Italian legislation regarding the opening of bank accounts in tax havens

Italian legislation regarding the opening of bank accounts in tax havens

by Daniele Grippo, Italy and Jesús Alamo Ascencio, Spain & EU Last updated Tuesday, February 6, 2018 

According to Italian legislation, it is possible to open offshore bank accounts. However, certain rules must be respected. 

Firstly, an offshore bank account is an account that can be opened at banks and financial institutions located in countries that have a preferential tax regime, or even in which no tax regime is provided at all. Such States, namely tax havens, guarantee a high level of confidentiality for bank customers, as they guarantee the so-called banking secrecy. In other words, it is the right of credit institutions not to disclose information, about the account holders, to third parties.

Italy divides these countries into two categories, those included in the black list and those outside. The States included in the black list are those in which there are no agreements for the exchange of information. Therefore, there is a lack of cooperation between the Sates. This means, on the one hand, that such States can refuse to provide the Italian administrative authority with any clarification and information concerning the account holder. On the other hand, all economic activities between Italian companies and companies domiciled in tax havens are monitored by the Italian authorities.

On the contrary, the States with a preferential tax regime outside the black list are those in which there are agreements that provide for the exchange of information, such as bank accounts and banking data. The purpose of these agreements is to fight tax evasion and to avoid double taxation.

The Italian black list was established by Law No 448 of 1998, subsequently amended by Law No 73 of 2010. This list is updated each year by the Ministry of Economy and the Revenue Agency.

In the updated black list of 2018, these countries are included: Andorra – Bahamas – Barbuda – Brunei – Djibouti – Grenada – Guatemala – Cook Islands – Marshall Islands – US Virgin Islands – Kiribati – Lebanon – Liberia – Macao – Maldives – Nauru – Niue – New Caledonia – Oman – French Polynesia – Saint Kitts and Nevis – Solomon – Samoa – Saint Lucia – Saint Vincent and the Grenadines – St. Helena – Sark – Seychelles – Tonga – Tuvalu – Vanuatu.

Furthermore, according to article 3, paragraph 1 of the Ministerial Decree of 23 January 2002, a special regime applies to the following countries: Angola – Antigua – Costa Rica – Dominica – Ecuador – Jamaica – Kenya – Mauritius – Panama – Puerto Rico – Switzerland – Uruguay.

The Ministerial Decree No 180 of 2010 established the exclusion from the black list of Cyprus, Malta and South Korea. The exclusion of Cyprus and Malta however, had already been implemented by a resolution of the Revenue Agency, following their entry into the European Union, in 2004. In fact, according to Directive 2003/48/EC, supplemented by Directive 2014/107/EU, in all the EU Member States there is the automatic exchange of tax information. Therefore, a Member State cannot refuse to provide information to another EU Member State, concerning the holder of a bank account.

Moreover, with regards the relationship between Italy and Cyprus, in 1974 it was concluded the Convention to Avoid Double Taxation and for the Prevention of Tax Evasion. This convention was then updated in 2009 by an additional protocol.

The Italian black list will soon be replaced by a European black list. In fact, the European Commission has begun the process of creating a list of non-cooperative countries. The goal is to create an EU black list to overcome the separate national lists and replace them with a single list for all EU Member States.

Specifically, the opening of a foreign bank account for persons residing in Italy is governed by the Decree of the President of the Republic No 917 of 1986 and by Law No 186 of 2014. According to this law, if a person opens a bank account abroad, which exceeds 15,000 euros, that person is required to declare it, filing the so-called Quadro RW. In addition, there is an obligation for the Italian authorities to monitor bank accounts held abroad, whose total maximum value exceed such sum. Therefore, if a bank account exceeds 15,000 euros and the holder does not declare it, the Italian State has the ability to identify it through the exchange of tax information with the foreign State in which the account was opened. Unless the state is indicated in the black list. In this case, as mentioned above, there is no exchange of information.

In addition to bilateral agreements, the exchange of information between States is regulated by the Common Reporting Standard (CRS). This is a system of automatic sharing of tax data and financial information, such as interests and bank accounts, developed by the Organisation for Economic Co-operation and Development (OECD). Since 2018 about 3/5 of the States of the world have joined this system, including Italy and Cyprus.

The Law No. 97 of 2013 provides various sanctions in the event that a person required to declare a foreign bank account failed to do so:

1) Fixed sanction of 258 euros in case of late submission of the Quadro RW.

2) Variable sanction from 3% to 15% of what is not declared, if the bank account is open in a country not included in the black list.

3) Variable sanction from 6% to 30% of what is not declared, if the bank account is open in a country included in the black list.

Opening a bank account abroad can also be considered a crime, if the purpose is not to pay taxes in Italy. In fact, according to art. 11 of the Legislative Decree No 74 of 2000, If a person open a bank account abroad, in order to avoid the payment of income tax or value added tax, which value exceeds 50,000 euros, can be punished with imprisonment from six months to four years. But, only if the person has performed fraudulent acts suitable to render ineffective the procedure of coercive collection of taxes. Moreover, if the amount of taxes, penalties and interest exceed 200,000 euros, the person can be imprisoned from one to six years.

Therefore, according to Italian law, it is not forbidden to open a bank account in tax havens, albeit there are rules to be respected. The main problem is in applying the law because, as it has been pointed out, for the countries included in the black list it is not possible to verify the bank accounts if the State does not provide the requested information.