S.I. No. 583/2015 - Returns of Certain Information by Reporting Financial Institutions Regulations 2015.

CONTENTS

Regulation

1. Citation and commencement

2. Interpretation

3. General reporting requirements

4. Obligation to deliver a return

5. Appointment of third parties

6. Due diligence procedures

7. Maintaining records

8. Authorisation of authorised officers

9. Inspection of records and provision of information and assistance

S.I. No. 583 of 2015

RETURNS OF CERTAIN INFORMATION BY REPORTING FINANCIAL INSTITUTIONS REGULATIONS 2015

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 1st January, 2016.

The Revenue Commissioners, in exercise of the powers conferred on them by section 891F (inserted by section 28 of the Finance Act 2014 (No. 37 of 2014)) of the Taxes Consolidation Act 1997 (No. 39 of 1997), with the consent of the Minister for Finance, hereby make the following Regulations:

Citation and commencement

1. (1) These Regulations may be cited as the Returns of Certain Information by Reporting Financial Institutions Regulations 2015.

(2) These Regulations come into operation on 31 December 2015.

Interpretation

2. (1) In these Regulations—

“Act” means the Taxes Consolidation Act 1997 ;

“authorised officer” means an officer of the Revenue Commissioners authorised under Regulation 8;

“high value account” means a preexisting individual account with an aggregate balance or value that exceeds US$1,000,000 as of 31 December 2015 or 31 December of any subsequent year;

“lower value account” means a preexisting individual account, which is not a high value account;

“new account” means a financial account maintained by a reporting financial institution and opened on or after 1 January 2016;

“preexisting account” means—

(a) a financial account maintained by a reporting financial institution as of 31 December 2015, or

(b) any financial account of an account holder, regardless of the date such financial account was opened, where—

(i) the account holder also holds with the reporting financial institution, or with a related entity within the same jurisdiction as the reporting financial institution, a financial account that is a preexisting account under paragraph (a),

(ii) the reporting financial institution, and, as applicable, the related entity within the same jurisdiction as the reporting financial institution, treats the account and the account referred to in subparagraph (i), and any other financial account of the account holder that is treated as a preexisting account under this paragraph, as a single financial account for purposes of satisfying the standards of knowledge requirements specified in section VII(A) of the standard, and for purposes of determining the balance or value of any of the financial accounts when applying any of the account thresholds set out in sections III, V and VII of the standard,

(iii) that account is subject to AML/KYC procedures and the reporting financial institution is permitted to satisfy AML/KYC procedures for the account by relying upon the AML/KYC procedures performed for the preexisting account described in paragraph (a), and

(iv) the opening of the financial account does not require the provision of new, additional or amended customer information by the account holder other than for purposes of these Regulations;

“related entity” in relation to an entity, means another entity where—

(a) either entity controls the other entity,

(b) both entities are under common control, or

(c) both entities are—

(i) investment entities described in paragraph A(6)(b) of section VIII of the standard, and

(ii) under common management, and such management fulfils the due diligence obligations of such investment entities,

and “control”, for the purpose of this definition, includes direct or indirect ownership of more than 50% of the voting power and value in an entity;

“return date” means a date that is not later than the 30th day of June of the calendar year following the year for which a return is required;

“standard” means the Standard for Automatic Exchange of Financial Account Information approved on 15 July 2014 by the Council of the Organisation for Economic Cooperation and Development;

“US$” means United States dollars, the official currency of the United States of America.

(2) For the purposes of these Regulations the following terms referred to in the standard shall have the following meanings—

“excluded account” means—

(a) any account included in the definition of excluded account in subparagraphs (a) to (f) of section VIII(C)(17) of the standard,

(b) a Personal Retirement Savings Account within the meaning of section 787A of the Act,

(c) an approved retirement fund within the meaning of section 784A of the Act,

(d) an approved minimum retirement fund within the meaning of section 784C of the Act,

(e) an approved scheme within the meaning of section 770 of the Act, or

(f) a sponsored superannuation scheme within the meaning of section 783 of the Act;

“exempt collective investment vehicle” means an investment entity that is regulated as a collective investment vehicle—

(a) in relation to which all of the interests in the vehicle are held by or through—

(i) individuals who are not reportable persons,

(ii) entities which are not reportable persons, or

(iii) passive NFEs all of the controlling persons of which are not reportable persons, and

(b) does not fail to qualify as an exempt collective investment vehicle solely because the vehicle has issued physical shares in bearer form, provided that the vehicle—

(i) has not issued, and does not issue, any physical shares in bearer form after 31 December 2015,

(ii) retires all such shares upon surrender,

(iii) performs the due diligence procedures set out in sections II to VII of the standard 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

(iv) has in place policies and procedures to ensure that such shares are redeemed or immobilised as soon as possible, and in any event prior to 31 December 2018;

“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 pension fund of a governmental entity, international organisation or central bank, a qualified credit card issuer, a broad participation retirement fund or a narrow participation retirement fund,

(c) an exempt collective investment vehicle, or

(d) a trust provided that the trustee of the trust is a reporting financial institution and reports all information required to be reported pursuant to section I of the standard with respect to all reportable accounts of the trust;

“qualified credit card issuer” means a financial institution that—

(a) 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 January 2016, implements policies and procedures to—

(i) prevent a customer from making an overpayment in excess of US$50,000, or

(ii) ensure that any customer overpayment (which includes a credit balance resulting from a merchandise return but does not include any part of a credit balance in relation to which there is a disputed charge) in excess of US$50,000 is refunded to the customer within 60 days, in each case applying the rules set forth in paragraph (C) of section VII of the standard for account aggregation and currency translation;

“Reportable Jurisdiction” means any jurisdiction, other than the State and the United States of America.

(3) Subject to paragraphs (1) and (2), and unless the context otherwise requires, a word or expression used in these Regulations that is also used in the standard shall have the same meaning as it has in the standard.

General reporting requirements

3. (1) Subject to paragraphs (3) to (5), a reporting financial institution shall, with respect to the calendar year 2016 and each subsequent calendar year, make and deliver to the Revenue Commissioners on, or before, the return date—

(a) a return in respect of all reportable accounts maintained by the reporting financial institution in that year, or

(b) where it has no reportable accounts in a calendar year, a return which states that it had no such accounts in that year.

(2) The return referred to in paragraph (1)(a) shall, with respect to each reportable account, include:

(a) in the case of each reportable person that is an account holder of the account and that is an individual—

(i) the name,

(ii) address,

(iii) jurisdiction of residence,

(iv) TIN, and

(v) date and place of birth,

of that individual;

(b) in the case of each reportable person that is an account holder of the account and that is an entity—

(i) the name,

(ii) address,

(iii) jurisdiction of residence, and

(iv) TIN,

of that entity, and

(v) where that account holder has been identified, pursuant to Regulation 6, as having one or more controlling persons that is a reportable person, the information specified in subparagraphs (i) to (iv) with respect to each such reportable person and the date and place of birth of each such reportable person;

(c) the account number or, in the absence of an account number, the functional equivalent;

(d) the name and identifying number, if any, of the reporting financial institution;

(e) the account balance or value, including, in the case of a cash value insurance contract or annuity contract, the cash value or surrender value, as of the end of the relevant calendar year or, if the account was closed during that year, the date of closure of the account;

(f) where the account is a custodial account—

(i) the total gross amount of interest, the total gross amount of dividends, and the total gross amount of other income generated with respect to the assets held in the account, in each case paid or credited to the account, or with respect to the account, during the relevant calendar year, and

(ii) the total gross proceeds from the sale or redemption of financial assets paid or credited to the account during the calendar year with respect to which the reporting financial institution acted as a custodian, broker, nominee, or otherwise as an agent for the account holder;

(g) where the account is a depository account, the total gross amount of interest paid or credited to the account during the calendar year;

(h) where the account is a reportable account, other than a custodial account or a depository account, the total gross amount paid or credited to the account holder with respect to the account during the calendar year with respect to which the reporting financial institution is the obligor or debtor, including the aggregate amount of any redemption payments made to the account holder during that year;

(i) the currency in which each amount is denominated.

(3)(a) Notwithstanding paragraph (2)(a) and subject to subparagraph (b), the TIN or date of birth with respect to preexisting accounts is not required to be reported if such TIN or date of birth is not in the records of the reporting financial institution.

(b) A reporting financial institution shall use reasonable efforts to obtain the TIN and date of birth with respect to preexisting accounts by the end of the second calendar year following the year in which preexisting accounts were identified as reportable accounts.

(4) Notwithstanding paragraph (2)(a), the TIN is not required to be reported if a TIN is not issued by the jurisdiction of residence of the account holder.

(5) Notwithstanding paragraph (2)(a), the place of birth of the account holder is not required to be reported unless it is stored in the electronically searchable data maintained by the reporting financial institution.

Obligation to deliver a return

4. Where a reporting financial institution is required under these Regulations to—

(a) deliver a return, or

(b) make a declaration or election,

the return, declaration or election shall be delivered or made electronically—

(i) using such technology as may be approved or provided by the Revenue Commissioners, and

(ii) in such form as the Revenue Commissioners may require.

Appointment of third parties

5. (1) A reporting financial institution may appoint a person as its agent to carry out the duties and obligations imposed on it by these Regulations.

(2) Notwithstanding the appointment of a person under paragraph (1) the reporting financial institution shall—

(a) at all times, have access to and be able to produce, where so requested by an authorised officer, the records and documentary evidence used to identify and report on reportable accounts, and

(b) be responsible for any failure to comply with these Regulations.

Due diligence procedures

6. (1)(a) Subject to this Regulation, a reporting financial institution shall, in order to identify reportable accounts maintained by the institution, apply the due diligence procedures and comply with the rules set out in sections II to VII of the standard.

(b) For the purposes of paragraph (a)—

(i) section III(C)(6) of the standard shall be read as if the reference to 31 December therein was a reference to 31 December 2015,

(ii) section III(D) of the standard shall be read as if it included the date 31 December 2017,

(iii) section V(A) of the standard shall be read as if the reference to 31 December therein was a reference to 31 December 2015,

(iv) section V(B) of the standard shall be read as if both references to 31 December therein were references to 31 December 2015,

(v) section V(E)(1) of the standard shall be read as if the first reference to 31 December therein was a reference to 31 December 2015 and as if the second reference to 31 December therein was a reference to 31 December 2017, and

(vi) section V(E)(2) of the standard shall be read as if the reference to 31 December therein was a reference to 31 December 2015.

(2) Notwithstanding paragraph (1)(b)(ii), a reporting financial institution shall, with respect to high value accounts, apply the due diligence procedures and comply with the rules set out in section III of the standard by 31 December 2016.

(3) A reporting financial institution may—

(a) with respect to preexisting accounts, apply the due diligence procedures relating to new accounts as set out in sections II to VII of the standard to those preexisting accounts, and

(b) with respect to lower value accounts, apply the due diligence procedures relating to high value accounts as set out in sections II to VII of the standard to those lower value accounts.

(4) Notwithstanding the fact that a reporting financial institution applies the procedures referred to at paragraph (2)(a) to a preexisting account the rules specified for preexisting accounts in sections I(C) and V(A) of the standard shall also continue to apply to that account.

(5) 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.

(6)(a) An account shall be treated as a reportable account from the date it is identified as such pursuant to the due diligence procedures in sections II to VII of the standard, and

(b) unless otherwise provided for by these Regulations, information with respect to a reportable account shall be reported annually in the calendar year following the year to which the information relates.

(7) Where an amount is referred to in US$ in sections II to VII of the standard, a reporting financial institution may use an equivalent amount in Euro, converted using a published spot rate determined as of the last day of the calendar year preceding the year in which the due diligence procedures are being applied.

(8) A reporting financial institution shall implement arrangements to obtain the information required under Regulation 3(2) in respect of each reportable account.

(9) Information obtained by a reporting financial institution solely for the purpose of reporting under these Regulations shall not be used for any other purpose.

Maintaining records

7. A reporting financial institution shall keep records of the procedures applied and any information relied upon in order to comply with these Regulations for a period of 6 years from the end of the year in which the procedures were applied or the information relied upon.

Authorisation of authorised officers

8. The Revenue Commissioners may authorise, in writing, Revenue officers to be authorised officers for the purpose of these Regulations.

Inspection of records and provision of information and assistance

9. (1) An authorised officer may by notice in writing require a reporting financial institution to furnish him or her within such time, not being less than 14 days, as may be provided by the notice, with such information (including copies of any relevant books, records or other documents) as he or she may reasonably require for the purpose of determining whether information specified in a return under these Regulations is correct and complete.

(2) An authorised officer may require a reporting financial institution to produce books, records or other documentation and to provide information, explanations and particulars and to give all assistance which the authorised officer may reasonably require for the purpose of the powers and duties conferred on him or her by subsection (6) of section 891F of the Act.

(3) An authorised officer may make extracts from or copies of all or any part of the books, records or other documents or other material made available to him or her or require that copies of books, records or other documents be made available to him or her for the purpose of exercising or performing his or her powers under these Regulations.

The Minister for Finance consents to the making of these Regulations.

GIVEN under the Official Seal of the Minister for Finance,

17 December 2015.

MICHAEL NOONAN,

Minister for Finance.

GIVEN under my hand,

17 December 2015.

NIALL CODY,

Revenue Commissioner.