Tax Fraud Across Multiple Authorities in Marbella
Offences against the Public Treasury: state or regional tax fraud
Beyond the general framework of the tax offence that we already cover in our specific content on Article 305 of the Criminal Code, this figure presents a structural peculiarity that requires separate treatment: a single criminal offence protects up to four distinct injured parties — the state Treasury, the regional Treasury, the provincial (foral) Treasury, and the local Treasury — each with its own inspection procedure, its own channel for referring the file to criminal proceedings and, in the case of the provincial (foral) territories, its own exclusive regulatory competence. At RAKH ABOGADOS we coordinate the defense in these proceedings with full knowledge of the particularities of each tax authority involved.
A single criminal offence, four tax authorities: the independent computation of the tax debt
Article 305.1 of the Criminal Code punishes anyone who defrauds the "state, regional, provincial (foral), or local" Public Treasury by evading the payment of taxes, withheld amounts or payments on account, or improperly obtaining tax refunds or tax benefits, provided that the defrauded amount exceeds 120,000 euros. This threshold is computed strictly independently for each tax, for each tax period, and for each authority affected: the amount evaded in state personal income tax cannot be added to the amount corresponding to a tax ceded to the Autonomous Community, nor can the amount for one tax year be added to that of another. This separate-computation rule is often the first line of technical defense: when the Tax Inspectorate attributes to a single taxpayer scattered instances of fraud across different taxes and different authorities, it is essential to verify rigorously that each of them, considered individually, actually exceeds the criminal threshold, without any global sum being allowed to artificially reach the criminal figure.
The peculiarity of the provincial (foral) regime: the Basque Country and Navarre
The Historical Territories of the Basque Country, by virtue of the Economic Agreement (Concierto Económico), and the Chartered Community of Navarre, by virtue of the Economic Convention (Convenio Económico), hold exclusive regulatory and management competence over a large part of the taxes that, in the rest of Spain, fall to the State, including personal income tax and corporate income tax. This means that it is the respective provincial (foral) Treasuries — the Provincial Councils (Diputaciones Forales) of Álava, Guipúzcoa and Vizcaya, and the Provincial Treasury of Navarre — that conduct the administrative file, identify the indicia of an offence, and refer the proceedings to the Public Prosecutor's Office, or that directly bring the criminal action through their own procedural representation, following internal procedures and time limits that may differ significantly from those of the State Tax Administration Agency. Knowledge of these provincial (foral) particularities is essential for the defense when the taxpayer carries out economic activity in those territories.
The "assessment linked to the offence": Article 305.5 of the Criminal Code and the 2015 reform
The reform brought about by Organic Law 7/2012 and developed by Law 34/2015 amending the General Tax Law introduced a mechanism of undoubted practical significance: when the Tax Administration finds indicia of an offence, it may issue a separate assessment for, on the one hand, the items and amounts not linked to the possible offence — which follow the ordinary administrative procedure, with its own system of appeals — and, on the other, those that are linked to it, whose processing follows the specific tax regulations, without prejudice to their ultimately being adjusted to what is decided in the criminal proceedings. This "assessment linked to the offence" also allows the Administration to continue enforcing collection of the tax debt despite the pendency of the criminal proceedings, unless the Judge, either of their own motion or at a party's request, decides — with reasoned grounds — to suspend the enforcement proceedings upon provision of sufficient security. Coordinating the criminal defense with the administrative challenge to this parallel assessment requires a unified procedural strategy that we develop from the very first moment.
Civil liability and assistance from the Tax Administration
Article 305.7 of the Criminal Code provides that, for the enforcement of the fine and of the civil liability arising from the offence — which includes the amount of the tax debt not assessed due to limitation or another cause, including default interest — Judges and Courts shall request the assistance of the services of the relevant Tax Administration, which shall collect it through the administrative enforcement (apremio) procedure in accordance with the General Tax Law. This provision, together with the possibility of suspending enforcement of the sentence based on a wealth report prepared with the involvement of the procedural representation of the Treasury concerned — which may include a proposal for payment in installments — opens a channel for financial negotiation that we integrate into the overall defense strategy when the client's economic situation warrants it.
Concurrence of tax authorities and procedural coordination
It is not uncommon for the same facts — the concealment of income from an economic activity, for example — to simultaneously give rise to liability toward the state Treasury, for personal income tax or corporate income tax, and toward the regional or local Treasury, for taxes ceded to or owned by the latter. When several authorities are affected by the same facts, each of them may appear independently in the criminal proceedings, with its own procedural representation and its own claim for civil liability, which requires the defense to adopt a strategy capable of responding in a coordinated way on every front opened, avoiding contradictions between the position taken before each authority.
Our defense strategy
- Verification of the independent computation: we check, tax by tax, period by period, and authority by authority, that the defrauded amount actually exceeds the 120,000-euro threshold required by the criminal offence.
- Coordinated challenge to the assessment linked to the offence: we build the criminal defense together with the available administrative appeals against the separate assessment issued by the Tax Administration.
- Financial negotiation: when it benefits the client, we assess the options for payment in installments and for suspension of enforcement of the sentence linked to acknowledgment of the tax debt.
- Knowledge of the provincial (foral) regime: we apply our specific knowledge of the Basque Economic Agreement and the Navarre Economic Convention when the client's economic activity takes place in those territories.
Are you facing proceedings for a tax offence affecting the state, regional, provincial (foral) or local Treasury, or several of them simultaneously? Proper coordination among all the tax authorities involved is decisive. At RAKH ABOGADOS we combine technical rigor with specific knowledge of each tax regime to defend your assets throughout Spain.