Administration of Estates Act, 1965
R 385
Tax Administration Act, 2011 (Act No. 28 of 2011)RegulationsRegulations for purposes of paragraph (a) of the Definition of "International Tax Standard)" in Section (1) of the Tax Administration Act, 2011 (Act No. 28 of 2011), promulgated under section 257 of the Act, Specifying the Changes to the OECD Standard for Automatic Exchange of Financial Account Information in Tax MattersSection IX : Complementary Reporting and Due Diligence Rules for Financial Account Information |
| A. | Change in circumstances |
| (1) | A "change in circumstances" includes any change that results in the addition of information relevant to a person's status or otherwise conflicts with such person's status. In addition, a change in circumstances includes any change or addition of information to the Account Holder's account (including the addition, substitution, or other change of an Account Holder) or any change or addition of information to any account associated with such account (applying the account aggregation rules described in subparagraphs C(1) through (3) of Section VII) if such change or addition of information affects the status of the Account Holder. |
| (2) | If a Reporting Financial Institution has relied on the residence address test described in subparagraph B(1) of Section III and there is a change in circumstances that causes the Reporting Financial Institution to know or have reason to know that the original Documentary Evidence (or other equivalent documentation) is incorrect or unreliable, the Reporting Financial Institution must, by the later of the last day of the relevant Reporting Period, or 90 calendar days following the notice or discovery of such change in circumstances, obtain a self-certification and new Documentary Evidence to establish the residence(s) for tax purposes of the Account Holder. If the Reporting Financial Institution cannot obtain the self-certification and new Documentary Evidence by such date, the Reporting Financial Institution must apply the electronic record search procedure described in subparagraphs B(2) through (6) of Section III. |
| B. | Self-certification for New Entity Accounts |
With respect to New Entity Accounts, for the purposes of determining whether a Controlling Person of a Passive NFE is a Reportable Person, a Reporting Financial Institution may only rely on a self-certification from either the Account Holder or the Controlling Person.
| C. | Residence of a Financial Institution |
| (1) | A Financial Institution is "resident" in a Participating Jurisdiction if it is subject to the jurisdiction of such Participating Jurisdiction in that the Participating Jurisdiction is able to enforce reporting by the Financial Institution. In general, where a Financial Institution is resident for tax purposes in a Participating Jurisdiction, it is subject to the jurisdiction of such Participating Jurisdiction and it is, thus, a Participating Jurisdiction Financial Institution. |
| (2) | In the case of a trust that is a Financial Institution (irrespective of whether it is resident for tax purposes in a Participating Jurisdiction), the trust is considered to be subject to the jurisdiction of a Participating Jurisdiction if one or more of its trustees are resident in such jurisdiction, except if the trust reports all the information required to be reported under to the Common Reporting Standard with respect to Reportable Accounts maintained by the trust, to another Participating Jurisdiction because it is resident for tax purposes in such other jurisdiction. |
| (3) | Where a Financial Institution (other than a trust) does not have a residence for tax purposes (for example because it is treated as fiscally transparent, or it is located in a jurisdiction that does not have an income tax), it is considered to be subject to the jurisdiction of a Participating Jurisdiction and it is, thus, a Participating Jurisdiction Financial Institution if: |
| (a) | it is incorporated under the laws of the Participating Jurisdiction; |
| (b) | it has its place of management (including effective management) in the Participating Jurisdiction; or |
| (c) | it is subject to financial supervision in the Participating Jurisdiction. |
| (4) | Where a Financial Institution (other than a trust) is resident in two or more Participating Jurisdictions, such Financial Institution will be subject to the reporting and due diligence obligations of the Participating Jurisdiction in which it maintains the Financial Account(s). |
| D. | Account maintained |
In general, an account would be considered to be maintained by a Financial Institution as follows:
| (1) | In the case of a Custodial Account, by the Financial Institution that holds custody over the assets in the account (including a Financial Institution that holds assets in street name for an Account Holder in such institution); |
| (2) | In the case of a Depository Account, by the Financial Institution that is obligated to make payments with respect to the account (excluding an agent of a Financial Institution regardless of whether such agent is a Financial Institution); |
| (3) | In the case of any equity or debt interest in a Financial Institution that constitutes a Financial Account, by such Financial Institution; |
| (4) | In the case of a Cash Value Insurance Contract or an Annuity Contract, by the Financial Institution that is obligated to make payments with respect to the contract. |
| E. | Residence of certain Entities |
An Entity such as a trust, partnership, limited liability partnership or similar legal arrangement that has no residence for tax purposes, according to subparagraph D(3) of Section VIII, shall be treated as resident in the jurisdiction in which its place of effective management is situated. For these purposes, a legal person or a legal arrangement is considered "similar" to a partnership and a limited liability partnership where it is not treated as a taxable unit in a Participating Jurisdiction under the tax laws of such jurisdiction. However, in order to avoid duplicate reporting, given the wide scope of the term "Controlling Persons" in the case of trusts, a trust that is a Passive NFE may not be considered a similar legal arrangement.
| F. | Address of Entity's principal office |
| (1) | One of the requirements described in subparagraph E(6)(c) of Section VIII is that, with respect to an Entity, the official documentation includes either the address of the Entity's principal office in a jurisdiction in which it claims to be a resident or a jurisdiction in which the Entity was incorporated or organised. The address of the Entity's principal office is generally the place in which its place of effective management is situated. |
| (2) | The address of a Financial Institution with which the Entity maintains an account, a post office box, or an address used solely for mailing purposes is not the address of the Entity's principal office unless such address is the only address used by the Entity and appears as the Entity's registered address in the Entity's organisational documents. |
| (3) | An address that is provided subject to instructions to hold all mail to that address is not the address of the Entity's principal office. |
| G. | Documentary Evidence of Pre-existing Entity Account |
With respect to a Pre-existing Entity Account, a Reporting Financial Institution may use as Documentary Evidence any classification in the Reporting Financial Institution's records with respect to the Account Holder that was—
| (1) | determined based on a standardised industry coding system; |
| (2) | recorded by the Reporting Financial Institution consistent with its normal business practices for purposes of AML/KYC Procedures or another regulatory purposes (other than for tax purposes); and |
| (3) | implemented by the Reporting Financial Institution prior to the date used to classify the Financial Account as a Pre-existing Account, |
provided that the Reporting Financial Institution does not know or does not have reason to know that such classification is incorrect or unreliable. The term "standardised industry coding system" means a coding system used to classify establishments by business type for purposes other than tax purposes.
