Falsification of Accounts and Auditors in Marbella

The accounting offence under Article 310 of the Criminal Code: an autonomous, distinct offence

Unlike Article 290 of the Criminal Code, which protects the assets of the company, its shareholders, or third parties, Article 310 of the Criminal Code is systematically located among offences against the Public Treasury and punishes, with a prison sentence of five to seven months, a taxpayer who completely fails to keep commercial accounting records, keeps double accounting records for the same activity and financial year, omits to record transactions in the mandatory books, or makes fictitious entries in them. For the latter two forms of conduct, the provision further requires that the amount of the omitted or falsified debits or credits — without arithmetic offsetting between them — exceed 240,000 euros per financial year, and that this accounting falsehood have been carried over into the tax returns filed or have determined their omission. It is, therefore, an autonomous offence that may arise independently alongside the corporate falsification offence under Article 290 of the Criminal Code where the same facts — the manipulation of a company's accounts — project a dual disvalue: against the company's assets and against the Public Treasury.

The moment of consummation: a decisive technical question

Case law has precisely fixed the moment at which the offence of falsifying annual accounts is consummated, a matter we work on systematically because of its direct bearing on the computation of the statute of limitations and on the classification of third parties' participation:

"...el delito del artículo 290 se consuma cuando las cuentas, ya elaboradas y, en su caso, auditadas, inician su camino para la presentación a los socios que han de aprobarlas."

(The Court held that the offence under Article 290 is consummated when the accounts, already prepared and, where applicable, audited, begin their route toward presentation to the shareholders who must approve them.) This doctrine has a procedural consequence of the first order: the General Meeting's subsequent approval or rejection of the accounts is legally irrelevant to consummation, which has already occurred beforehand. Conversely, the signing of the accounts by directors or other participants after that moment cannot be classified as an act of necessary cooperation in the offence, since by that point the offence is already a completed fact. This is a technical precision that, correctly applied, can exclude the liability of persons whose involvement chronologically post-dates the moment of consummation.

The criminal liability of the statutory auditor: never a principal, only a participant

One of the most debated and widely reported issues in this area — notably following major proceedings such as the Pescanova case — is the extent of the criminal liability of the external auditor whose report validates accounts that later prove to be false. Legal doctrine and case law agree on a starting point: the auditor cannot be a principal in the offence under Article 290 of the Criminal Code, since they do not hold the status of de facto or de jure director that the offence requires, nor does their report constitute one of the corporate documents expressly covered by the provision. Their liability, where it exists, arises exclusively as an extraneus participant (a person outside the class of persons the offence specifically targets, who may nonetheless be held liable as an inducer, necessary cooperator, or accomplice) — inducer, necessary cooperator, or accomplice — and requires rigorous proof of their criminal intent (dolo):

"...la resolución recurrida no detalla ni precisa, en los hechos probados, la comisión dolosa del delito."

(The Court held that the judgment under appeal did not set out or specify, in its findings of fact, the intentional commission of the offence.) In this ruling, the Supreme Court overturned the conviction that the Audiencia Nacional had imposed on the external auditor, precisely because the narrative of proven facts did not sufficiently establish actual knowledge of the falsehood — as opposed to a merely negligent breach of professional standards (lex artis), which is insufficient to sustain criminal liability. This doctrine is one of our central lines of defense when representing auditing or accounting-advisory professionals: the mere existence of an audit report later contradicted by the facts does not, by itself, entail criminal liability unless certain knowledge of the falsehood at the time the report was issued is proven.

Accounting expert evidence as the central proof

Both to sustain the prosecution — in our capacity as private prosecution (acusación particular) for minority shareholders or for the harmed company itself — and to build the defense of the director or accounting professional under investigation, accounting expert evidence proves to be the decisive proof in these proceedings: reconstructing the actual accounts against those presented, technically calculating the harmful capacity of the falsification, and verifying whether the information available to the auditor at the time of issuing the report would have allowed the irregularity to be detected with the professional diligence required. We have top-tier accounting and forensic experts who work in coordination with counsel from the start of the proceedings, anticipating the technical analysis that the prosecution or opposing defense will present at trial.