SECTION 12. MISCELLANEOUS

PROVISIONS

Sec. 12.01. QI’s application to become a qualified intermediary and all the Appendices and Attachments to this Agreement are hereby incorporated into and made an integral part of this Agreement. This Agreement, QI’s application, and the Appendices and Attachments to this Agreement constitute the complete agreement between the parties. Sec. 12.02. This Agreement may be amended by the IRS if the IRS determines that such amendment is needed for the sound administration of the internal revenue laws or internal revenue regulations. The agreement may also be modified by either QI or the IRS upon mutual agreement. Such amendments or modifications shall be in writing. Sec. 12.03. Any waiver of a provision of this Agreement is a waiver solely of that provision. The waiver does not obligate the IRS to waive other provisions of this Agreement or the same provision at a later date.

Sec. 12.04. This Agreement shall be governed by the laws of the United States. Any legal action brought under this Agreement shall be brought only in a United States court with jurisdiction to hear and resolve matters under the internal revenue laws of the United States. For this purpose, QI agrees to submit to the jurisdiction of such United States court. Sec. 12.05 . QI’s rights and responsibilities under this Agreement cannot be assigned to another person. Sec. 12.06. Notices provided under this Agreement shall be mailed registered, first class airmail. Notice shall be directed as follows:

To the IRS

Assistant Commissioner (International) Foreign Payments Division OP:IN:I:FP 950 L’Enfant Plaza South, SW Washington, DC 20024

All notices sent to the IRS must include the QI’s QI-EIN.

To QI:

Sec. 12.07. QI, acting in its capacity as a qualified intermediary or in any other capacity, does not act as an agent of the IRS, nor does it have the authority to hold itself out as an agent of the IRS.

IN WITNESS WHEREOF, the above parties have subscribed their names to these presents, in duplicate.

Signed this day of ,

(name and title of person signing for QI)

(name and title of person signing forIRS)

Appendix A

[Name of QI]

[Name of country] (see Attachment 1, for description of know-your customer rules).

[Name of country] (see Attachment 2, for description of know-your customer rules).

. .

. .

[Name of entity affiliated with QI]

[Name of country] (see Attachment ____, for description of know-your customer rules).

[Name of country] (see Attachment ____, for description of know-your customer rules).

Appendix B QI and the IRS agree that any of the following auditors may be used by QI, or any PAI with which QI has an agreement, to perform the external audits required by section 10 of this Agreement.

[Names, addresses, telephone, and fax numbers of external auditors]

January 24, 2000 412 2000–4 I.R.B.

ments; and

• Makes clear how the 401(k) safe harbor rules apply in the case of a profit sharing plan to which a 401(k) feature is added for the first time during a plan year. In addition to modifying the guidance provided in Notice 98–52, 1998–46 I.R.B. 16, relating to 401(k) safe harbor plans, this notice requests comments regarding two significant areas that relate to 401(k) plans in general. The two areas are (1) potential approaches for simplifying the multiple use test applicable to § 401(k) plans, and (2) potential approaches for applying the highly compensated employee definition under § 414(q), the nondiscrimination requirements under § 401(k) and 401(m), and possibly other applicable qualification requirements, when a plan sponsor is involved in a merger, acquisition, disposition, or similar transaction.

II. BACKGROUND

A. SBJPA Amendments to §§ 401(k), 401(m), and 414(q) Under § 401(k)(3) and § 401(m)(2) of the Code, the actual deferral percentage (“ADP”) and the actual contribution percentage (“ACP”) of highly compensated employees (“HCEs”) are compared with those of nonhighly compensated employees (“NHCEs”). Section 414(q) defines a highly compensated employee for purposes of §§ 401(k) and 401(m), and for other purposes under the Code.

Section 1433(a) and (b) of the Small Business Job Protection Act of 1996 (“SBJPA”) added new §§ 401(k)(12) and 401(m)(11) to the Code, effective for plan years beginning after December 31, 1998, to provide design-based safe harbor methods for satisfying the ADP test contained in § 401(k)(3)(A)(ii) and the ACP test contained in § 401(m)(2). Section 401(k)(12) provides that a cash or deferred arrangement (“CODA”) is treated as satisfying the ADP test if the CODA meets certain contribution and notice requirements. Section 401(m)(11) provides that a defined contribution plan is treated as satisfying the ACP test with respect to matching contributions if the plan meets the contribution and notice requirements contained in § 401(k)(12) and in addition meets certain limitations on the amount and rate of matching contributions available under the plan.

ATTACHMENT

1. QI is subject to the following laws and regulations of [name of country] governing the requirements of QI to obtain documentation confirming the identity of QI’s account holders.
2. QI represents that [name and citations to laws and regulations identified in item 1, above] are enforced by [name of enforcement body] and QI shall provide the IRS with an English translation of any reports or other documentation issued by

[name of enforcement body] that relates to QI’s failure to comply with [laws and regulations identified in 1, above]. 3. QI represents that the following penalties apply for failure to obtain, maintain, and evaluate documentation obtained under [name and citations to laws and regulations identified in item 1]. 4. QI shall use the following specific documentary evidence to comply with section 5 of this Agreement:

a. For natural persons: b. For legal persons: 5. QI shall follow the procedures set forth below to confirm the identity of account holders that do not open accounts in person.