Section 9. CERTAIN PARTNERSHIPS

AND TRUSTS

Sec. 9.01. Joint Account Treatment for Certain Partnerships and Trusts. (A) In General. WP may enter an agreement with a nonwithholding foreign partnership or nonwithholding foreign trust that is either a simple or grantor trust described in this section 9.01(A) to apply the simplified joint account documentation, reporting, and withholding procedures provided in section 9.01(B) of this Agreement. WP and the partnership or trust that apply this section 9.01 to any calendar year must apply these rules to the calendar year in its entirety. WP and the partnership or trust may not apply this section 9.01 to any calendar year in which the partnership or trust has failed to make available to WP or WP’s reviewer the records described in section 9.01(A)(5) of this Agreement within 90 days after these records are requested and the partnership or trust must waive any legal prohibitions against providing such records to WP. If the partnership or trust has failed to make these records available within the 90-day period, or if WP and the partnership or trust fail to comply with any other requirements of this section 9.01, WP must apply the provisions of §§ 1.1441–1 and 1.1441–5 to the partnership or trust as a nonwithholding foreign partnership or nonwithholding foreign trust, must correct its withholding for the period during which the failure occurred in accordance with section 7.03 of this Agreement, and cannot apply this section 9.01 to subsequent calendar years. WP and the partnership or trust that apply this section 9.01 to any calendar year are not required to apply this section 9.01 to subsequent calendar years. A partnership or trust is described in this section 9.01(A) if the following conditions are met. (1) The partnership or trust has a chapter 4 status as a certified deemed-compliant FFI, an owner-documented FFI with respect to WP, an exempt beneficial owner, or an NFFE, and has provided WP with a

certification that it has maintained such chapter 4 status at all times during each certification period; (2) The partnership or trust is a direct partner of WP; (3) None of the partnership’s or trust’s partners, beneficiaries, or owners is a flow-through entity or intermediary; (4) None of the partnership’s or trust’s partners, beneficiaries, or owners is a U.S. person and none of its foreign partners, beneficiaries, or owners is subject to withholding or reporting under chapter 4 (e.g., a nonparticipating FFI or certain passive NFFEs); and (5) The partnership or trust agrees to make available upon request to WP and WP’s reviewer for purposes of WP’s periodic review under section 8 of this Agreement (including to respond to IRS inquiries regarding its compliance review) records that establish that the partnership or trust has provided WP with documentation for purposes of chapters 3 and 4 for all of its partners, beneficiaries, or owners. (B) Modification of Obligations for WP. (1) WP may rely on a valid Form W–8IMY provided by the partnership or trust and may rely on a withholding statement that meets the requirements of §§ 1.1441–5(c)(3)(iv) or (e)(5)(iv) and 1.1471–3(c)(3)(iii)(B) (if the payment is a withholdable payment) and that provides information for all partners, beneficiaries, or owners together with valid Forms W–8 and, for a withholdable payment made to a partner, beneficiary, or owner that is an entity, documentation required under § 1.1471–3(d) to establish such partner’s, beneficiary’s, or owner’s chapter 4 status. The withholding statement, however, need not provide any allocation information. (2) WP must treat amounts distributed to, or included in the distributive share of, the partnership or trust as allocated solely to a partner, beneficiary, or owner that is subject to the highest rate of withholding under chapter 3 and must withhold at that rate. (3) WP may pool report amounts distributed to, or included in the distributive share of, the partnership’s or trust’s direct partners, beneficiaries, or owners in WP’s chapter 3 reporting pools on Form 1042–S as described in section 6.02(D) of this Agreement.

Bulletin No. 2017–6 817 February 6, 2017

WP, participating FFI, registered deemedcompliant FFI, registered deemedcompliant Model 1 IGA FFI, or QI acting as an intermediary for a payment made by WP to the partnership or trust. (4) WP may not act as a withholding foreign partnership with respect to any direct or indirect partner of the partnership or trust that is a U.S. non-exempt recipient, unless the U.S. non-exempt recipient is an owner of an owner-documented FFI or passive NFFE to which WP applies the agency option and is included in WP’s U.S. payee pool (described in section 6.02(C) of this Agreement). (5) The partnership or trust agrees to comply with the documentation requirements described in section 4 of this Agreement. (6) The partnership or trust agrees, to the extent necessary for WP to satisfy its compliance obligations (e.g., if the WP does not receive a waiver as described in section 8.07 of this Agreement), either to (i) conduct an independent periodic review in accordance with the procedures described in section 8.05 of this Agreement and provide WP with the certification required under section 8.03 of this Agreement for each certification period in order to allow the responsible officer of WP to make a certification to the IRS regarding the partnership’s or trust’s compliance with this section 9.02, or (ii) provide WP with documentation or other information for inclusion in WP’s periodic review described in section 8.04 of this Agreement. The partnership or trust must also agree to respond (either directly or through WP) to IRS inquiries regarding its compliance review, as described in section 8.08 of this Agreement, including, if applicable, providing the WP and the IRS with the results of the reviewer’s testing of partners, beneficiaries, or owners described in section 8.06 of this Agreement. (B) Modification of Obligations for WP. (1) WP may rely on a valid Form W–8IMY provided by the partnership or trust, together with a withholding statement described in §§ 1.1441–5(c)(3)(iv) or (e)(5)(iv) and 1.1471–3(c)(3)(iii)(B) (if the payment is a withholdable payment) that includes all information necessary for WP to fulfill its withholding, reporting, and filing obligations under this Agreement. For a withholdable payment, the withholding statement may include a

(4) After WP has withheld in accordance with section 9.01(B)(2) of this Agreement, it may file a separate Form 1042–S for any partner, beneficiary, or owner who requests that it do so. If WP issues a separate Form 1042–S for any partner, beneficiary, or owner, it cannot include such partner, beneficiary, or owner in its chapter 3 reporting pool. If WP has already filed a Form 1042–S and included the partner, beneficiary, or owner in a chapter 3 reporting pool, it must file an amended return to reduce the amount of the payment reported to reflect the amount allocated to the recipient on the recipient’s specific Form 1042–S. WP may file a separate Form 1042–S for a partner, beneficiary, or owner only if the partnership or trust provides a withholding statement that includes allocation information for the requesting partner, beneficiary, or owner and only if the partnership or trust has agreed in writing to make available to WP or WP’s reviewer the records that substantiate the allocation information included in its withholding statement. (5) WP may not include any amounts distributed to, or included in the distributive share of, a partnership or trust to which WP is applying the rules of this section 9.01 in any collective refund claim made under section 7.02 of this Agreement. Sec. 9.02. Agency Option for Certain Partnerships and Trusts. (A) In General. WP may enter an agreement with a nonwithholding foreign partnership or nonwithholding foreign trust that is either a simple or grantor trust described in section 9.02(A) of this Agreement under which the partnership or trust agrees to act as an agent of WP with respect to its partners, beneficiaries, or owners, and, as WP’s agent, to apply the provisions of the WP agreement to the partners, beneficiaries, or owners. By entering into an agreement with a partnership or trust as described in this section 9.02, WP is not assigning its liability for the performance of any of its obligations under the WP agreement. WP and the partnership or trust to which WP applies the rules of this section 9.02 are jointly and severally liable for any tax, penalties, and interest that may result from the failure of the partnership or trust to meet any of the obligations imposed by its agreement with WP. WP and the partnership or

trust that applies the agency option to any calendar year must apply these rules to the calendar year in its entirety. Generally, WP and the partnership or trust that apply the agency option to any calendar year are not required to apply the agency option to subsequent calendar years. If, however, WP withholds and reports any adjustments required by corrected information in a subsequent calendar year under section 9.02(B)(2) of this Agreement, WP must apply the agency option to that calendar year in its entirety. If the partnership or trust is included in WP’s periodic review of compliance as described in section 9.02(A)(6) of this Agreement, WP and the partnership or trust may not apply the agency option to any calendar year in which the partnership or trust has failed to make available to WP or WP’s reviewer the records described in this section 9.02 within 90 days after these records are requested and the partnership or trust must waive any legal prohibitions against providing such records to the WP. If, for any calendar year, the partnership or trust has failed to make these records available within the 90-day period, or if WP and the partnership or trust fail to comply with any other requirement of this section 9.02, WP must apply §§ 1.1441–1 and 1.1441–5 to the partnership or trust as a nonwithholding foreign partnership or nonwithholding foreign trust, correct its withholding for the period in which the failure occurred in accordance with section 7.03 of this Agreement, and cannot apply this section 9.02 to subsequent calendar years. A partnership or trust is described in this section 9.02(A) if the following conditions are met: (1) The partnership or trust is either a direct partner of WP or an indirect partner of WP that is a direct partner, beneficiary, or owner of a partnership or trust to which WP also applies this section 9.02. (2) The partnership or trust has a chapter 4 status as a certified deemed-compliant FFI, an owner-documented FFI with respect to WP, an NFFE, or an exempt beneficial owner, and has provided WP with a certification that it has maintained such chapter 4 status during each certification period. (3) None of the partnership’s or trust’s partners, beneficiaries, or owners is a WT,

February 6, 2017 818 Bulletin No. 2017–6

chapter 4 withholding rate pool (as defined in § 1.1471–1(b)(20)) of nonparticipating FFIs for payments of amounts subject to chapter 4 withholding. The withholding statement may also include chapter 3 withholding rate pools for partners, beneficiaries, or owners that are not intermediaries, flow-through entities (or persons holding interests in the partnership or trust through such entities), U.S. non-exempt recipients, or passive NFFEs with one or more substantial U.S. owners (or one or more controlling persons that is a specified U.S. person under an applicable Model 1 or Model 2 IGA), and the partnership or trust need not provide to WP documentation for these partners, beneficiaries, or owners. Notwithstanding the preceding sentences of this section 9.02(B)(1), the partnership or trust is required to disclose to WP any partner or interest holder that is a passive NFFE with substantial U.S. owners (or controlling persons that are specified U.S. persons under an applicable IGA) or that is a U.S. non-exempt recipient, as well as the account holders of any nonqualified intermediary or interest holders in a flowthrough entity which has an interest in the partnership or trust, and provide all of the documentation and other information relating to those account holders and interest holders that is required for WP or another withholding agent to report the payments made to those account holders and interest holders to the extent required by section 6 of this Agreement. (2) Timing of Withholding . WP must withhold on the date an amount is distributed to, or included in the distributive share of, the partnership or trust based on a withholding statement provided by the partnership or trust on which WP is permitted to rely. The amount allocated to each partner, beneficiary, or owner in the withholding statement may be based on a reasonable estimate of the partner’s, beneficiary’s, or owner’s distributive share of income subject to withholding for the year. The partnership or trust must correct the estimated allocations to reflect the partner’s, beneficiary’s, or owner’s actual distributive share and must provide this corrected information to WP on the earlier of the date that the statement required under section 6031(b) (i.e., Schedule K–1) or the Ben

eficiary Statement or Owner Statement is mailed or otherwise provided to the partner, beneficiary, or owner or the due date for furnishing the statement (whether or not the partnership or trust is required to prepare and furnish the statement). If that date is after the due date (without regard to extensions) for WP’s Forms 1042 and 1042–S for the calendar year, WP may withhold and report any adjustments required by correcting the information in the following calendar year. (3) Payments Reportable under Chapters 3 and 4 . WP shall report on Form 1042–S all amounts subject to chapters 3 and 4 withholding distributed to, or included in the distributive share of, the partnership or trust as follows. (i) For a direct partner, beneficiary, or owner of the partnership or trust that is a nonparticipating FFI, WP shall report an amount subject to withholding using the chapter 4 reporting pool described in section 6.02(C) of this Agreement with the partnership or trust reported as the recipient. (ii) For a direct partner, beneficiary, or owner of the partnership or trust that is a foreign person for which no withholding is required under chapter 4 (other than an intermediary, agent, or flow-through entity described below), WP shall report an amount subject to chapter 3 withholding using the chapter 3 reporting pools as described in section 6.02(D) of this Agreement with the partnership or trust reported as the recipient. (iii) For a direct or indirect partner, beneficiary, or owner of the partnership or trust that is a nonqualified intermediary or flow-through entity, WP shall report payments of amounts subject to chapter 4 withholding included in a chapter 4 withholding rate pool of nonparticipating FFIs using the chapter 4 reporting pool for such partner, beneficiary, or owner with the nonqualified intermediary or flow-through entity reported as the recipient, and WP shall report payments of amounts subject to chapter 3 withholding that are not withholdable payments or are withholdable payments for which no chapter 4 withholding is required by reporting the payments as made to specific recipients as described in 6.02(B) of this Agreement. (4) Form 8966 Reporting Requirements . If

WP is an FFI and if the partnership or trust is a U.S. account (or U.S. reportable account), WP is required to report the partnership or trust consistent with its FATCA requirements as a participating FFI, registered deemed-compliant FFI, or registered deemed-compliant Model 1 IGA FFI. The agreement between WP and the partnership or trust must also provide that WP shall report withholdable payments that the partnership or trust distributes to, or includes in the distributive share of, a partner, beneficiary, or owner that is an NFFE (other than an excepted NFFE) with one or more substantial U.S. owners (or one or more controlling persons that is a specified U.S. person under an applicable IGA) and is the beneficial owner of the withholdable payment received by the partnership or trust. WP must report on Form 8966 in the time and manner provided in § 1.1474–1(i)(2). Such report must include the name of the NFFE that is owned by a substantial U.S. owner (or controlling person that is a specified U.S. person); the name, address, and U.S. TIN of each substantial U.S. owner (or controlling person that is a specified U.S. person); the total of all withholdable payments made to the NFFE during the calendar year (or reportable period under the applicable IGA); and any other information as required by the form and its accompanying instructions. (C) Other Requirements of Agency Agree- ment . WP shall require the partnership or trust to which it applies the agency option described in this section 9.02 to provide WP with all the information necessary for WP to meet its obligations under this Agreement. No provisions shall be contained in the agreement between WP and the partnership’s or trust that preclude, and no provisions of this Agreement shall be construed to preclude, the partnership’s or trust’s joint and several liability for tax, penalties, and interest under chapters 3 and 4 to the extent that underwithholding, penalties, and interest have not been collected from WP and the underwithholding or failure to report amounts correctly on Forms 1042, 1042–S or 8966, is due to the partnership’s or trust’s failure to properly perform its obligations under its agreement with WP. Nothing in the agreement between WP and the partnership or trust shall be construed to limit the partner

Bulletin No. 2017–6 819 February 6, 2017

ship’s or trust’s requirements under chapter 4 as a certified deemed-compliant FFI, an owner-documented FFI with respect to WP, an NFFE, or an exempt beneficial owner. Further, nothing in the agreement between WP and the partnership or trust shall permit the partnership or trust to assume primary chapters 3 and 4 withholding responsibility. Sec. 9.03. Indirect Partners of WP. (A) General Requirements . WP may act as a withholding foreign partnership for reportable amounts distributed to, or included in the distributive share of, passthrough partners and indirect partners if such indirect partner is not a U.S. nonexempt recipient. Notwithstanding the preceding sentence, WP may act as a withholding foreign partnership with respect to an indirect partner that is a U.S. non-exempt recipient if the indirect partner is included in a passthrough partner’s chapter 4 withholding rate pool of recalcitrant account holders or U.S. payees. WP does not need to use the agency option described in section 9.02 of this Agreement or make the pooled reporting election described in section 6.02(D) of this Agreement to apply the procedures described in this section 9.03. (B) Modification of Obligations for WP . (1) Except to the extent described in this section 9.03(B), WP need not forward the documentation and the withholding statement of the passthrough partner and indirect partner to WP’s withholding agent; (2) WP must provide its withholding agent with documentation and other information from any passthrough partner whose direct or indirect partner is a U.S. non-exempt recipient (unless such U.S. non-exempt recipient is included in a chapter 4 withholding rate pool of recalcitrant account holders or U.S. payees); (3) WP will assume primary chapters 3 and 4 withholding responsibility as described in section 3 of this Agreement and must report on its indirect partners on a specific payee basis on Form 1042–S (except to the extent such indirect partners are included in a passthrough partner’s chapter 4 withholding rate pool or a QI’s withholding rate pool) as described in section 6.02(B) of this Agreement, regardless of whether WP made a PR election for its direct partners under section 6.02(D) of this Agreement; and

(4) WP must include any passthrough partner and indirect partner for which it acts as a withholding foreign partnership in its periodic review as described in section 8.05 of this Agreement. (C) Documentation from Passthrough Partner . WP agrees to use its best efforts to obtain from a passthrough partner the documentation of an indirect partner for which WP acts as a withholding foreign partnership. Unless WP can reliably associate an amount distributed to, or included in the distributive share of, any passthrough partner with valid documentation from such partner within the meaning of § 1.1441–1(b)(2)(vii) and, for a withholdable payment, § 1.1471–3(c), WP shall apply the presumption rules described in §§ 1.1441–1(b)(3), 1.1441–4(a), 1.1441– 5(d) and (e)(6), 1.1441–9(b)(3), and 1.6049–5(d) and for a withholdable payment made to an entity, § 1.1471–3(f) or, if WP is an FFI, its FATCA requirements as a participating FFI, registered deemedcompliant FFI, or registered deemedcompliant Model 1 IGA FFI. Generally, WP can reliably associate an amount with documentation provided by a passthrough partner if WP obtains— (1) A valid Form W–8IMY provided by the passthrough partner that, if the payment is a withholdable payment, establishes the chapter 4 status of the passthrough partner; and (2) If the payment is a withholdable payment, a withholding statement that meets the requirements of § 1.1471– 3(c)(3)(iii)(B) that includes the account holders or interest holders of the passthrough partner in chapter 4 withholding rate pools to the extent permitted, and, for an amount subject to chapter 3 withholding that is not a withholdable payment or is a withholdable payment for which chapter 4 withholding is not required, valid documentation described in section 4 of this Agreement provided by account holders or interest holders of the passthrough partner that are not themselves nonqualified intermediaries or flow-through entities. WP may not reduce the rate of withholding with respect to an indirect partner that is a foreign beneficial owner for which it acts as a WP unless WP can reliably associate the payment with valid documentation that establishes the indirect part

ner’s entitlement to a reduced rate of withholding under chapter 3 and, in the case of a withholdable payment, establishes that chapter 4 withholding does not apply. (D) Timing of Withholding . WP must withhold on the date an amount is distributed to, or included in the distributive share of, the passthrough partner based on a withholding statement provided by the passthrough partner on which WP is permitted to rely. The amount allocated to each indirect partner in the withholding statement may be based on a reasonable estimate of the indirect partner’s distributive share of income subject to withholding for the year. The passthrough partner must agree to correct the estimated allocations to reflect the indirect partner’s actual distributive share and must provide this corrected information to WP, on the earlier of the date that the statement required under section 6031(b) of the Code (Schedule K–1) is mailed or otherwise provided to the indirect partner or the due date for furnishing the statement (whether or not the passthrough partner is required to prepare and furnish the statement). If that date is after the due date (without regard to extensions) for WP’s Forms 1042 and 1042–S for the calendar year, WP may withhold and report any adjustments required by correcting the information in the following calendar year. (E) Form 8966 Reporting Requirements . If WP is an FFI and if the passthrough partner is a U.S. account (or U.S. reportable account), WP is required to report the partnership or trust consistent with its FATCA requirements as a participating FFI, registered deemed-compliant FFI, or registered deemed-compliant Model 1 IGA FFI. WP shall also report withholdable payments that WP distributes to, or includes in the distributive share of, a passthrough partner if an account holder or interest holder of such passthrough partner is an NFFE (other than an excepted NFFE) with one or more substantial U.S. owners (or one or more controlling persons that is a specified U.S. person under an applicable IGA) and if the NFFE is the beneficial owner of the withholdable payment received by the passthrough partner. WP must report on Form 8966 in the time and manner provided in § 1.1474– 1(i)(2). Such report must include the name

February 6, 2017 820 Bulletin No. 2017–6

of the NFFE that is owned by a substantial U.S. owner (or controlling person that is a specified U.S. person); the name, address, and U.S. TIN of each substantial U.S. owner (or controlling person that is a specified U.S. person); the total of all withholdable payments made to the NFFE during the calendar year (or reportable period under the applicable IGA); and any other information as required by the form and its accompanying instructions. WP is not required to report under § 1.1474–1(i)(2) on a withholdable payment made to a passthrough partner that is a participating FFI or registered deemedcompliant FFI that is allocated to a payee that is a passive NFFE with one or more substantial U.S. owners on an FFI withholding statement when the participating FFI or registered deemed-compliant FFI includes on the statement the certification described in § 1.1471–3(c)(3)(iii)(B)( 2 )( iv ) (certifying that the FFI is reporting the passive NFFE as a U.S. account or U.S. reportable account in accordance with the terms of the FFI agreement or an applicable IGA), provided WP does not know or have reason to know that the certification is incorrect or unreliable. See § 1.1474–1(i)(2).

Section 10. EXPIRATION, TERMINATION AND DEFAULT

Sec. 10.01. Term of Agreement. This Agreement begins on the effective date, as described in section 12 of this Agreement, and expires upon the earlier of the date WP terminates under its partnership agreement or the end of the sixth full calendar year the Agreement is in effect, unless terminated under section 10.02 or 10.03 of this Agreement. This Agreement may be renewed for additional terms as provided in section 10.07 of this Agreement. Sec. 10.02. Termination of Agreement (In General). (A) In General. Except as otherwise provided in section 10.03 of this Agreement, this Agreement may be terminated by either the IRS or WP prior to the end of its term by delivery of a notice, in accordance with section 11.06 of this Agreement, of termination to the other party. The IRS, however, shall not terminate this Agreement unless there has been a significant change in circumstances, as defined in section 10.04 of this Agreement, or an

event of default has occurred, as defined in section 10.05 of this Agreement, and the IRS determines, in its sole discretion, that the significant change in circumstances or the event of default warrants termination of this Agreement. The IRS shall not terminate this Agreement if WP can establish to the satisfaction of the IRS that all events of default for which it has received notice have been cured within the time period agreed upon. The IRS shall notify WP that an event of default has occurred and that the IRS intends to terminate the Agreement unless WP cures the default or establishes that no event of default has occurred. A notice of termination sent by either party shall take effect on the date specified in the notice, and WP is required to notify its withholding agent of the date its status as a WP was terminated. The termination of the Agreement shall not affect any of WP’s reporting, tax filing, withholding, depositing, or payment responsibilities arising in the calendar years for which this Agreement was in effect and the portion of the calendar year in which termination is requested. The IRS shall revoke WP’s WP-EIN within a reasonable time after the reporting, tax filing, and depositing requirements for such years are satisfied. The termination of this Agreement is not intended to affect any other federal income tax consequences. After the date of termination of this Agreement, WP may not act as a withholding foreign partnership, and must so notify any persons to which WP has furnished a withholding foreign partnership certificate of the termination (including the date of the termination). After the date of termination of this Agreement, the IRS may reinstate this Agreement (or the IRS may require WP to enter into a new withholding foreign partnership agreement) on such terms and conditions and with such modifications as the IRS may determine. (B) Final Certification after a Termina- tion of the Agreement. Upon a termination of this Agreement, WP must provide to the IRS the certification described in section 8.03 of this Agreement covering the period from the end of the most recent certification period (or, if the first certification period has not ended, the effective date of this Agreement) to the date of

termination within six months of the date of termination, regardless of whether a periodic review has been completed for such period. Sec 10.03. Automatic Termination of Agreement. (A) Automatic Termination . Notwithstanding section 10.02 of this Agreement, this Agreement will terminate automatically in the event that the reviewer or the IRS (including during its compliance review described in section 8.08 of this Agreement) discovers that WP was not in possession of Forms W–8 or W–9, as applicable, or documentary evidence, as permitted under section 4.01(A) of this Agreement, for any direct partner at any time that withholding or reporting was required under section 3.02 of this Agreement. The automatic termination will be effective as of December 31 of the year in which the reviewer or the IRS makes that discovery. (B) Cure and Reinstatement after Auto- matic Termination . This Agreement will be reinstated, effective the same date it automatically terminated under section 10.03(A) of this Agreement, if— (1) WP obtains appropriate Forms W–8 or W–9 or documentary evidence, as permitted under section 4.01(A) of this Agreement, that relate to the time withholding or reporting was required, for each such undocumented partner before March 15 of the year following the year in which the Agreement automatically terminated, or (2) All such undocumented partners have ceased to be partners in WP before March 15 of the year following the year in which the Agreement automatically terminated. (C) Payment of Underwithholding and Reporting upon Termination . In the event of automatic termination of this Agreement under this section 10.03, WP must pay any underwithholding of tax, interest, and penalties that the IRS determines is attributable to each undocumented partner for the period during which the partner was undocumented based on the presumption rules, and, if WP has made a pooled reporting election for chapter 3 purposes, WP must file partner specific Forms 1042–S for amounts subject to chapter 3 withholding for which no chapter 4 withholding is required and Schedules K–1 reporting the names and addresses and other required information, as appropriate,

Bulletin No. 2017–6 821 February 6, 2017

for every undocumented partner from the earliest time the documentation was required for that undocumented partner through the date of termination. WP may, however, continue to report on a pooled basis for documented foreign direct partners through this period. Sec. 10.04. Significant Change in Cir- cumstances. For purposes of this Agreement, a significant change in circumstances includes, but is not limited to— (A) Any change in circumstances that would result in a termination of WP under section 708; (B) A change in U.S. federal law, or applicable foreign law, that affects the validity of any provision of this Agreement, materially affects the procedures contained in this Agreement, or affects WP’s ability to perform its obligations under this Agreement; (C) A ruling of any court that affects the validity of any material provision of this Agreement; (D) A significant change in WP’s business practices that affects WP’s ability to meet its obligations under this Agreement; (E) If applicable, a material change in the applicable know-your-customer rules and procedures when WP relied on documentary evidence as permitted in section 4.01(A) of this Agreement; (F) If WP is an FFI (other than a retirement fund), WP’s failure to maintain its status as a participating FFI, registered deemed-compliant FFI, or a registered deemed-compliant Model 1 IGA FFI; or (G) If WP is acting as a sponsoring entity on behalf of a sponsored FFI or sponsored direct reporting NFFE, WP’s failure to comply with the due diligence, withholding, reporting, and compliance requirements of a sponsoring entity. Sec. 10.05. Events of Default. For purposes of this Agreement, an event of default occurs if WP fails to perform any material duty or obligation required under this Agreement and the responsible officer had actual knowledge of or should have known the facts relevant to the failure to perform any material duty. An event of default includes, but is not limited to, the occurrence of any of the following: (A) WP fails to implement adequate procedures, accounting systems, and internal controls to ensure compliance with this Agreement;

(B) WP underwithholds a material amount of tax that WP is required to withhold under chapter 3 or 4 and fails to correct the underwithholding or to file an amended Form 1042 reporting, and paying, the appropriate tax; (C) WP makes excessive refund claims; (D) WP fails to file required Forms, 1042, 1042–S, 8966, 1065, Schedules K–1, or 1120–F (if WP is a foreign reverse hybrid entity) by the due date specified on such forms or files forms that are materially incorrect or fraudulent; (E) If WP is an FFI, WP fails to materially comply with its FATCA requirements as a participating FFI, registered deemedcompliant FFI, or registered deemedcompliant Model 1 IGA FFI; (F) If WP is a sponsoring entity, WP materially fails to comply with the due diligence, withholding, reporting, and compliance requirements of a sponsoring entity; (G) WP fails to perform a periodic review when required or to document the findings of such review in a written report; (H) WP fails to inform the IRS within 90 days of any significant change in its business practices to the extent that change affects WP’s obligations under this Agreement; (I) WP fails to cure a material failure identified in the qualified certification described in Part II.B of the Appendix to this Agreement or identified by the IRS; (J) WP makes any fraudulent statement or a misrepresentation of a material fact with regard to this Agreement to the IRS, a withholding agent, or WP’s reviewer; (K) The IRS determines that WP’s reviewer is not sufficiently independent, as described in section 8.04 of this Agreement, to adequately perform its review function and WP fails to arrange for a periodic review conducted by a reviewer approved by the IRS; (L) WP fails to make deposits in the time and manner required by section 3.05 of this Agreement or fails to make adequate deposits, taking into account the procedures of section 7.05 of this Agreement; (M) If applicable, WP fails to inform the IRS of any change in the applicable knowyour-customer rules within 90 days of the change becoming effective when WP relied on documentary evidence as permitted in section 4.01(A) of this Agreement;

(N) WP fails to cooperate with the IRS on its compliance review described in section 8.08 of this Agreement; (O) A partnership or trust to which WP applies the agency option is in default with the agency agreement and WP fails to terminate that agreement within the time period specified in section 9.02 of this Agreement; (P) WP fails to materially comply with the requirements of a nonwithholding foreign partnership under chapter 3 with respect to any partner for which it does not act as a withholding foreign partnership; (Q) With respect to a consolidated compliance program under section 8.02(C) of this agreement, the Compliance Entity failed to comply with the obligations of a Compliance Entity under section 8.02(C) of this Agreement, and, if the Compliance Entity is a sponsoring entity, the Compliance Entity failed to comply with the due diligence, withholding, reporting, and compliance requirements of a sponsoring entity under chapter 4; (R) If WP is a foreign reverse hybrid entity, WP fails to prepare and retain the PFIC Annual Information Statement or Reconciliation Statement, as required under 6.03(C) of this Agreement; or (S) WP is not in possession of valid documentation described in sections 4.01 through 4.09 of this Agreement for each direct partner as of the due date of the certification described in section 8.03 (C)(1) of this Agreement. Sec. 10.06. Notice and Cure. Upon the occurrence of an event of default, the IRS will deliver to WP a notice of default specifying each event of default. WP must respond to the notice of default within 60 days (60-day response) from the date of the notice of default. The 60-day response shall contain an offer to cure the event of default and the time period in which to cure or shall state why WP believes that no event of default has occurred. If WP does not provide a 60-day response, the IRS will deliver a notice of termination as provided in section 10.02 of this Agreement. If WP provides a 60-day response, the IRS shall either accept or reject WP’s statement that no default has occurred or WP’s proposal to cure the event of default.

If the IRS rejects WP’s statement that no default has occurred or rejects WP’s

February 6, 2017 822 Bulletin No. 2017–6

proposal to cure the event of default, the IRS may offer a counter-proposal to cure the event of default with which WP will be required to comply within 30 days. If WP fails to provide a 30-day response, the IRS will send a notice of termination in accordance with section 10.02 of this Agreement, which WP may appeal within 30 days of the date of the notice by sending a written appeal to the address specified in section 11.06 of this Agreement. If WP appeals the notice of termination, this Agreement shall not terminate until the appeal has been decided. If an event of default is discovered in the course of a review, WP may cure the default, without following the procedures of this section 10.06, if the external reviewer’s report describes the default and the actions that WP took to cure the default and the IRS determines that the cure procedures followed by WP were sufficient. If the IRS determines that WP’s actions to cure the default were not sufficient, the IRS shall issue a notice of default and the procedures described in this section 10.06 shall be followed. Sec. 10.07. Renewal. If WP intends to renew this Agreement, it shall submit an application for renewal to the IRS on the QI/WP/WT Application and Account Management System. This Agreement will be renewed only upon the agreement of both WP and the IRS.