The turn of 2009: the OECD standard, black lists and Italian pressure

Switzerland accepts Article 26

The financial crisis of 2008 transformed the politics of tax havens. Governments that had rescued their banks with public money turned to the taxation of undeclared offshore wealth. The case brought by the United States against UBS for assisting American clients in tax evasion showed that Swiss secrecy could be breached by the threat of criminal proceedings against a bank. In February 2009 UBS entered into a deferred prosecution agreement and, with the authorization of FINMA, handed over the data of some 250 to 300 clients to the American authorities.¹ The G20 summit in London on 2 April 2009 was expected to publish lists of uncooperative jurisdictions. In this situation the Federal Council decided on 13 March 2009 that Switzerland would adopt the OECD standard on administrative assistance in tax matters under Article 26 of the OECD Model Convention and withdraw its reservation to that article.²

The decision was presented as a limited concession. The Federal Council's press release stated that banking secrecy remained in place and that information would be exchanged in individual cases on concrete and justified requests from other countries.³ The distinction between evasion and fraud ceased to matter for treaty assistance, but only for requests made under renegotiated treaties and only for identified taxpayers. The OECD nonetheless placed Switzerland on its "grey list" of jurisdictions that had committed to the standard without yet implementing it. The Swiss government therefore set out to conclude at least twelve treaties containing the new clause. Agreements with Denmark and France were signed in August 2009, and in the course of 2010 the treaties with the United States, the United Kingdom, France and others entered into force after parliamentary approval.⁴ Italy was not among the first partners. The negotiation of a new Swiss-Italian clause became entangled with the questions of the black lists and the frontalieri and took six years.

The Italian black lists

Italian tax law has used lists of jurisdictions with privileged tax regimes since the 1990s. The most important for Swiss relations was the list established by Ministerial Decree of 4 May 1999 under Article 2 paragraph 2-bis of the Consolidated Income Tax Act (TUIR), which included Switzerland. Its main effect concerned individuals: an Italian citizen who moved his residence to a listed state was presumed, subject to proof to the contrary, to have remained resident in Italy for tax purposes.⁵ Further lists governed the deductibility of costs paid to suppliers in listed states and the taxation of controlled foreign companies, in which Switzerland appeared for certain cantonal tax regimes.⁶ For Ticino the black lists were a constant irritant. They burdened Swiss firms that traded with Italy, deterred wealthy Italians from moving to Lugano and stigmatized the canton as a tax haven in the Italian public debate.

In 2009 the Italian legislature attached a new and far-reaching consequence to the black list. Article 12 of Decree-Law No. 78 of 1 July 2009 was converted by Law No. 102 of 3 August 2009. It provided that, "in deroga ad ogni vigente disposizione di legge", investments and financial assets held in states or territories with a privileged tax regime in violation of the monitoring obligations were presumed, subject to proof to the contrary, to have been constituted with income that had escaped taxation.⁷ The presumption reversed the burden of proof. An Italian resident who had failed to declare a Lugano account was no longer merely liable for the tax on its undeclared yield; the account itself became taxable as concealed income unless he proved that it had been funded with taxed money. The same paragraph doubled, in such cases, the administrative penalties for an unfaithful income tax return under Article 1 of Legislative Decree No. 471 of 18 December 1997.

Notes

1. United States v. UBS AG, deferred prosecution agreement of 18 February 2009 (S.D. Fla.); FINMA order of 18 February 2009, later held unlawful by the Federal Administrative Court (judgment B-1092/2009 of 5 January 2010) and upheld in its result by the Federal Supreme Court (BGE 137 II 431). ↩
2. Swiss Federal Council, "Bundesrat beschliesst Übernahme des OECD-Standards bei der Amtshilfe in Steuersachen", press release of 13 March 2009, https://www.admin.ch/gov/de/start/dokumentation/medienmitteilungen.msg-id-25863.html. ↩
3. Federal Council press release of 13 March 2009 (above): "Das Bankgeheimnis bleibt bestehen"; exchange of information "im Einzelfall auf konkrete und begründete Anfrage". ↩
4. Année politique suisse, "OECD-Standards" (process 15140), https://politchronik.swiss/de/prozesse/15140-oecd-standards.pdf, which records that Switzerland was placed on a "Graue Liste" until it had concluded "mindestens zwölf entsprechenden Doppelbesteuerungsabkommen" and that the first new treaties were concluded with Denmark and France at the end of August 2009. ↩
5. Ministerial Decree of 20 July 2023, as reported in "Dal 2024 Svizzera fuori dalla black list delle persone fisiche", Informazione Fiscale, https://www.informazionefiscale.it/svizzera-paesi-black-list-persone-fisiche-novita-2024, which describes the list of 4 May 1999 and the presumption of residence under Art. 2 para. 2-bis TUIR. ↩
6. Ministerial Decree of 21 November 2001 (controlled foreign companies) and Ministerial Decree of 23 January 2002 (deductibility of costs), both of which mentioned Switzerland only for companies benefiting from specific cantonal tax regimes. Both lists lost their function with the reforms of 2015 and 2016. ↩
7. Art. 12 para. 2 DL 78/2009 as reproduced in Corte di Cassazione, order No. 2662 of 2 February 2018, summarized by Studio Cerbone, https://www.studiocerbone.com/?p=401961, including the second sentence of para. 2: "In tale caso, le sanzioni previste dall'articolo 1 del decreto legislativo 18 dicembre 1997, n. 471, sono raddoppiate". ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of August 2025.