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131 STAT. 2232 PUBLIC LAW 115–97—DEC. 22, 2017 ‘‘(4) DERIVATIVE DEFINED.—For purposes of this sub- section— ‘‘(A) IN GENERAL.—The term ‘derivative’ means any contract (including any option, forward contract, futures contract, short position, swap, or similar contract) the value of which, or any payment or other transfer with respect to which, is (directly or indirectly) determined by reference to one or more of the following: ‘‘(i) Any share of stock in a corporation. ‘‘(ii) Any evidence of indebtedness. ‘‘(iii) Any commodity which is actively traded. ‘‘(iv) Any currency. ‘‘(v) Any rate, price, amount, index, formula, or algorithm. Such term shall not include any item described in clauses (i) through (v). ‘‘(B) TREATMENT OF AMERICAN DEPOSITORY RECEIPTS AND SIMILAR INSTRUMENTS.—Except as otherwise provided by the Secretary, for purposes of this part, American deposi- tory receipts (and similar instruments) with respect to shares of stock in foreign corporations shall be treated as shares of stock in such foreign corporations. ‘‘(C) EXCEPTION FOR CERTAIN CONTRACTS.—Such term shall not include any insurance, annuity, or endowment contract issued by an insurance company to which sub- chapter L applies (or issued by any foreign corporation to which such subchapter would apply if such foreign cor- poration were a domestic corporation). ‘‘(i) REGULATIONS.—The Secretary shall prescribe such regula- tions or other guidance as may be necessary or appropriate to carry out the provisions of this section, including regulations— ‘‘(1) providing for such adjustments to the application of this section as are necessary to prevent the avoidance of the purposes of this section, including through— ‘‘(A) the use of unrelated persons, conduit transactions, or other intermediaries, or ‘‘(B) transactions or arrangements designed, in whole or in part— ‘‘(i) to characterize payments otherwise subject to this section as payments not subject to this section, or ‘‘(ii) to substitute payments not subject to this section for payments otherwise subject to this section and ‘‘(2) for the application of subsection (g), including rules to prevent the avoidance of the exceptions under subsection (g)(3).’’. (b) REPORTING REQUIREMENTS AND PENALTIES.— (1) IN GENERAL.—Subsection (b) of section 6038A is amended to read as follows: ‘‘(b) REQUIRED INFORMATION.— ‘‘(1) IN GENERAL.—For purposes of subsection (a), the information described in this subsection is such information as the Secretary prescribes by regulations relating to— ‘‘(A) the name, principal place of business, nature of business, and country or countries in which organized or resident, of each person which— 26 USC 6038A. VerDate Sep 11 2014 10:09 Oct 18, 2018 Jkt 079139 PO 00097 Frm 00180 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL097.115 PUBL097 dkrause on DSKBC28HB2PROD with PUBLAWS