall be made pursuant to Article 5 of the TIEA and shall apply to information in respect of any period that starts on or after the date of entry into force of the TIEA, and for all charges to tax arising on or after the date of entry into force of the TIEA.

b) The information requested pursuant to subparagraph 2(a) of this Article shall be considered information that is foreseeably relevant for carrying out the administration or enforcement of the domestic laws of the United States concerning taxes covered by the TIEA and under which taxation is not contrary to the TIEA, without regard to whether the Reporting HKSAR Financial Institution or another party has contributed to non-compliance of the taxpayers in the group request.

c) The HKSAR Commissioner of Inland Revenue or his authorized representative shall, within six months of the receipt of the group request, provide the U.S.

Competent Authority with all such requested information in the format as requested, or if the information cannot be provided as requested within the aforementioned period, the HKSAR Commissioner of Inland Revenue or his authorized representative shall notify the U.S. Competent Authority and the relevant Reporting HKSAR Financial Institution that there will be a delay in the exchange of the requested information. In such case, the provisions of subparagraph 2(b) of Article 3 of this Agreement shall apply with respect to the Reporting HKSAR Financial Institution, and the HKSAR Commissioner of Inland Revenue or his authorized representative must as soon as possible exchange the requested information with the U.S. Competent Authority pursuant to the terms of the TIEA. d) Notwithstanding subparagraph 2(c) of this Article, the HKSAR Commissioner of Inland Revenue or his authorized representative is not required to obtain and exchange the U.S. TIN of the Account Holder of a Non-Consenting U.S.
Account if such U.S. TIN is not in the records of the Reporting HKSAR Financial Institution. In such case, the HKSAR Commissioner of Inland Revenue or his authorized representative shall obtain and include in the exchanged information the date of birth of the relevant person, if the Reporting HKSAR Financial Institution has such date of birth in its records.

# Article 3 — Application of FATCA to HKSAR Financial Institutions

1. Treatment of Reporting HKSAR Financial Institutions. Subject to the provisions of paragraph 2 of Article 4 of this Agreement, each Reporting HKSAR Financial Institution that registers with the IRS on the IRS FATCA registration website and complies with the terms of an FFI Agreement shall be treated as complying with the requirements of, and as not subject to withholding under, section 1471 of the U.S. Internal Revenue Code.
2. Suspension of Rules Relating to Non-Consenting U.S. Accounts. a) Subject to subparagraph 2(b) of this Article, the United States shall not require a Reporting HKSAR Financial Institution to withhold tax under section 1471 or 1472 of the U.S. Internal Revenue Code with respect to an account held by a recalcitrant account holder (as defined in section 1471(d)(6) of the U.S. Internal Revenue Code), or to close such account, if:

(i) the Reporting HKSAR Financial Institution complies with the directives in paragraph 1 of Article 2 of this Agreement with respect to the account; and

(ii) the HKSAR Commissioner of Inland Revenue or his authorized representative exchanges with the U.S. Competent Authority the requested information described in subparagraph 2(a) of Article 2 of this Agreement within six months from the date of the receipt of such request. b) If the condition of subparagraph 2(a)(ii) of this Article is not fulfilled, the Reporting HKSAR Financial Institution shall be required to treat the account as held by a recalcitrant account holder as defined in relevant U.S. Treasury Regulations, including by withholding tax where required by those U.S. Treasury Regulations, beginning on the date that is six months after the date of the receipt of the request described in subparagraph 2(a) of Article 2 of this Agreement and ending on the date on which the HKSAR Commissioner of Inland Revenue or his authorized representative exchanges the requested information with the U.S.
Competent Authority.
3. Specific Treatment of HKSAR Retirement Plans. The United States shall treat as deemed-compliant FFIs or exempt beneficial owners, as appropriate, for purposes of sections 1471 and 1472 of the U.S. Internal Revenue Code, HKSAR retirement plans described in Annex II. For this purpose, a HKSAR retirement plan includes an Entity established or located in, and regulated by, the HKSAR, or a predetermined contractual or legal arrangement, operated to provide pension or retirement benefits or earn income for providing such benefits under the laws of the HKSAR and regulated with respect to contributions, distributions, reporting, sponsorship, and taxation.
4. Identification and Treatment of Other Deemed Compliant FFIs and Exempt Beneficial Owners. The United States shall treat each Non-Reporting HKSAR Financial Institution as a deemed-compliant FFI or as an exempt beneficial owner, as appropriate, for purposes of section 1471 of the U.S. Internal Revenue Code.
5. Special Rules Regarding Related Entities and Branches That Are Nonparticipating Financial Institutions. If a HKSAR Financial Institution, that otherwise meets the requirements described in Article 2 of this Agreement or is described in paragraph 3 or 4 of this Article, has a Related Entity or branch that operates in a jurisdiction that prevents such Related Entity or branch from fulfilling the requirements of a participating FFI or deemed-compliant FFI for purposes of section 1471 of the U.S. Internal Revenue Code or has a Related Entity or branch that is treated as a Nonparticipating Financial Institution solely due to the expiration of the transitional rule for limited FFIs and limited branches under relevant U.S. Treasury Regulations, such HKSAR Financial Institution shall continue to be treated as a participating FFI, deemed-compliant FFI, or exempt beneficial owner, as appropriate, for purposes of section 1471 of the U.S. Internal Revenue Code, provided that: a) the HKSAR Financial Institution treats each such Related Entity or branch as a separate Nonparticipating Financial Institution 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 to the IRS the information with respect to those accounts as required under section 1471 of 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 HKSAR Financial Institution or any other Related Entity to circumvent the obligations under this Agreement or under section 1471 of the U.S. Internal Revenue Code, as appropriate.
6. Coordination of Definitions with U.S. Treasury Regulations. Notwithstanding Article 1 of this Agreement and the definitions provided in the Annexes to this Agreement, in implementing this Agreement, the HKSAR may use, and may permit HKSAR Financial Institutions to use, a definition in relevant U.S. Treasury Regulations in lieu of a corresponding definition in this Agreement, provided that such application would not frustrate the purposes of this Agreement.

# Article 4 — Verification and Enforcement

1. Minor and Administrative Errors. Consistent with the terms of an FFI Agreement, the U.S. Competent Authority may make an inquiry directly to a Reporting HKSAR Financial Institution where it has reason to believe that administrative errors or other minor errors may have led to incorrect or incomplete information reporting inconsistent with the requirements of an FFI Agreement. The U.S. Competent Authority shall notify the HKSAR Competent Authority when the U.S. Competent Authority makes such an inquiry of a Reporting HKSAR Financial Institution regarding the Reporting HKSAR Financial Institution’s compliance with the conditions set forth in this Agreement.
2. Significant Non-Compliance. The U.S. Competent Authority shall notify the HKSAR Competent Authority when the U.S. Competent Authority has determined that there is significant non-compliance with the requirements of an FFI Agreement or this Agreement with respect to a Reporting HKSAR Financial Institution. If the non-compliance is not resolved within a period of 12 months after notification of significant non-compliance is first provided by the U.S. Competent Authority, the United States shall treat the Reporting HKSAR Financial Institution as a Nonparticipating Financial Institution pursuant to this paragraph 2.
3. Competent Authority Consultation. The Competent Authorities of HKSAR and the United States may consult on notified cases of significant non-compliance pursuant to paragraph 2 of this Article.
4. Reliance on Third Party Service Providers. In accordance with the provisions of an FFI Agreement and relevant U.S. Treasury Regulations, Reporting HKSAR Financial Institutions may use third party service providers to fulfill the requirements of an FFI Agreement, but these requirements shall remain the responsibility of the Reporting HKSAR Financial Institutions.

# Article 5

Consistency in the Application of FATCA to Partner Jurisdictions
1. The HKSAR shall be granted the benefit of any more favorable terms under Article 3 or Annex I of this Agreement relating to the application of FATCA to HKSAR 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 the HKSAR described in Article 2 of this Agreement, and subject to the same terms and conditions as described therein and in Articles 4, 5, 7, and 8 of this Agreement.
2. The United States shall notify the HKSAR of 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 of the date of signing of the agreement incorporating the more favorable terms, unless the HKSAR declines in writing the application thereof.

# Article 6 — Cooperation Under the Agreement

Consistent with its obligations under the TIEA, the United States shall continue to cooperate with the HKSAR to respond to requests pursuant to the TIEA to collect and exchange information on accounts held in U.S. financial institutions by residents of the HKSAR.

# Article 7 — Consultations and Amendments

1. In case any difficulties in the implementation or interpretation of this Agreement arise, either Party may request consultations to develop appropriate measures to ensure the fulfillment of this Agreement.
2. This Agreement may be amended by written mutual agreement of the Parties. Unless otherwise agreed upon, such an amendment shall enter into force through the same procedures as set forth in paragraph 1 of Article 9 of this Agreement.

# Article 8 — Annexes

The Annexes form an integral part of this Agreement.

# Article 9 — Term of Agreement

1. This Agreement shall enter into force on the later of the date of the HKSAR’s written notification to the United States that the HKSAR has completed its necessary internal procedures for entry into force of this Agreement, or the entry into force of the TIEA.
2. Either Party may terminate this Agreement by giving notice of termination in writing to the other Party. Such termination shall become effective on the first day of the month following the expiration of a period of 12 months after the date of the notice of termination.
In witness whereof, the undersigned, being duly authorized thereto by their respective Governments, have signed this Agreement.
Done at [____], in duplicate, in the English language, this [__] day of [____], 20[__].
FOR THE GOVERNMENT OF THE
UNITED STATES OF AMERICA:
FOR THE GOVERNMENT OF THE
HONG KONG SPECIAL
ADMINISTRATIVE REGION OF THE
PEOPLE’S REPUBLIC OF CHINA:

# Annex I

DUE DILIGENCE OBLIGATIONS FOR IDENTIFYING AND REPORTING ON U.S.
ACCOUNTS AND ON PAYMENTS TO CERTAIN NONPARTICIPATING FINANCIAL
INSTITUTIONS
I. General.
A. Reporting HKSAR Financial Institutions must identify U.S. Accounts and accounts held by Nonparticipating Financial Institutions in accordance with the due diligence procedures contained in this Annex I.
B. For purposes of the Agreement,
1. All dollar amounts are in U.S. dollars and shall be read to include the equivalent in other currencies.
2. Except as otherwise provided herein, the balance or value of an account shall be determined as of the last day of the calendar year, or in the case of a Cash Value Insurance Contract or an Annuity Contract, as of the last day of the calendar year or the most recent contract anniversary date.
3. Subject to subparagraph E(1) of section II of this Annex I, an account shall be treated as a U.S. Account beginning as of the date it is identified as such pursuant to the due diligence procedures in this Annex I.
4. Unless otherwise provided, information with respect to a U.S. Account must be reported annually in the calendar year following the year to which the information relates.
C. As an alternative to the procedures described in each section of this Annex I, Reporting HKSAR Financial Institutions may rely on the procedures described in relevant U.S. Treasury Regulations to establish whether an account is a U.S. Account or an account held by a Nonparticipating Financial Institution, except that if an account is treated as held by a recalcitrant account holder under procedures described in relevant U.S. Treasury Regulations, such account shall be treated as a U.S. Account for purposes of this Agreement. Reporting HKSAR Financial Institutions may make such election separately for each section of this Annex I either with respect to all relevant Financial Accounts or, separately, with respect to any clearly identified group of such accounts (such as by line of business or the location of where the account is maintained). Except as otherwise provided in an FFI Agreement, once a Reporting HKSAR Financial Institution has chosen to rely on the procedures in relevant U.S. Treasury Regulations with respect to any group of accounts, such Reporting HKSAR Financial Institution must continue to apply such procedures consistently in all subsequent years, unless there has been a material modification to relevant U.S. Treasury Regulations.
II. Preexisting Individual Accounts. The following rules and procedures apply for purposes of identifying U.S. Accounts among Preexisting Accounts held by individuals (“Preexisting Individual Accounts”).
A. Accounts Not Required to Be Reviewed, Identified, or Reported. Unless the Reporting HKSAR Financial Institution elects otherwise, either with respect to all Preexisting Individual Accounts or, separately, with respect to any clearly identified group of such accounts, the following Preexisting Individual Accounts are not required to be reviewed, identified, or reported as U.S. Accounts:
1. Subject to subparagraph E(2) of this section, a Preexisting Individual Account with a balance or value that does not exceed $50,000 as of June 30, 2014.
2. Subject to subparagraph E(2) of this section, a Preexisting Individual Account that is a Cash Value Insurance Contract or an Annuity Contract with a balance or value of $250,000 or less as of June 30, 2014.
3. A Preexisting Individual Account that is a Cash Value Insurance Contract or an Annuity Contract, provided the law or regulations of the HKSAR or the United States effectively prevent the sale of such a Cash Value Insurance Contract or an Annuity Contract to U.S. residents (e.g., if the relevant Financial Institution does not have the required registration under U.S. law, and the law of the HKSAR requires reporting or withholding with respect to insurance products held by residents of the HKSAR).
4. A Depository Account with a balance of $50,000 or less.
B. Review Procedures for Preexisting Individual Accounts With a Balance or
Value as of June 30, 2014, that Exceeds $50,000 ($250,000 for a Cash Value
Insurance Contract or Annuity Contract), But Does Not Exceed $1,000,000 (“Lower
Value Accounts”).

1. Electronic Record Search. The Reporting HKSAR Financial Institution must review electronically searchable data maintained by the Reporting HKSAR Financial Institution for any of the following U.S. indicia:

a) Identification of the Account Holder as a U.S. citizen or resident;

b) Unambiguous indication of a U.S. place of birth;

c) Current U.S. mailing or residence address (including a U.S. post office box);

d) Current U.S. telephone number;

e) Standing instructions to transfer funds to an account maintained in the United States;

f) Currently effective power of attorney or signatory authority granted to a person with a U.S. address; or g) An “in-care-of” or “hold mail” address that is the sole address the Reporting HKSAR Financial Institution has on file for the Account Holder. In the case of a Preexisting Individual Account that is a Lower Value Account, an “in-care-of” address outside the United States or “hold mail” address shall not be treated as U.S. indicia.

2. If none of the U.S. indicia listed in subparagraph B(1) of this section are discovered in the electronic search, then no further action is required until there is a change in circumstances that results in one or more U.S. indicia being associated with the account, or the account becomes a High Value Account described in paragraph D of this section.
3. If any of the U.S. indicia listed in subparagraph B(1) of this section are discovered in the electronic search, or if there is a change in circumstances that results in one or more U.S. indicia being associated with the account, then the Reporting HKSAR Financial Institution must treat the account as a U.S. Account unless it elects to apply subparagraph B(4) of this section and one of the exceptions in such subparagraph applies with respect to that account.
4. Notwithstanding a finding of U.S. indicia under subparagraph B(1) of this section, a Reporting HKSAR Financial Institution is not required to treat an account as a U.S. Account if: a) Where the Account Holder information unambiguously indicates a U.S. place of birth, the Reporting HKSAR Financial Institution obtains, or has previously reviewed and maintains a record of:

(1) A self-certification that the Account Holder is neither a
U.S. citizen nor a U.S. resident for tax purposes (which may be on an IRS Form W-8 or other similar agreed form);

(2) A non-U.S. passport or other government-issued identification evidencing the Account Holder’s citizenship or nationality in a country other than the United States; and

(3) A copy of the Account Holder’s Certificate of Loss of
Nationality of the United States or a reasonable explanation of:

(a) The reason the Account Holder does not have such a certificate despite relinquishing U.S. citizenship; or

(b) The reason the Account Holder did not obtain U.S. citizenship at birth. b) Where the Account Holder information contains a current U.S. mailing or residence address, or one or more U.S. telephone numbers that are the only telephone numbers associated with the account, the Reporting HKSAR Financial Institution obtains, or has previously reviewed and maintains a record of:

(1) A self-certification that the Account Holder is neither a
U.S. citizen nor a U.S. resident for tax purposes (which may be on an IRS Form W-8 or other similar agreed form); and

(2) Documentary evidence, as defined in paragraph D of section VI of 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 HKSAR Financial Institution obtains, or has previously reviewed and maintains a record of:

(1) A self-certification that the Account Holder is neither a
U.S. citizen nor a U.S. resident for tax purposes (which may be on an IRS Form W-8 or other similar agreed form); and

(2) Documentary evidence, as defined in paragraph D of section VI of this Annex I, establishing the Account Holder’s non-U.S. status. d) Where the Account Holder information contains a currently effective power of attorney or signatory authority granted to a person with a U.S. address, has an “in-care-of” 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 HKSAR Financial Institution obtains, or has previously reviewed and maintains a record of:

(1) A self-certification that the Account Holder is neither a
U.S. citizen nor a U.S. resident for tax purposes (which may be on an IRS Form W-8 or other similar agreed form); or

(2) Documentary evidence, as defined in paragraph D of section VI of 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 of 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 of 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(1) of this section being associated with the account, then the Reporting HKSAR Financial Institution must treat the account as a U.S. Account unless subparagraph B(4) of this section applies.
3. Except for Depository Accounts described in subparagraph A(4) of this section, any Preexisting Individual Account that has been identified as a U.S.
Account under this section shall be treated as a U.S. 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 of June 30, 2014, or December 31 of
2015 or Any Subsequent Year (“High Value Accounts”).
1. Electronic Record Search. The Reporting HKSAR Financial Institution must review electronically searchable data maintained by the Reporting HKSAR Financial Institution for any of the U.S. indicia described in subparagraph B(1) of this section.

2. Paper Record Search. If the Reporting HKSAR Financial Institution’s electronically searchable databases include fields for, and capture all of the information described in, subparagraph D(3) of this section, then no further paper record search is required. If the electronic databases do not capture all of this information, then with respect to a High Value Account, the Reporting HKSAR 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 HKSAR Financial Institution within the last five years for any of the U.S. indicia described in subparagraph B(1) of this section:

a) The most recent documentary evidence collected with respect to the account;

b) The most recent account opening contract or documentation;

c) The most recent documentation obtained by the Reporting HKSAR Financial Institution pursuant to AML/KYC Procedures or for other regulatory purposes;

d) Any power of attorney or signature authority forms currently in effect; and e) Any standing instructions to transfer funds currently in effect.

3. Exception Where Databases Contain Sufficient Information. A

Reporting HKSAR Financial Institution is not required to perform the paper record search described in subparagraph D(2) of this section if the Reporting HKSAR Financial Institution’s electronically searchable information includes the following:

a) The Account Holder’s nationality or residence status;

b) The Account Holder’s residence address and mailing address currently on file with the Reporting HKSAR Financial Institution;

c) The Account Holder’s telephone number(s) currently on file, if any, with the Reporting HKSAR Financial Institution;

d) Whether there are standing instructions to transfer funds in the account to another account (including an account at another branch of the Reporting HKSAR Financial Institution or another Financial Institution);

e) Whether there is a current “in-care-of” address or “hold mail” address for the Account Holder; and f) Whether there is any power of attorney or signatory authority for the account.

4. Relationship Manager Inquiry for Actual Knowledge. In addition to the electronic and paper record searches described above, the Reporting HKSAR Financial Institution must treat as a U.S. Account any High Value Account assigned to a relationship manager (including any Financial Accounts aggregated with such High Value Account) if the relationship manager has actual knowledge that the Account Holder is a Specified U.S. Person.

5. Effect of Finding U.S. Indicia.

a) If none of the U.S. indicia listed in subparagraph B(1) of this section are discovered in the enhanced review of High Value Accounts described above, and the account is not identified as held by a Specified U.S. Person in subparagraph D(4) of this section, then no further action is required until there is a change in circumstances that results in one or more U.S. indicia being associated with the account.

b) If any of the U.S. indicia listed in subparagraph B(1) of this section are discovered in the enhanced review of High Value Accounts described above, or if there is a subsequent change in circumstances that results in one or more U.S. indicia being associated with the account, then the Reporting HKSAR Financial Institution must treat the account as a U.S. Account unless it elects to apply subparagraph B(4) of this section and one of the exceptions in such subparagraph applies with respect to that account.

c) Except for Depository Accounts described in subparagraph A(4) of this section, any Preexisting Individual Account that has been identified as a U.S. Account under this section shall be treated as a U.S.

Account in all subsequent years, unless the Account Holder ceases to be a Specified U.S. Person.
E. Additional Procedures Applicable to High Value Accounts.
1. If a Preexisting Individual Account is a High Value Account as of June 30, 2014, the Reporting HKSAR Financial Institution must complete the enhanced review procedures described in paragraph D of this section with respect to such account by June 30, 2015. If based on this review such account is identified as a U.S. Account on or before December 31, 2014, the Reporting HKSAR Financial Institution must report the required information about such account with respect to 2014 in the first report on the account and on an annual basis thereafter. In the case of an account identified as a U.S. Account after December 31, 2014 and on or before June 30, 2015, the Reporting HKSAR Financial Institution is not required to report information about such account with respect to 2014, but must report information about the account on an annual basis thereafter.
2. If a Preexisting Individual Account is not a High Value Account as of June 30, 2014, but becomes a High Value Account as of the last day of 2015 or any subsequent calendar year, the Reporting HKSAR Financial Institution must complete the enhanced review procedures described in paragraph D of this section with respect to such account within six months after the last day of the calendar year in which the account becomes a High Value Account. If based on this review such account is identified as a U.S. Account, the Reporting HKSAR Financial Institution must report the required information about such account with respect to the year in which it is identified as a U.S. Account and subsequent years on an annual basis, unless the Account Holder ceases to be a Specified U.S.
Person.
3. Once a Reporting HKSAR Financial Institution applies the enhanced review procedures described in paragraph D of this section to a High Value Account, the Reporting HKSAR Financial Institution is not required to re-apply such procedures, other than the relationship manager inquiry described in subparagraph D(4) of this section, to the same High Value Account in any subsequent year.
4. If there is a change of circumstances with respect to a High Value Account that results in one or more U.S. indicia described in subparagraph B(1) of this section being associated with the account, then the Reporting HKSAR Financial Institution must treat the account as a U.S. Account unless it elects to apply subparagraph B(4) of this section and one of the exceptions in such subparagraph applies with respect to that account.
5. A Reporting HKSAR Financial Institution must implement procedures to ensure that a relationship manager identifies any change in circumstances of an account. For example, if a relationship manager is notified that the Account Holder has a new mailing address in the United States, the Reporting HKSAR Financial Institution is required to treat the new address as a change in circumstances and, if it elects to apply subparagraph B(4) of this section, is required to obtain the appropriate documentation from the Account Holder.
F. Preexisting Individual Accounts That Have Been Documented for Certain Other Purposes. A Reporting HKSAR Financial Institution that has previously obtained documentation from an Account Holder to establish the Account Holder’s status as neither a U.S. citizen nor a U.S. resident in order to meet its obligations under a qualified intermediary, withholding foreign partnership, or withholding foreign trust agreement with the IRS, or to fulfill its obligations under chapter 61 of Title 26 of the United States Code, is not required to perform the procedures described in subparagraph B(1) of this section with respect to Lower Value Accounts or subparagraphs D(1) through D(3) of this section with respect to High Value Accounts.
III. New Individual Accounts. The following rules and procedures apply for purposes of identifying U.S. Accounts among Financial Accounts held by individuals and opened on or after July 1, 2014 (“New Individual Accounts”).
A. Accounts Not Required to Be Reviewed, Identified, or Reported. Unless the Reporting HKSAR Financial Institution elects otherwise, either with respect to all New Individual Accounts or, separately, with respect to any clearly identified group of such accounts, the following New Individual Accounts are not required to be reviewed, identified, or reported as U.S. Accounts:
1. A Depository Account unless the account balance exceeds $50,000 at the end of any calendar year.
2. A Cash Value Insurance Contract unless the cash value exceeds $50,000 at the end of any calendar year.
B. Other New Individual Accounts. With respect to New Individual Accounts not described in paragraph A of this section, upon account opening (or within 90 days after the end of the calendar year in which the account ceases to be described in paragraph A of this section), the Reporting HKSAR Financial Institution must obtain a selfcertification, which may be part of the account opening documentation, that allows the Reporting HKSAR Financial Institution to determine whether the Account Holder is resident in the United States for tax purposes (for this purpose, a U.S. citizen is considered to be resident in the United States for tax purposes, even if the Account Holder is also a tax resident of another jurisdiction) and confirm the reasonableness of such self-certification based on the information obtained by the Reporting HKSAR Financial Institution in connection with the opening of the account, including any documentation collected pursuant to AML/KYC Procedures.
1. If the self-certification establishes that the Account Holder is resident in the United States for tax purposes, the Reporting HKSAR Financial Institution must treat the account as a U.S. Account and obtain a self-certification that includes the Account Holder’s U.S. TIN (which may be an IRS Form W-9 or other similar agreed form).
2. If there is a change of circumstances with respect to a New Individual Account that causes the Reporting HKSAR Financial Institution to know, or have reason to know, that the original self-certification is incorrect or unreliable, the Reporting HKSAR Financial Institution cannot rely on the original selfcertification and must obtain a valid self-certification that establishes whether the Account Holder is a U.S. citizen or resident for U.S. tax purposes. If the Reporting HKSAR Financial Institution is unable to obtain a valid selfcertification, the Reporting HKSAR Financial Institution must treat the account as a Non-Consenting U.S. Account.
IV. Preexisting Entity Accounts. The following rules and procedures apply for purposes of identifying U.S. Accounts and accounts held by Nonparticipating Financial Institutions among Preexisting Accounts held by Entities (“Preexisting Entity Accounts”).
A. Entity Accounts Not Required to Be Reviewed, Identified, or Reported.
Unless the Reporting HKSAR Financial Institution elects otherwise, either with respect to all Preexisting Entity Accounts or, separately, with respect to any clearly identified group of such accounts, a Preexisting Entity Account with an account balance or value that does not exceed $250,000 as of June 30, 2014, is not required to be reviewed, identified, or reported as a U.S. Account until the account balance or value exceeds $1,000,000.
B. Entity Accounts Subject to Review. A Preexisting Entity Account that has an account balance or value that exceeds $250,000 as of June 30, 2014, and a Preexisting Entity Account that does not exceed $250,000 as of June 30, 2014 but the account balance or value of which exceeds $1,000,000 as of the last day of 2015 or any subsequent calendar year, must be reviewed in accordance with the procedures set forth in paragraph D of this section.
C. Entity Accounts With Respect to Which Reporting Is Required. With respect to Preexisting Entity Accounts described in paragraph B of this section, only accounts that are held by one or more Entities that are Specified U.S. Persons, or by Passive NFFEs with one or more Controlling Persons who are U.S. citizens or residents, shall be treated as U.S. Accounts. In addition, accounts held by Nonparticipating Financial Institutions shall be treated as accounts for which aggregate payments are required to be reported under an FFI Agreement.
D. Review Procedures for Identifying Entity Accounts With Respect to Which Reporting Is Required. For Preexisting Entity Accounts described in paragraph B of this section, the Reporting HKSAR Financial Institution must apply the following review procedures to determine whether the account is held by one or more Specified U.S.
Persons, by Passive NFFEs with one or more Controlling Persons who are U.S. citizens or residents, or by Nonparticipating Financial Institutions:
1. Determine Whether the Entity Is a Specified U.S. Person. a) Review information maintained for regulatory or customer relationship purposes (including information collected pursuant to AML/KYC Procedures) to determine whether the information indicates that the Account Holder is a U.S. Person. For this purpose, information indicating that the Account Holder is a U.S. Person includes a U.S. place of incorporation or organization, or a U.S. address. b) If the information indicates that the Account Holder is a U.S.
Person, the Reporting HKSAR Financial Institution must treat the account as a U.S. Account unless it obtains a self-certification from the Account Holder (which may be on an IRS Form W-8 or W-9, or a similar agreed form), or reasonably determines based on information in its possession or that is publicly available, that the Account Holder is not a Specified U.S. Person.
2. Determine Whether a Non-U.S. Entity Is a Financial Institution. a) Review information maintained for regulatory or customer relationship purposes (including information collected pursuant to AML/KYC Procedures) to determine whether the information indicates that the Account Holder is a Financial Institution. b) If the information indicates that the Account Holder is a Financial Institution, or the Reporting HKSAR Financial Institution verifies the Account Holder’s Global Intermediary Identification Number on the published IRS FFI list, then the account is not a U.S. Account.
3. Determine Whether a Financial Institution Is a Nonparticipating
Financial Institution Payments to Which Are Subject to Aggregate
Reporting Consistent with the Requirements of an FFI Agreement. a) Subject to subparagraph D(3)(b) of this section, a Reporting HKSAR Financial Institution may determine that the Account Holder is a HKSAR Financial Institution or other Partner Jurisdiction Financial Institution if the Reporting HKSAR Financial Institution reasonably determines that the Account Holder has such status on the basis of the Account Holder’s Global Intermediary Identification Number on the published IRS FFI list or other information that is publicly available or in the possession of the Reporting HKSAR Financial Institution, as applicable. In such case, no further review, identification, or reporting is required with respect to the account. b) If the Account Holder is a HKSAR 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.
Account, but payments to the Account Holder must be reported consistent with the requirements of an FFI Agreement. c) If the Account Holder is not a HKSAR Financial Institution or other Partner Jurisdiction Financial Institution, then the Reporting HKSAR Financial Institution must treat the Account Holder as a Nonparticipating Financial Institution payments to which are reportable consistent with the requirements of an FFI Agreement, unless the Reporting HKSAR Financial Institution:

(1) Obtains a self-certification (which may be on an IRS Form
W-8 or similar agreed form) from the Account Holder that it is a certified deemed-compliant FFI, or an exempt beneficial owner, as those terms are defined in relevant U.S. Treasury Regulations; or

(2) In the case of a participating FFI or registered deemedcompliant FFI, verifies the Account Holder’s Global Intermediary Identification Number on the published IRS FFI list.
4. Determine Whether an Account Held by an NFFE Is a U.S. Account.

With respect to an Account Holder of a Preexisting Entity Account that is not identified as either a U.S. Person or a Financial Institution, the Reporting HKSAR Financial Institution must identify (i) whether the Account Holder has Controlling Persons, (ii) whether the Account Holder is a Passive NFFE, and (iii) whether any of the Controlling Persons of the Account Holder is a U.S. citizen or resident. In making these determinations the Reporting HKSAR Financial Institution must follow the guidance in subparagraphs D(4)(a) through D(4)(d) of this section in the order most appropriate under the circumstances.

a) For purposes of determining the Controlling Persons of an Account Holder, a Reporting HKSAR Financial Institution may rely on information collected and maintained pursuant to AML/KYC Procedures.

b) For purposes of determining whether the Account Holder is a Passive NFFE, the Reporting HKSAR 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 of determining whether a Controlling Person of a Passive NFFE is a U.S. citizen or resident for tax purposes, a Reporting HKSAR Financial Institution may rely on:

(1) Information collected and maintained pursuant to
AML/KYC Procedures in the case of a Preexisting Entity Account held by one or more NFFEs with an account balance or value that does not exceed $1,000,000; or

(2) 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 or such Controlling Person in the case of 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 of a Passive NFFE is a U.S. citizen or resident, the account shall be treated as a U.S. Account.
E. Timing of Review and Additional Procedures Applicable to Preexisting
Entity Accounts.
1. Review of Preexisting Entity Accounts with an account balance or value that exceeds $250,000 as of June 30, 2014 must be completed by June 30, 2016.
2. Review of Preexisting Entity Accounts with an account balance or value that does not exceed $250,000 as of June 30, 2014, but exceeds $1,000,000 as of December 31 of 2015 or any subsequent year, must be completed within six months after the last day of the calendar year in which the account balance or value exceeds $1,000,000.
3. If there is a change of circumstances with respect to a Preexisting Entity Account that causes the Reporting HKSAR Financial Institution to know, or have reason to know, that the self-certification or other documentation associated with an account is incorrect or unreliable, the Reporting HKSAR Financial Institution must redetermine the status of the account in accordance with the procedures set forth in paragraph D of this section.
V. New Entity Accounts. The following rules and procedures apply for purposes of identifying U.S. 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 HKSAR Financial Institution elects otherwise, either with respect to all New Entity Accounts or, separately, with respect to any clearly identified group of such accounts, 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 HKSAR 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 of this section, the Reporting HKSAR Financial Institution must determine whether the Account Holder is: (i) a Specified U.S. Person; (ii) a HKSAR 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; or (iv) an Active NFFE or Passive NFFE.
1. Subject to subparagraph B(2) of this section, a Reporting HKSAR Financial Institution may determine that the Account Holder is an Active NFFE, a HKSAR Financial Institution, or other Partner Jurisdiction Financial Institution if the Reporting HKSAR Financial Institution reasonably determines that the Account Holder has such status on the basis of the Account Holder’s Global Intermediary Identification Number or other information that is publicly available or in the possession of the Reporting HKSAR Financial Institution, as applicable.
2. If the Account Holder is a HKSAR 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. Account, but payments to the Account Holder must be reported consistent with the requirements of an FFI Agreement.

3. In all other cases, a Reporting HKSAR 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) If the Account Holder is a Specified U.S. Person, the Reporting HKSAR Financial Institution must treat the account as a U.S. Account.

b) If the Account Holder is a Passive NFFE, the Reporting HKSAR Financial Institution must identify the Controlling Persons as determined under AML/KYC Procedures, and must determine whether any such person is a U.S. citizen or resident on the basis of a self-certification from the Account Holder or such person. If any such person is a U.S. citizen or resident, the Reporting HKSAR Financial Institution must treat the account as a U.S. 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(3)(d) of this section, a HKSAR 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 of the Controlling Persons of which is a U.S. citizen or resident, then the account is not a U.S. Account, and no reporting is required with respect to the account. d) If the Account Holder is a Nonparticipating Financial Institution (including a HKSAR 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. Account, but payments to the Account Holder must be reported consistent with the requirements of an FFI 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 HKSAR Financial Institution may not rely on a self-certification or documentary evidence if the Reporting HKSAR 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 of this Annex I.
1. AML/KYC Procedures. “AML/KYC Procedures” means the customer due diligence procedures of a Reporting HKSAR Financial Institution pursuant to the anti-money laundering or similar requirements of the HKSAR to which such Reporting HKSAR 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(4)(j) of this section, and also includes any Non-U.S. Entity that is established in the HKSAR or another Partner Jurisdiction and that is not a Financial Institution.
3. Passive NFFE. 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.

4. Active NFFE. An “Active NFFE” means any NFFE that meets any of the following criteria:

a) Less than 50 percent of the NFFE’s gross income for the preceding calendar year or other appropriate reporting period is passive income and less than 50 percent of 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 of passive income;

b) The stock of the NFFE is regularly traded on an established securities market or the NFFE is a Related Entity of an Entity the stock of which is regularly traded on an established securities market. 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;

c) The NFFE is organized in a U.S. Territory and all of the owners of the payee are bona fide residents of that U.S. Territory;

d) The NFFE is a government (other than the U.S. government), a political subdivision of such government (which, for the avoidance of doubt, includes a state, province, county, or municipality), or a public body performing a function of such government or a political subdivision thereof, a government of a U.S. Territory, an international organization, a non-U.S. central bank of issue, or an Entity wholly owned by one or more of the foregoing;

e) Substantially all of the activities of the NFFE consist of holding (in whole or in part) the outstanding stock of, or providing financing and services to, one or more subsidiaries that engage in trades or businesses other than the business of 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 of a Financial Institution, provided that the NFFE shall not qualify for this exception after the date that is 24 months after the date of the initial organization of the NFFE;

g) The NFFE was not a Financial Institution in the past five years, and is in the process of liquidating its assets or is reorganizing with the intent to continue or recommence operations in a business other than that of 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 of any such Related Entities is primarily engaged in a business other than that of a Financial Institution;

i) The NFFE is an “excepted NFFE” as described in relevant U.S.

Treasury Regulations; or j) The NFFE meets all of the following requirements: i. It is established and operated in its jurisdiction of residence exclusively for religious, charitable, scientific, artistic, cultural, athletic, or educational purposes; or it is established and operated in its jurisdiction of residence and it is a professional organization, business league, chamber of commerce, labor organization, agricultural or horticultural organization, civic league or an organization operated exclusively for the promotion of social welfare; ii. It is exempt from income tax in its jurisdiction of residence; iii. It has no shareholders or members who have a proprietary or beneficial interest in its income or assets; iv. The applicable laws of the NFFE’s jurisdiction of residence or the NFFE’s formation documents do not permit any income or assets of the NFFE to be distributed to, or applied for the benefit of, a private person or non-charitable Entity other than pursuant to the conduct of the NFFE’s charitable activities, or as payment of reasonable compensation for services rendered, or as payment representing the fair market value of property which the NFFE has purchased; and v. The applicable laws of the NFFE’s jurisdiction of residence or the NFFE’s formation documents require that, upon the NFFE’s liquidation or dissolution, all of its assets be distributed to a governmental entity or other non-profit organization, or escheat to the government of the NFFE’s jurisdiction of residence or any political subdivision thereof.
5. Preexisting Account. A “Preexisting Account” means a Financial Account maintained by a Reporting HKSAR Financial Institution as of June 30, 2014.
C. Account Balance Aggregation and Currency Translation Rules.
1. Aggregation of Individual Accounts. For purposes of determining the aggregate balance or value of Financial Accounts held by an individual, a Reporting HKSAR Financial Institution is required to aggregate all Financial Accounts maintained by the Reporting HKSAR Financial Institution, or by a Related Entity, but only to the extent that the Reporting HKSAR 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 of a jointly held Financial Account shall be attributed the entire balance or value of the jointly held Financial Account for purposes of applying the aggregation requirements described in this paragraph 1.
2. Aggregation of Entity Accounts. For purposes of determining the aggregate balance or value of Financial Accounts held by an Entity, a Reporting HKSAR Financial Institution is required to take into account all Financial Accounts that are maintained by the Reporting HKSAR Financial Institution, or by a Related Entity, but only to the extent that the Reporting HKSAR 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 of determining the aggregate balance or value of Financial Accounts held by a person to determine whether a Financial Account is a High Value Account, a Reporting HKSAR Financial Institution is also required, in the case of 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 of determining the balance or value of Financial Accounts denominated in a currency other than the U.S. dollar, a Reporting HKSAR 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 of the last day of the calendar year preceding the year in which the Reporting HKSAR Financial Institution is determining the balance or value.
D. Documentary Evidence. For purposes of this Annex I, acceptable documentary evidence includes any of the following:
1. A certificate of residence issued by an authorized government body (for example, a government or agency thereof, or a municipality) of the jurisdiction in which the payee claims to be a resident.
2. With respect to an individual, any valid identification issued by an authorized government body (for example, a government or agency thereof, or a municipality), that includes the individual’s name and is typically used for identification purposes.
3. With respect to an Entity, any official documentation issued by an authorized government body (for example, a government or agency thereof, or a municipality) that includes the name of the Entity and either the address of its principal office 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 antimoney laundering rules that have been approved by the IRS in connection with a QI agreement (as described in relevant U.S. Treasury Regulations), any of 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 of a Cash Value Insurance Contract. A Reporting HKSAR Financial Institution may presume that an individual beneficiary (other than the owner) of 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. Account unless the Reporting HKSAR Financial Institution has actual knowledge, or reason to know, that the beneficiary is a Specified U.S. Person. A Reporting HKSAR Financial Institution has reason to know that a beneficiary of a Cash Value Insurance Contract is a Specified U.S.
Person if the information collected by the Reporting HKSAR Financial Institution and associated with the beneficiary contains U.S. indicia as described in subparagraph B(1) of section II of this Annex I. If a Reporting HKSAR Financial Institution has actual knowledge, or reason to know, that the beneficiary is a Specified U.S. Person, the Reporting HKSAR Financial Institution must follow the procedures in subparagraph B(3) of section II of this Annex I.
F. Reliance on Third Parties. Regardless of whether an election is made under paragraph C of section I of this Annex I, Reporting HKSAR Financial Institutions may rely on due diligence procedures performed by third parties, to the extent provided in an FFI Agreement and 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 of Financial Accounts.
This Annex II may be modified by a mutual written decision entered into between the Competent Authorities of the Hong Kong Special Administrative Region of the People’s Republic of China (“HKSAR”) and the United States: (1) to include additional Entities and accounts 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 and accounts described in this Annex II as of the date of signature of the Agreement; or (2) to remove Entities and accounts 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 written decision, unless otherwise provided therein.
I. Exempt Beneficial Owners other than Funds. The following Entities shall be treated as Non-Reporting HKSAR Financial Institutions and as exempt beneficial owners for purposes of sections 1471 and 1472 of 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 of a type engaged in by a Specified Insurance Company, Custodial Institution, or Depository Institution.
A. Governmental Entity. The Government of the HKSAR, or any wholly owned agency or instrumentality of the Government of the HKSAR or any one or more of the foregoing (each, a “HKSAR Governmental Entity”). This category is comprised of the integral parts and controlled entities of the Government of the HKSAR.
1. An integral part of the Government of the HKSAR means any statutory body, organization, agency, bureau, fund, instrumentality, or any other person, however designated, that constitutes a governing authority of the HKSAR. The net earnings of the governing authority must be credited to its own account or to other accounts of the HKSAR, with no portion inuring to the benefit of any private person. An integral part does not include any individual who is an official or administrator acting in a private or personal capacity.
2. A controlled entity means an Entity that is separate in form from the Government of the HKSAR or that otherwise constitutes a separate juridical entity, provided that: a) The Entity is wholly owned and controlled by one or more HKSAR Governmental Entities directly or through one or more controlled entities; b) The Entity’s net earnings are credited to its own account or to the accounts of one or more HKSAR Governmental Entities, with no portion of its income inuring to the benefit of any private person; and c) The Entity’s assets vest in one or more HKSAR Governmental Entities upon dissolution.
3. Income does not inure to the benefit of private persons if such persons are the intended beneficiaries of a governmental program, and the program activities are performed for the general public with respect to the common welfare or relate to the administration of some phase of government. Notwithstanding the foregoing, however, income is considered to inure to the benefit of private persons if the income is derived from the use of 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) (1) that is comprised primarily of non-U.S. governments; (2) that has in effect a headquarters agreement applying to the HKSAR or has its seat in the HKSAR according to an international treaty applying to the HKSAR; and (3) the income of which does not inure to the benefit of private persons.
C. Central Bank. The Monetary Authority of the HKSAR.
II. Funds that Qualify as Exempt Beneficial Owners. The following Entities shall be treated as Non-Reporting HKSAR Financial Institutions and as exempt beneficial owners for purposes of sections 1471 and 1472 of the U.S. Internal Revenue Code.
A. Broad Participation Retirement Fund. A fund established or located in the HKSAR to provide retirement, disability, or death benefits, or any combination thereof, to beneficiaries that are current or former employees (or persons designated by such employees) of one or more HKSAR employers in consideration for services rendered, or self-employed persons who are residents of, and providing services in, the HKSAR, provided that:
1. The fund does not have a single beneficiary with a right to more than five percent of the fund’s assets;
2. The fund is subject to government regulation in the HKSAR as a pension or retirement scheme;
3. Participation by employers, employees, and self-employed persons is mandatory under the laws of the HKSAR and, in the case of employees, they must first be enrolled in a pension or retirement scheme by employers, or the pension scheme is established voluntarily by an HKSAR employer and is approved and registered by the Mandatory Provident Fund Schemes Authority (MPFA); and

4. The fund satisfies at least one of the following requirements:

a) The fund is generally exempt from tax in the HKSAR on investment income under the laws of the HKSAR due to its status as a retirement or pension plan;

b) The fund receives at least 50 percent of its total contributions (other than transfers of assets from other plans described in paragraphs A through E of this section or from retirement and pension accounts described in subparagraph A(1) of section V of this Annex II) from the participating/sponsoring employers;

c) Distributions or withdrawals from the fund are allowed only upon the occurrence of specified events related to retirement, disability, or death (except rollover distributions to other retirement funds described in paragraphs A through E of this section or retirement and pension accounts described in subparagraph A(1) of section V of this Annex II), or penalties apply to distributions or withdrawals made before such specified events; or d) Contributions (other than certain permitted make-up contributions) by employees or self-employed persons to the fund are limited by reference to earned income of the employees or self-employed persons or may not exceed $50,000 annually, applying the rules set forth in Annex I for account aggregation and currency translation.

B. Narrow Participation Retirement Fund. A fund established or located in the HKSAR to provide retirement, disability, or death benefits to beneficiaries that are current or former employees (or persons designated by such employees) of one or more HKSAR employers in consideration for services rendered, or self-employed persons who are residents of, and providing services in, the HKSAR, provided that:
1. The fund has fewer than 50 participants;
2. The fund is sponsored by one or more employers that are not Investment Entities or Passive NFFEs;
3. The employee and employer contributions, or the self-employed persons’ contributions to the fund (other than transfers of assets from retirement and pension accounts described in subparagraph A(1) of section V of this Annex II) are limited by reference to earned income and compensation of the employee or self-employed person, respectively;
4. Participants that are not residents of the HKSAR are not entitled to more than 20 percent of the fund’s assets;
5. The fund is subject to government regulation in the HKSAR as a pension or retirement scheme; and
6. Participation by employers, employees, and self-employed persons is mandatory under the laws of the HKSAR and, in the case of employees, they must first be enrolled by employers in a pension or retirement scheme, or the pension scheme is established voluntarily by an HKSAR employer and is approved and registered by the MPFA.
C. Pension Fund of an Exempt Beneficial Owner. A fund established or located in the HKSAR by an exempt beneficial owner to provide retirement, disability, or death benefits to beneficiaries or participants that are current or former employees of the exempt beneficial owner (or persons designated by such employees), or that are not current or former employees, if the benefits provided to such beneficiaries or participants are in consideration of personal services performed for the exempt beneficial owner.
D. Investment Entity Wholly Owned by Exempt Beneficial Owners. An Entity that is an HKSAR 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.
E. The Grant Schools Provident Fund and the Subsidized Schools Provident Fund.
The Grant Schools Provident Fund and the Subsidized Schools Provident Fund established for teachers under the Grant Schools Provident Fund Rules, Chapter 279C, and the Subsidized Schools Provident Fund Rules, Chapter 279D of the Laws of the HKSAR.
III. Small or Limited Scope Financial Institutions that Qualify as Deemed-Compliant FFIs.
The following Financial Institutions are Non-Reporting HKSAR Financial Institutions that shall be treated as registered deemed-compliant FFIs or certified deemed-compliant FFIs, as the case may be, for purposes of section 1471 of the U.S. Internal Revenue Code.
A. Registered Financial Institution with a Local Client Base. A Financial Institution satisfying the following requirements is a Non-Reporting HKSAR Financial Institution treated as a registered deemed-compliant FFI for purposes of section 1471 of the U.S.
Internal Revenue Code:
1. The Financial Institution must be licensed and regulated as a financial institution under the laws of the HKSAR;
2. The Financial Institution must have no fixed place of business outside of the HKSAR or the Mainland of China. The term “Mainland of China” does not include Taiwan, the HKSAR, or the Macao Special Administrative Region. For this purpose, a fixed place of 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 of the HKSAR. For this purpose, a Financial Institution shall not be considered to have solicited customers or Account Holders outside of the HKSAR merely because the Financial Institution (a) operates a website, provided that the website does not specifically indicate that the Financial Institution provides Financial Accounts or services to nonresidents, and does not otherwise target or solicit U.S. customers or Account Holders, or (b) advertises in print media or on a radio or television station that is distributed or aired primarily within the HKSAR but is also incidentally distributed or aired in other countries, provided that the advertisement does not specifically indicate that the Financial Institution provides Financial Accounts or services to nonresidents, and does not otherwise target or solicit U.S. customers or Account Holders;
4. The Financial Institution must be required under the laws of the HKSAR to identify resident Account Holders for purposes of satisfying the HKSAR’s AML due diligence requirements;
5. At least 98 percent of the Financial Accounts by value maintained by the Financial Institution as of the last day of the preceding calendar year must be held by residents (including residents that are Entities) of the HKSAR or the Mainland of China;
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 of the HKSAR (including a U.S. Person that was a resident of the HKSAR when the Financial Account was opened but subsequently ceases to be a resident of the HKSAR) or any Passive NFFE with Controlling Persons who are U.S. residents or U.S. citizens who are not residents of the HKSAR;
7. Such policies and procedures must provide that if any Financial Account held by a Specified U.S. Person who is not a resident of the HKSAR or by a Passive NFFE with Controlling Persons who are U.S. residents or U.S. citizens who are not residents of the HKSAR is identified, the Financial Institution must report such Financial Account as would be required if the Financial Institution were a Reporting HKSAR Financial Institution or close such Financial Account;
8. With respect to a Preexisting Account held by an individual who is not a resident of the HKSAR 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. 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 HKSAR Financial Institution or close such Financial Account;
9. Each Related Entity of the Financial Institution that is a Financial Institution must be incorporated or organized in the HKSAR or the Mainland of China and, with the exception of any Related Entity that is a retirement fund described in paragraphs A through D of section II of this Annex II, satisfy the requirements set forth in this paragraph A;
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 of the HKSAR; and
11. The Financial Institution must satisfy the requirements set forth in paragraph C of section VI of this Annex II.
B. Local Bank. The Hong Kong Police Credit Union or a Financial Institution satisfying the following requirements is a Non-Reporting HKSAR Financial Institution treated as a certified deemed-compliant FFI for purposes of section 1471 of the U.S. Internal Revenue Code:
1. The Financial Institution operates solely as (and is licensed and regulated under the laws of the HKSAR as) a bank or a credit union or similar cooperative credit organization that is operated without profit;
2. The Financial Institution’s business consists primarily of 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 with a less than five percent interest in such credit union or cooperative credit organization;
3. The Financial Institution satisfies the requirements set forth in subparagraphs A(2) and A(3) of this section, provided that, in addition to the limitations on the website described in subparagraph A(3) of this section, the website does not permit the opening of a Financial Account;
4. The Financial Institution does not have more than $175 million in assets on its balance sheet, and the Financial Institution and any Related Entities, taken together, do not have more than $500 million in total assets on their consolidated or combined balance sheets; and
5. Any Related Entity must be incorporated or organized in the HKSAR, and any Related Entity that is a Financial Institution, with the exception of any Related Entity that is a retirement fund described in paragraphs A through D of section II of this Annex II or a Financial Institution with only low-value accounts described in paragraph C of this section, must satisfy the requirements set forth in this paragraph B.
C. Financial Institution with Only Low-Value Accounts. An HKSAR Financial Institution satisfying the following requirements is a Non-Reporting HKSAR Financial Institution treated as a certified deemed-compliant FFI for purposes of section 1471 of the U.S. Internal Revenue Code:
1. The Financial Institution is not an Investment Entity;
2. No Financial Account maintained by the Financial Institution or any Related Entity has a balance or value in excess of $50,000, applying the rules set forth in Annex I for account aggregation and currency translation; and
3. The Financial Institution does not have more than $50 million in assets on its balance sheet, and the Financial Institution and any Related Entities, taken together, do not have more than $50 million in total assets on their consolidated or combined balance sheets.
D. Registered Qualified Credit Card Issuer. An HKSAR Financial Institution satisfying the following requirements is a Non-Reporting HKSAR Financial Institution treated as a registered deemed-compliant FFI for purposes of section 1471 of the U.S. Internal Revenue Code:
1. The Financial Institution is a Financial Institution solely because it is an issuer of credit cards that accepts deposits only when a customer makes a payment in excess of a balance due with respect to the card and the overpayment is not immediately returned to the customer;
2. Beginning on or before July 1, 2014, the Financial Institution implements policies and procedures to either prevent a customer deposit in excess of $50,000, or to ensure that any customer deposit in excess of $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 of disputed charges but does include credit balances resulting from merchandise returns; and
3. The Financial Institution must satisfy the requirements set forth in paragraph C of section VI of this Annex II.
E. Qualifying Institutions. An HKSAR Financial Institution that maintains financial accounts only for HKSAR Financial Institutions other than Nonparticipating FFIs is a Non-Reporting HKSAR Financial Institution treated as a certified deemed-compliant FFI for purposes of section 1471 of the U.S. Internal Revenue Code.
IV. Investment Entities that Qualify as Deemed-Compliant FFIs and Other Special Rules.
The Financial Institutions described in paragraphs A through E of this section are Non-Reporting HKSAR Financial Institutions that shall be treated as registered deemedcompliant FFIs or certified deemed-compliant FFIs, as the case may be, for purposes of section 1471 of the U.S. Internal Revenue Code. In addition, paragraph F of this section provides special rules applicable to an Investment Entity.
A. Trustee-Documented Trust. A trust established under the laws of the HKSAR to the extent that the trustee of the trust is a Reporting U.S. Financial Institution, Reporting Model 1 FFI, or Participating FFI and reports all information required to be reported pursuant to the Agreement with respect to all U.S. Accounts of the trust. Such a trust is a Non-Reporting HKSAR Financial Institution treated as a certified deemed-compliant FFI for purposes of section 1471 of the U.S. Internal Revenue Code.
B. Registered Sponsored Investment Entity and Controlled Foreign Corporation. A Financial Institution described in subparagraph B(1) or B(2) of this section having a sponsoring entity that complies with the requirements of subparagraph B(3) of this section is a Non-Reporting HKSAR Financial Institution treated as a registered deemedcompliant FFI for purposes of section 1471 of the U.S. Internal Revenue Code.
1. A Financial Institution is a sponsored investment entity if (a) it is an Investment Entity established in the HKSAR 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 HKSAR 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 the requirements of an FFI Agreement;

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.

b) The sponsoring entity has registered as a sponsoring entity with the IRS;

c) Prior to December 31, 2015, the sponsoring entity has registered the Financial Institution with the IRS pursuant to the registration requirements set forth in paragraph C of section VI of this Annex II;

d) The sponsoring entity agrees to perform, on behalf of the Financial Institution, all due diligence, withholding, reporting, and other requirements (including the requirements set forth in paragraph C of section VI of this Annex II) that the Financial Institution would have been required to perform if it were a Reporting HKSAR Financial Institution;

e) The sponsoring entity identifies the Financial Institution and includes the Financial Institution’s Global Intermediary Identification Number in all reporting completed on the Financial Institution’s behalf; and f) The sponsoring entity has not had its status as a sponsor revoked. The IRS may revoke a sponsoring entity’s status as a sponsor with respect to all sponsored Financial Institutions if there is a material failure by the sponsoring entity to comply with its obligations described above with respect to any sponsored Financial Institution.

C. Sponsored, Closely Held Investment Vehicle. An HKSAR Financial Institution satisfying the following requirements is a Non-Reporting HKSAR Financial Institution treated as a certified deemed-compliant FFI for purposes of section 1471 of the U.S.
Internal Revenue Code:
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 FFI, or Participating FFI, 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 HKSAR 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 C); and

5. The sponsoring entity complies with the following requirements:

a) The sponsoring entity has registered as a sponsoring entity with the IRS;

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 HKSAR 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. The IRS may revoke a sponsoring entity’s status as a sponsor with respect to all sponsored Financial Institutions if there is a material failure by the sponsoring entity to comply with its obligations described above with respect to any sponsored Financial Institution.

D. Collective Investment Vehicle. An Investment Entity established in the HKSAR that is regulated as a collective investment vehicle, provided that 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, and the Investment Entity satisfies the requirements set forth in paragraph C of section VI of this Annex II. Such an Investment Entity is a Non-Reporting HKSAR Financial Institution treated as a registered deemed-compliant FFI for purposes of section 1471 of the U.S. Internal Revenue Code.
E. HKSAR Investment Advisors and Investment Managers. An Investment Entity established in the HKSAR that is a Financial Institution solely because it (1) renders investment advice to, and acts on behalf of, or (2) manages portfolios and acts on behalf of, a customer for the purposes of investing, managing, or administering funds deposited in the name of the customer with a Financial Institution other than a Nonparticipating FFI is a Non-Reporting HKSAR Financial Institution treated as a certified deemedcompliant FFI for purposes of section 1471 of the U.S. Internal Revenue Code.
F. 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 of this section, 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.
2. With respect to interests in: a) An Investment Entity established in a Partner Jurisdiction that is regulated as a collective investment vehicle, all of the interests 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 an HKSAR 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 the HKSAR that is not described in paragraph D or subparagraph F(2) of this section, consistent with paragraph 4 of Article 4 of the Agreement, the reporting obligations of all other Investment Entities with respect to such interests shall be deemed fulfilled if the information required to be reported by 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 the HKSAR that is regulated as a collective investment vehicle shall not fail to qualify under paragraph D or subparagraph F(2) of this section, or otherwise as a deemed-compliant FFI, solely because the collective investment vehicle has issued physical shares in bearer form, provided that:

a) The collective investment vehicle has not issued, and does not issue, any physical shares in bearer form after December 31, 2012;

b) The collective investment vehicle retires all such shares upon surrender;

c) The collective investment vehicle (or a Reporting HKSAR Financial Institution) performs the due diligence procedures set forth in Annex I and reports any information required to be reported 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.

V. Accounts Excluded from Financial Accounts. The following accounts are excluded from the definition of Financial Accounts and therefore shall not be treated as U.S. Accounts.
A. Certain Savings Accounts.

1. Retirement and Pension Account. A retirement or pension account maintained in the HKSAR that satisfies the following requirements under the laws of the HKSAR.

a) The account is subject to regulation as a personal retirement account or is part of a registered or regulated retirement or pension plan for the provision of 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 of the HKSAR are deductible from the gross income of the account holder or taxed at a reduced rate);

c) Annual information reporting is required to the tax authorities in the HKSAR with respect to the account;

d) Withdrawals are conditioned on reaching a specified retirement age, disability, or death, or penalties apply to withdrawals made before such specified events; and e) Either (i) annual contributions are limited to $50,000 or less, or (ii) there is a maximum lifetime contribution limit to the account of $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 the HKSAR (other than an insurance or Annuity Contract) that satisfies the following requirements under the laws of the HKSAR.

a) The account is subject to regulation as a savings vehicle for purposes other than for retirement;

b) The account is tax-favored (i.e., contributions to the account that would otherwise be subject to tax under the laws of the HKSAR are deductible from the gross income of the account holder or taxed at a reduced rate);

c) Withdrawals are conditioned on meeting specific criteria related to the purpose of the savings account (for example, the provision of 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 the HKSAR with a coverage period that will end before the insured individual attains age 90, provided that the contract satisfies the following requirements:
1. Periodic premiums, which do not decrease over time, are payable at least annually during the period the contract is in existence or until the insured attains age 90, whichever is shorter;
2. The contract has no contract value that any person can access (by withdrawal, loan, or otherwise) without terminating the contract;
3. The amount (other than a death benefit) payable upon cancellation or termination of the contract cannot exceed the aggregate premiums paid for the contract, less the sum of mortality, morbidity, and expense charges (whether or not actually imposed) for the period or periods of the contract’s existence and any amounts paid prior to the cancellation or termination of the contract; and
4. The contract is not held by a transferee for value.
C. Account Held By an Estate. An account maintained in the HKSAR that is held solely by an estate if the documentation for such account includes a copy of the deceased’s will or death certificate.
D. Escrow Accounts. An account maintained in the HKSAR established in connection with any of the following:
1. A court order or judgment.

2. A sale, exchange, or lease of 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 of the property;

b) The account is established and used solely to secure the obligation of 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 of the account, including the income earned thereon, will be paid or otherwise distributed for the benefit of 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 of a financial asset; and e) The account is not associated with a credit card account.

3. An obligation of a Financial Institution servicing a loan secured by real property to set aside a portion of a payment solely to facilitate the payment of taxes or insurance related to the real property at a later time.
4. An obligation of a Financial Institution solely to facilitate the payment of taxes at a later time.
E. Certain Employee Incentive Share Schemes. The following categories of accounts established in the HKSAR and maintained by a HKSAR Financial Institution:
1. Share Option Scheme
2. Share Award Scheme
3. Employee Share Purchase Scheme
4. Share Appreciation Rights Scheme
F. Partner Jurisdiction Accounts. An account maintained in the HKSAR and 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 is subject to the same requirements and oversight under the laws of 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 and Other Special Rules. The following additional definitions and special rules 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 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.
B. Participating FFI. 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 where relevant, an FFI Agreement as defined in Article 1 of the Agreement as well as 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.
C. Registration Requirements for a Financial Institution that Qualifies as a Registered Deemed-Compliant FFI. A Financial Institution that qualifies as a registered deemedcompliant FFI must satisfy the following requirements:
1. Register with the IRS pursuant to procedures prescribed by the IRS and agree to comply with the terms of its registered deemed-compliant status;
2. Have its responsible officer certify every three years to the IRS, either individually or collectively for such Financial Institution and its Related Entities, that all of the requirements for the deemed-compliant category claimed by the Financial Institution have been satisfied since July 1, 2014;
3. Maintain in its records the confirmation from the IRS of the Financial Institution’s registration as a deemed-compliant FFI and the Financial Institution’s Global Intermediary Identification Number or such other information as the IRS specifies in forms or other guidance; and
4. Agree to notify the IRS if there is a change in circumstances that would make the Financial Institution ineligible for the deemed-compliant status for which it has registered, and to do so with six months of the change in circumstances unless the Financial Institution is able to resume its eligibility for its registered deemedcompliant status within the six-month notification period.