Tax Accounting Offences in Marbella

The four conducts of Article 310 CC: abstract danger and concrete danger

Article 310 of the Criminal Code punishes, with a prison sentence of five to seven months, anyone who, being obliged by tax law to keep commercial accounts, books, or tax records, engages in any of four conducts with clearly differentiated natures and evidentiary requirements. Modality a) — absolute failure to comply with the obligation to keep accounts under the direct-estimation tax regime — and modality b) — keeping different sets of accounts that, referring to the same activity and financial year, conceal or misrepresent the company's true situation — constitute, according to the prevailing doctrine, offenses of abstract danger: they do not require the irregularity to actually be carried through to a tax return, the irregular accounting conduct itself being sufficient. Modalities c) — failure to record transactions, or recording them with figures different from the real ones — and d) — fictitious accounting entries — respond, by contrast, to a concrete-danger scheme: the provision itself requires, for punishment, that the corresponding tax returns have been omitted or that those filed reflect the falsified accounts, and that the amount of the omitted or falsified debits or credits exceed 240,000 euros per financial year. This structural distinction between the four modalities is the mandatory starting point of any technical defense in this area.

The subjective element: intent (dolo) and the admissibility of eventual intent

The accounting offence is a strictly intentional (dolosa) offense: since Article 310 of the Criminal Code does not include a clause criminalizing negligent conduct — required by Article 12 of the Criminal Code to punish reckless conduct — none of its four modalities can be committed through negligence. Legal debate has focused instead on whether eventual intent (dolo eventual) falls within the intent required, a question the Supreme Court resolved unequivocally:

"...se pronunció sin vacilaciones al admitir el dolo eventual en todas las modalidades" del delito contable.

(The Court held without hesitation that eventual intent is admissible in all modalities of the accounting offence.) This doctrine is relevant in both directions for our defense: on one hand, the prosecution can sustain the offense by proving that the taxpayer, without directly seeking the irregularity, considered the falsity of their accounts probable and, despite this, accepted that outcome; on the other, precisely because a minimum degree of awareness and acceptance of the risk is required, the liability is excluded of anyone who genuinely was unaware of irregularities committed by a manager or employee without their participation or consent.

The relationship with the tax offence: absorption or autonomous offenses?

One of the most practically significant issues is the relationship between the accounting offence and the tax offence under Article 305 of the Criminal Code when both concur over the same facts. Judicial practice has not been uniform: in some cases the courts have found a conflict of norms, resolved by the criterion of speciality in favor of the tax offence, which would absorb the accounting irregularity that served as its instrument; in others, lower-court case law has opted to convict solely for the accounting offence under Article 310 of the Criminal Code when the evaded amount required by Article 305 of the Criminal Code cannot be proven, but the irregularity in keeping the mandatory books can — a solution adopted, for example, by the Provincial Court of Málaga in a case in which the defendant was acquitted of the tax offence but convicted, instead, of the accounting offence. Precisely analyzing which scenario applies, and which classification is more favorable to the client's interests in the specific case, is one of the central strategic decisions of our defense.

The shield of tax regularization (Article 305.4 CC)

Article 305.4 of the Criminal Code provides that the taxpayer's regularization of their tax situation bars prosecution for any accounting irregularities or other instrumental falsifications they may have previously committed, exclusively insofar as they relate to the regularized debt. This shielding effect, however, requires the concurrence of two requirements that we work through rigorously in every case: that the person who committed the accounting irregularities be the same person benefiting from the regularization, and that those irregularities be actually linked to the tax debt subject to regularization and not to other matters unrelated to it. A partial or poorly structured regularization can leave outside its coverage accounting irregularities that, had they been correctly framed, would have been neutralized.

The liability of the manager or accountant

When the irregular accounts have been materially prepared by a manager, tax advisor, or accounting employee other than the taxpayer, the question of that person's criminal liability arises. Legal doctrine clearly distinguishes two scenarios: if the professional acted on the taxpayer's instructions and without knowledge of the fraudulent purpose, they are exempt from criminal liability; if, on the contrary, they acted with intent, knowing and accepting the purpose of the accounting irregularity, they are liable as a participant — inducer, necessary collaborator, or accomplice — in the offense, with a lower penalty than the principal offender but with full criminal liability. Establishing the actual degree of knowledge held by the accounting professional is, consequently, decisive both for their own defense and for that of the taxpayer seeking to shift liability onto them.