Any term or expression contained in these Regulations to which a meaning has been assigned in the Tax Administration Act, the MCAA or any other relevant multilateral or bilateral agreement or arrangement, has the meaning so assigned, unless the term or expression is defined in these Regulations or the context indicates otherwise, and the following terms have the meanings set forth below.
| A. |
Reporting Financial Institution |
| (1) |
The term "Reporting Financial Institution" means any South African Financial Institution that is not a Non-Reporting Financial Institution. The term "South African Financial Institution" means: |
| (i) |
any Financial Institution that is resident in South Africa, but excludes any branch of that Financial Institution that is located outside of South Africa; and |
| (ii) |
any branch of a Financial Institution that is not resident in South Africa, if that branch is located in South Africa. |
| (2) |
The term "Participating Jurisdiction Financial Institution" means |
| (i) |
any Financial Institution that is resident in a Participating Jurisdiction, but excludes any branch of that Financial Institution that is located outside such Participating Jurisdiction, and |
| (ii) |
any branch of a Financial Institution that is not resident in a Participating Jurisdiction, if that branch is located in such Participating Jurisdiction. |
| (3) |
The term "Financial Institution" means a Custodial Institution, a Depository Institution, an Investment Entity, or a Specified Insurance Company. |
| (4) |
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 per cent of the Entity’s gross income during the shorter of: |
| (i) |
the three-year period that ends on the last day of February prior to the Reporting Period in which the determination is being made; or |
| (ii) |
the period during which the Entity has been in existence. |
| (5) |
The term "Depository Institution" means any Entity that accepts deposits in the ordinary course of a banking or similar business. |
| (6) |
The term "Investment Entity" means any Entity: |
| (a) |
that primarily conducts as a business one or more of the following activities or operations for or on behalf of a customer: |
| (i) |
trading in money market instruments (such as cheques, bills, certificates of deposit, derivatives); foreign exchange; exchange, interest rate and index instruments; transferable securities; or commodity futures trading; |
| (ii) |
individual and collective portfolio management; or |
| (iii) |
otherwise investing, administering, or managing Financial Assets or money on behalf of other persons; or |
| (b) |
the gross income of which is primarily attributable to investing, reinvesting, or trading in Financial Assets, if the Entity is managed by another Entity that is a Depository Institution, a Custodial Institution, a Specified Insurance Company, or an Investment Entity described in subparagraph A(6)(a). |
An Entity is treated as primarily conducting as a business one or more of the activities described in subparagraph A(6)(a), or an Entity’s gross income is primarily attributable to investing, reinvesting, or trading in Financial Assets for purposes of subparagraph A(6)(b), if the Entity’s gross income attributable to the relevant activities equals or exceeds 50 per cent of the Entity’s gross income during the shorter of:
| (i) |
the three-year period ending on the last day of February of the Reporting Period preceding the period in which the determination is made; or |
| (ii) |
the Reporting Period during which the Entity has been in existence. The term "Investment Entity" does not include an Entity that is an Active NFE because that Entity meets any of the criteria in subparagraphs D(9)(d) through (g). |
This paragraph 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.
| (7) |
The term "Financial Asset" includes a security (for example, a share of stock in a corporation; partnership or beneficial ownership interest in a widely held or publicly traded partnership or trust; note, bond, debenture, or other evidence of indebtedness), partnership interest, commodity, swap (for example, interest rate swaps, currency swaps, basis swaps, interest rate caps, interest rate floors, commodity swaps, equity swaps, equity index swaps, and similar agreements), Insurance Contract or Annuity Contract, or any interest (including a futures or forward contract or option) in a security, partnership interest, commodity, swap, Insurance Contract, or Annuity Contract. The term "Financial Asset" does not include a non-debt, direct interest in real property. |
| (8) |
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. |
| B. |
Non-Reporting Financial Institution |
| (1) |
The term "Non-Reporting Financial Institution" means any Financial Institution that is: |
| (a) |
a Governmental Entity, International Organisation or Central Bank, 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; |
| (b) |
a Broad Participation Retirement Fund; a Narrow Participation Retirement Fund; a Pension Fund of a Governmental Entity, International Organisation or Central Bank; or a Qualified Credit Card Issuer; |
| (c) |
any other Entity that presents a low risk of being used to evade tax, has substantially similar characteristics to any of the Entities described in subparagraphs B(1)(a) and (b), and is included in the list of Non-Reporting Financial Institutions referred to in Annex I to these Regulations as a Non-Reporting Financial Institution, provided that the status of such Entity as a Non-Reporting Financial Institution does not frustrate the purposes of the Common Reporting Standard; |
| (d) |
an Exempt Collective Investment Vehicle; or |
| (e) |
a trust established under the laws of a Reportable Jurisdiction to the extent that the trustee of the trust is a Reporting Financial Institution and reports all information required to be reported pursuant to Section I with respect to all Reportable Accounts of the trust. |
| (2) |
The term "Governmental Entity" means the government of a jurisdiction, any political subdivision of a jurisdiction (which, for the avoidance of doubt, includes a state, province, county, or municipality), or any wholly owned agency or instrumentality of a jurisdiction or of any one or more of the foregoing (each, a "Governmental Entity"). This category is comprised of the integral parts, controlled entities, and political subdivisions of a jurisdiction. |
| (a) |
An "integral part" of a jurisdiction means any person, organisation, agency, bureau, fund, instrumentality, or other body, however designated, that constitutes a governing authority of a jurisdiction. The net earnings of the governing authority must be credited to its own account or to other accounts of the jurisdiction, with no portion inuring to the benefit of any private person. An integral part does not include any individual who is a sovereign, official, or administrator acting in a private or personal capacity. |
| (b) |
A "controlled entity" means an Entity that is separate in form from the jurisdiction or that otherwise constitutes a separate juridical entity, provided that: |
| (i) |
The Entity is wholly owned and controlled by one or more Governmental Entities directly or through one or more controlled entities; |
| (ii) |
The Entity’s net earnings are credited to its own account or to the accounts of one or more Governmental Entities, with no portion of its income inuring to the benefit of any private person; and |
| (iii) |
The Entity’s assets vest in one or more Governmental Entities upon dissolution. |
| (c) |
Income does not inure to the benefit of private persons if such persons are the intended beneficiaries of a governmental programme, and the programme 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. |
| (3) |
The term "International Organisation" means any international organisation or wholly owned agency or instrumentality thereof. This category includes any intergovernmental organisation (including a supranational organisation) |
| (i) |
that is comprised primarily of governments; |
| (ii) |
that has in effect a headquarters or substantially similar agreement with the jurisdiction; and |
| (iii) |
the income of which does not inure to the benefit of private persons. |
| (4) |
The term "Central Bank" means a bank that is by law or government sanction the principal authority, other than the government of the jurisdiction itself, issuing instruments intended to circulate as currency. Such a bank may include an instrumentality that is separate from the government of the jurisdiction, whether or not owned in whole or in part by the jurisdiction. |
| (5) |
The term "Broad Participation Retirement Fund" means a fund established to provide retirement, disability, or death benefits, or any combination thereof, to beneficiaries who are current or former employees (or persons designated by such employees) of one or more employers in consideration for services rendered, provided that the fund: |
| (a) |
Does not have a single beneficiary with a right to more than five per cent of the fund’s assets; |
| (b) |
Is subject to government regulation and provides information reporting to the tax authorities; and |
| (c) |
Satisfies at least one of the following requirements: |
| (i) |
The fund is generally exempt from tax on investment income, or taxation of such income is deferred or taxed at a reduced rate, due to its status as a retirement or pension plan; |
| (ii) |
The fund receives at least 50 per cent of its total contributions (other than transfers of assets from other plans described in subparagraphs B(5) through (7) or from retirement and pension accounts described in subparagraph C(17)(a)) from the sponsoring employers; |
| (iii) |
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 subparagraphs B(5) through (7) or retirement and pension accounts described in subparagraph C(17)(a)), or penalties apply to distributions or withdrawals made before such specified events; or |
| (iv) |
Contributions (other than certain permitted make-up contributions) by employees to the fund are limited by reference to earned income of the employee or may not exceed $50,000 annually, applying the rules set forth in paragraph C of Section VII for account aggregation and currency translation. |
| (6) |
The term "Narrow Participation Retirement Fund" means a fund established to provide retirement, disability, or death benefits to beneficiaries who are current or former employees (or persons designated by such employees) of one or more employers in consideration for services rendered, provided that: |
| (a) |
The fund has fewer than 50 participants; |
| (b) |
The fund is sponsored by one or more employers that are not Investment Entities or Passive NFEs; |
| (c) |
The employee and employer contributions to the fund (other than transfers of assets from retirement and pension accounts described in subparagraph C(17)(a)) are limited by reference to earned income and compensation of the employee, respectively; |
| (d) |
Participants that are not residents of the jurisdiction in which the fund is established are not entitled to more than 20 per cent of the fund’s assets; and |
| (e) |
The fund is subject to government regulation and provides information reporting to the tax authorities. |
| (7) |
The term "Pension Fund of a Governmental Entity, International Organisation or Central Bank" means a fund established by a Governmental Entity, International Organisation or Central Bank to provide retirement, disability, or death benefits to beneficiaries or participants that are current or former employees (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 Governmental Entity, International Organisation or Central Bank. |
| (8) |
The term "Qualified Credit Card Issuer" means a Financial Institution satisfying the following requirements: |
| (a) |
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; and |
| (b) |
Beginning on or before 1 May 2016, the Financial Institution implements policies and procedures either to prevent a customer from making an overpayment in excess of $50,000, or to ensure that any customer overpayment in excess of $50,000 is refunded to the customer within 60 days, in each case applying the rules set forth in paragraph C of Section VII for account aggregation and currency translation. For this purpose, a customer overpayment does not refer to credit balances to the extent of disputed charges but does include credit balances resulting from merchandise returns. |
| (9) |
The term "Exempt Collective Investment Vehicle" means an Investment Entity that is regulated as a collective investment vehicle, provided that all of the interests in the collective investment vehicle are held by or through one or more Entities described in subparagraph B(1), or individuals or Entities that are not Reportable Persons, except a Passive NFE with Controlling Persons who are Reportable Persons. |
| (1) |
The term "Financial Account" means an account maintained by a Financial Institution, and includes a Depository Account, a Custodial Account and— |
| (a) |
in the case of an Investment Entity, any equity or debt interest in the Financial Institution. Notwithstanding the foregoing, the term "Financial Account" does not include any equity or debt interest in an Entity that is an Investment Entity solely because it (i) renders investment advice to, and acts on behalf of, or (ii) manages portfolios for, and acts on behalf of, a customer for the purpose of investing, managing, or administering Financial Assets deposited in the name of the customer with a Financial Institution other than such Entity; |
| (b) |
in the case of a Financial Institution not described in subparagraph C(1)(a), any equity or debt interest in the Financial Institution, if the class of interests was established with the purpose of avoiding reporting in accordance with Section I; and |
| (c) |
any Cash Value Insurance Contract and any Annuity Contract issued or maintained by a Financial Institution, other than a non-investment linked, non-transferable immediate life annuity that is issued to an individual and monetises a pension or disability benefit provided under an account that is an Excluded Account. |
The term "Financial Account" does not include any account that is an Excluded Account.
| (2) |
The term "Depository Account" includes any commercial, checking, savings, time, or thrift account, or an account that is evidenced by a certificate of deposit, thrift certificate, investment certificate, certificate of indebtedness, or other similar instrument maintained by a Financial Institution in the ordinary course of a banking or similar business. A Depository Account also includes an amount held by an insurance company pursuant to a guaranteed investment contract or similar agreement to pay or credit interest thereon. |
| (3) |
The term "Custodial Account" means an account (other than an Insurance Contract or Annuity Contract) that holds one or more Financial Assets for the benefit of another person. |
| (4) |
The term "Equity Interest" means, in the case of a partnership that is a Financial Institution, either a capital or profits interest in the partnership. In the case of a trust that is a Financial Institution, an Equity Interest is considered to be held by any person treated as a settlor or beneficiary of all or a portion of the trust, or any other natural person exercising ultimate effective control over the trust. A Reportable Person will be treated as being a beneficiary of a trust if such Reportable Person has the right to receive directly or indirectly (for example, through a nominee) a mandatory distribution or may receive, directly or indirectly, a discretionary distribution from the trust. |
| (5) |
The term "Insurance Contract" means a contract (other than an Annuity Contract) under which the issuer agrees to pay an amount upon the occurrence of a specified contingency involving mortality, morbidity, accident, liability, or property risk. |
| (6) |
The term "Annuity Contract" means a contract under which the issuer agrees to make payments for a period of time determined in whole or in part by reference to the life expectancy of one or more individuals. The term also includes a contract that is considered to be an Annuity Contract in accordance with the law, regulation, or practice of the jurisdiction in which the contract was issued, and under which the issuer agrees to make payments for a term of years. The term "Group Annuity Contract" means an Annuity Contract under which the obligees are individuals who are affiliated through an employer, trade association, labour union, or other association or group. |
| (7) |
The term "Cash Value Insurance Contract" means an Insurance Contract (other than an indemnity reinsurance contract between two insurance companies) that has a Cash Value. The term "Group Cash Value Insurance Contract" means a Cash Value Insurance Contract that— |
| (i) |
provides coverage on individuals who are affiliated through an employer, trade association, labour union, or other association or group; and |
| (ii) |
charges a premium for each member of the group (or member of a class within the group) that is determined without regard to the individual health characteristics other than age, gender, and smoking habits of the member (or class of members) of the group. |
| (8) |
The term "Cash Value" means the greater of— |
| (i) |
the amount that the policyholder is entitled to receive upon surrender or termination of the contract (determined without reduction for any surrender charge or policy loan); and |
| (ii) |
the amount the policyholder can borrow under or with regard to the contract. |
Notwithstanding the foregoing, the term "Cash Value" does not include an amount payable under an Insurance Contract:
| (a) |
Solely by reason of the death of an individual insured under a life insurance contract; |
| (b) |
As a personal injury or sickness benefit or other benefit providing indemnification of an economic loss incurred upon the occurrence of the event insured against; |
| (c) |
Subject to the application of subparagraph C(8)(a), as a refund of a previously paid premium (less cost of insurance charges whether or not actually imposed) under an Insurance Contract (other than an investment-linked life insurance contract or an Annuity Contract) due to cancellation or termination of the contract, decrease in risk exposure during the effective period of the contract, or arising from the correction of a posting or similar error with regard to the premium for the contract; |
| (d) |
As a policyholder dividend (other than a termination dividend) provided that the dividend relates to an Insurance Contract under which the only benefits payable are described in subparagraph C(8)(b); or |
| (e) |
As a return of an advance premium or premium deposit for an Insurance Contract for which the premium is payable at least annually if the amount of the advance premium or premium deposit does not exceed the next annual premium that will be payable under the contract. |
| (9) |
The term "Pre-existing Account" means a Financial Account maintained by a Reporting Financial Institution as of 29 February 2016. |
| (10) |
The term "New Account" means a Financial Account maintained by a Reporting Financial Institution opened on or after 1 March 2016. |
| (11) |
The term "Pre-existing Individual Account" means a Pre-existing Account held by one or more individuals. |
| (12) |
The term "New Individual Account" means a New Account held by one or more individuals. |
| (13) |
The term "Pre-existing Entity Account" means a Pre-existing Account held by one or more Entities. |
| (14) |
The term "Lower Value Account" means a Pre-existing Individual Account with an aggregate balance or value as of 29 February 2016 that does not exceed $1,000,000. |
| (15) |
The term "High Value Account" means a Pre-existing Individual Account with an aggregate balance or value that exceeds $1,000,000 as of 29 February 2016 or the last day of February of any subsequent Reporting Period. |
| (16) |
The term "New Entity Account" means a New Account held by one or more Entities. |
| (17) |
The term "Excluded Account" means any of the following accounts: |
| (a) |
A retirement or pension account that satisfies the following requirements: |
| (i) |
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); |
| (ii) |
The account is tax-favoured (i.e., contributions to the account that would otherwise be subject to tax are deductible or excluded from the gross income of the account holder or taxed at a reduced rate, or taxation of investment income from the account is deferred or taxed at a reduced rate); |
| (iii) |
Information reporting is required to the tax authorities with respect to the account; |
| (iv) |
Withdrawals are conditioned on reaching a specified retirement age, disability, or death, or penalties apply to withdrawals made before such specified events; and |
| (v) |
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 paragraph C of Section VII for account aggregation and currency translation. |
A Financial Account that otherwise satisfies the requirements of subparagraph C(17)(a)(v) will not fail to satisfy such requirements solely because such Financial Account may receive assets or funds transferred from one or more Financial Accounts that meet the requirements of subparagraph C(17)(a) or (b) or from one or more retirement or pension funds that meet the requirements of any of subparagraphs B(5) through (7).
| (b) |
An account that satisfies the following requirements: |
| (i) |
The account is subject to regulation as an investment vehicle for purposes other than for retirement and is regularly traded on an established securities market, or the account is subject to regulation as a savings vehicle for purposes other than for retirement; |
| (ii) |
The account is tax-favoured (i.e. contributions to the account that would otherwise be subject to tax are deductible or excluded from the gross income of the account holder or taxed at a reduced rate, or taxation of investment income from the account is deferred or taxed at a reduced rate); |
| (iii) |
Withdrawals are conditioned on meeting specific criteria related to the purpose of the investment or savings account (for example, the provision of educational or medical benefits), or penalties apply to withdrawals made before such criteria are met; and |
| (iv) |
Annual contributions are limited to $50,000 or less, applying the rules set forth in paragraph C of Section VII for account aggregation and currency translation. |
A Financial Account that otherwise satisfies the requirements of subparagraph C(17)(b)(iv) will not fail to satisfy such requirements solely because such Financial Account may receive assets or funds transferred from one or more Financial Accounts that meet the requirements of subparagraph C(17)(a) or (b) or from one or more retirement or pension funds that meet the requirements of any of subparagraphs B(5) through (7).
| (c) |
A life insurance contract with a coverage period that will end before the insured individual attains age 90, provided that the contract satisfies the following requirements: |
| (i) |
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; |
| (ii) |
The contract has no contract value that any person can access (by withdrawal, loan, or otherwise) without terminating the contract; |
| (iii) |
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 |
| (iv) |
The contract is not held by a transferee for value. |
| (d) |
An account that is held solely by an estate if the documentation for such account includes a copy of the deceased’s will or death certificate. |
| (e) |
An account, which includes a trust account, established in connection with any of the following: |
| (i) |
A court order or judgment. |
| (ii) |
A sale, exchange, or lease of real or personal property, provided that the account satisfies the following requirements: |
| (aa) |
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; |
| (bb) |
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; |
| (cc) |
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; |
| (dd) |
The account is not a margin or similar account established in connection with a sale or exchange of a Financial Asset; and |
| (ee) |
The account is not associated with an account described in subparagraph C(17)(f). |
| (iii) |
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. |
| (iv) |
An obligation of a Financial Institution solely to facilitate the payment of taxes at a later time. |
| (f) |
A Depository Account that satisfies the following requirements: |
| (i) |
The account exists solely because a customer makes a payment in excess of a balance due with respect to a credit card or other revolving credit facility and the overpayment is not immediately returned to the customer; and |
| (ii) |
Beginning on or before 1 March 2016, the Financial Institution implements policies and procedures either to prevent a customer from making an overpayment in excess of $50,000, or to ensure that any customer overpayment in excess of $50,000 is refunded to the customer within 60 days, in each case applying the rules set forth in paragraph C of Section VII for currency translation. For this purpose, a customer overpayment does not refer to credit balances to the extent of disputed charges but does include credit balances resulting from merchandise returns. |
| (g) |
any other account that presents a low risk of being used to evade tax, has substantially similar characteristics to any of the accounts described in subparagraphs C(17)(a) through (f), and included in the list of Non-Reporting Financial Institutions referred to in Annex II to these Regulations as an Excluded Account, provided that the status of such account as an Excluded Account does not frustrate the purposes of the Common Reporting Standard. |
| (1) |
The term "Reportable Account" means a Financial Account that is maintained by a Reporting Financial Institution and is held by one or more Reportable Persons or by a Passive NFE with one or more Controlling Persons that is a Reportable Person provided it has been identified as such pursuant to the due diligence procedures described in Sections II through VII. |
| (2) |
The term "Reportable Person" means a Reportable Jurisdiction 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 Related Entity of a corporation described in clause (i); |
| (iii) |
a Governmental Entity; |
| (iv) |
an International Organization; |
| (vi) |
a Financial Institution. |
| (3) |
The term "Reportable Jurisdiction Person" means an individual or Entity that is resident in a Reportable Jurisdiction under the tax laws of such jurisdiction, or an estate of a decedent that was a resident of a Reportable Jurisdiction. For this purpose, an Entity such as a partnership, limited liability partnership or similar legal arrangement that has no residence for tax purposes shall be treated as resident in the jurisdiction in which its place of effective management is situated. |
| (4) |
The term "Reportable Jurisdiction" means any jurisdiction other than the United States of America or South Africa. |
| (5) |
The term "Participating Jurisdiction" means a jurisdiction with which South Africa has an agreement in place pursuant to which it will provide the information specified in Section I, and which— |
| (a) |
in the case of the MCAA, is identified in a published list and updated by the OECD from time to time; and |
| (b) |
in the case of another multilateral or bilateral agreement or arrangement between South Africa and a jurisdiction not on the MCAA list, is identified in a list and updated by SARS from time to time. |
| (6) |
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(s), the trustee(s), the protector(s) (if any), the beneficiary(ries) or class(es) of beneficiaries, and any other natural person(s) 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" must be interpreted in a manner consistent with the Financial Action Task Force Recommendations. |
| (7) |
The term "NFE" means any Entity that is not a Financial Institution. |
| (8) |
The term "Passive NFE" means any: (i) NFE that is not an Active NFE; or (ii) an Investment Entity described in subparagraph A(6)(b) that is not a Participating Jurisdiction Financial Institution. |
| (9) |
The term "Active NFE" means any NFE that meets any of the following criteria: |
| (a) |
Less than 50 per cent of the NFE’s gross income for the preceding Reporting Period is passive income and less than 50 per cent of the assets held by the NFE during the preceding Reporting Period or other appropriate reporting period are assets that produce or are held for the production of passive income; |
| (b) |
The stock of the NFE is regularly traded on an established securities market or the NFE is a Related Entity of an Entity the stock of which is regularly traded on an established securities market; |
| (c) |
The NFE is a Governmental Entity, an International Organisation, a Central Bank, or an Entity wholly owned by one or more of the foregoing; |
| (d) |
Substantially all of the activities of the NFE 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 NFE does not qualify for this status if the NFE 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; |
| (e) |
The NFE 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 NFE does not qualify for this exception after the date that is 24 months after the date of the initial organization of the NFE; |
| (f) |
The NFE 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; |
| (g) |
The NFE 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; or |
| (h) |
The NFE 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, labour 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 NFE’s jurisdiction of residence or the NFE’s formation documents do not permit any income or assets of the NFE 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 NFE’s charitable activities, or as payment of reasonable compensation for services rendered, or as payment representing the fair market value of property which the NFE has purchased; and |
| (v) |
The applicable laws of the NFE’s jurisdiction of residence or the NFE’s formation documents require that, upon the NFE’s liquidation or dissolution, all of its assets be distributed to a Governmental Entity or other non-profit organisation, or escheat to the government of the NFE’s jurisdiction of residence or any political subdivision thereof. |
| (1) |
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 Annex, and such other person is treated as holding the account. 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. |
| (2) |
The term "AML/KYC Procedures" means the customer due diligence procedures of a Reporting Financial Institution pursuant to the anti-money laundering or similar requirements to which such Reporting Financial Institution is subject. |
| (3) |
The term "Entity" means a legal person or a legal arrangement, such as a corporation, partnership, trust, or foundation. |
| (4) |
An Entity is a "Related Entity" of another Entity if |
| (i) |
either Entity controls the other Entity; |
| (ii) |
the two Entities are under common control; or |
| (iii) |
the two Entities are Investment Entities described in subparagraph A(6)(b), are under common management, and such management fulfils the due diligence obligations of such Investment Entities. For this purpose control includes direct or indirect ownership of more than 50 per cent of the vote and value in an Entity. |
| (5) |
The term "TIN" means Taxpayer Identification Number (or functional equivalent in the absence of a Taxpayer Identification Number). |
| (6) |
The term "Documentary Evidence" includes any of the following: |
| (a) |
A certificate of residence issued by an authorised government body (for example, a government or agency thereof, or a municipality) of the jurisdiction in which the payee claims to be a resident. |
| (b) |
With respect to an individual, any valid identification issued by an authorised 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. |
| (c) |
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 in which it claims to be a resident or the jurisdiction in which the Entity was incorporated or organised. |
| (d) |
Any audited financial statement, third-party credit report, bankruptcy filing, or securities regulator’s report. |
| (7) |
The "Common Reporting Standard" or "CRS" means the Common Standard on Reporting and Due Diligence for Financial Account Information. |
| (8) |
The "Multilateral Competent Authority Agreement" or "MCAA" means the agreement signed by Participating Jurisdictions for purposes of implementing the Standard for Automatic Exchange of Financial Account Information in Tax Matters. |
| (9) |
The term "Reporting Period" means the period commencing on 1 March 2016 and ending on the last day of February 2017 and thereafter the period commencing on 1 March of each year following 2016 and ending on the last day of February of the following calendar year. |
| (10) |
The term "SARS" means the South African Revenue Service. |
In the case of conflict between the Tax Administration Act and the MCAA, the Convention on Mutual Administrative Assistance in Tax Matters or any other international tax agreement, the latter shall prevail over the Tax Administration Act.
Special Investigating Units and Special Tribunals Act, 1996
