Tax Fraud Specialists in Marbella
Specialists in tax fraud offences
At RAKH ABOGADOS we offer a high-level technical defence against proceedings for offences against the Public Treasury, the form of economic crime in which the line between a reasonable interpretative disagreement over tax matters and criminally relevant conduct demands the most rigorous analysis. We act both at the tax inspection stage — anticipating the criminal risk before the Tax Agency formalises its complaint — and during the pre-trial investigation phase and the trial itself.
Elements of the tax offence (Art. 305 Criminal Code)
Article 305 of the Criminal Code punishes anyone who, by act or omission, defrauds the state, regional, provincial (foral) or local Public Treasury by evading the payment of taxes, withheld amounts or payments on account, or by improperly obtaining refunds or tax benefits, provided the defrauded amount exceeds 120,000 euros per tax and tax period or return. Three elements make up the offence:
- Objective element: a defrauded tax amount exceeding the legal threshold, calculated independently for each tax and tax year.
- Concealment or mendacity element: the law requires something more than mere non-payment; it requires a manoeuvre that conceals or distorts the taxable base before the tax authorities.
- Subjective element: fraudulent intent, that is, knowledge of the tax debt and the will to evade it.
The case-law requirement of "mendacity": mere non-payment is not a crime
Our defence rests consistently on the well-established doctrine of the Supreme Court, which draws a clear line between an administrative infringement and a criminal offence:
"...no basta el mero impago de las cuotas..., porque el delito de defraudación tributaria requiere, además, un elemento de mendacidad."
Tribunal Supremo, Sala de lo Penal, STS 801/2008, de 26 de noviembre de 2008Along the same lines, the Supreme Court has consistently held that criminal liability does not stem from mere non-payment, but from concealing the tax bases from the tax authorities (STS 737/2006, of 20 June). We build one of our central lines of defence on this doctrine: demonstrating that the discrepancy with the Tax Agency stems from a reasonable interpretative view or an accounting error, rather than a deliberate act of concealment.
The aggravated offence under Art. 305 bis Criminal Code
The current reform raises the penalty to imprisonment of 2 to 6 years and a fine of two to six times the defrauded amount when any of the following circumstances is present: (i) a defrauded amount exceeding 600,000 euros; (ii) involvement of an organisation or criminal group; or (iii) the use of interposed individuals or entities, fiduciary arrangements or tax havens that make it difficult to establish the identity of the party liable, the amount defrauded or their assets. Case law has clarified that this aggravated form does not breach the non bis in idem principle in relation to the deceit or concealment inherent in the basic offence under Article 305 of the Criminal Code, since it reflects a greater degree of wrongdoing linked to the opacity of the structure used.
Tax regularisation: the most powerful defence tool (Art. 305.4 Criminal Code)
Paragraph four of Article 305 of the Criminal Code establishes a first-order statutory defence: a person is exempt from criminal liability if they regularise their tax situation through the full acknowledgement and payment of the debt — including interest — before being notified of the start of a tax audit by the authorities, or before the Public Prosecutor's Office, the State Legal Service or the investigating judge directs proceedings against them. Our involvement at this stage is decisive:
- Timing feasibility analysis: we verify whether the client is still within the window that allows for regularisation, before any formal notification.
- Technical calculation of the debt: we coordinate with tax advisors and forensic accountants to calculate the exact amount owed, avoiding an incomplete regularisation that would fail to produce the exempting effect.
- Late regularisation as a mitigating factor: when the exemption is no longer available, we build the case for damage reparation under Article 21.5 of the Criminal Code as a mitigating circumstance of criminal liability.
Related offences: accounting falsification and laundering of the proceeds of tax fraud
Pre-trial investigations for a tax offence are often accompanied by a related charge for an accounting offence (Art. 310 Criminal Code) where there is double bookkeeping or fictitious entries, and — in the most complex cases — by money laundering when the defrauded amount is reintroduced into the lawful economy. Tax regularisation under Article 305.4 of the Criminal Code provides an additional shielding effect: it bars prosecution for accounting irregularities or instrumental falsifications committed exclusively in connection with the regularised debt.
Our defence strategy
- Challenging the subjective element: we demonstrate that the discrepancy stems from a reasonable interpretative view, or from a tax advisor's or auditor's report, and is incompatible with fraudulent intent.
- Scrutiny of the origin of the evidence: we examine the regularity of the tax audit and inspection procedure and of the referral of the file to the Public Prosecutor's Office, as well as any statute-of-limitations issues affecting the tax years under investigation (Art. 131 Criminal Code).
- Defence accounting expert evidence: we work with experts specialising in taxation and forensic accounting to reconstruct the actual taxable base and dismantle the Tax Inspectorate's presumptions.
- Coordination with the administrative channel: we conduct the defence simultaneously in the tax audit procedure and in any separate criminal proceedings, preventing the administrative assessment from unduly influencing the pre-trial investigation.
Are you the subject of a tax audit with a risk of criminal referral, or have you already been summoned as a suspect in a tax offence investigation? Timing is decisive: regularisation only produces its exempting effect before formal notification. At RAKH ABOGADOS we defend your assets and your freedom with technical rigour and specialisation in Economic Criminal Law throughout Spain.
Frequently asked questions, glossary and comparisons
Frequently asked questions
From what amount is an act considered a tax offence?
See answer in Frequently Asked Questions →Can I avoid criminal liability if I regularise my situation with the tax authorities?
See answer in Frequently Asked Questions →Glossary
Mendacity element
A case-law requirement in tax offences according to which mere non-payment of a tax amount is not enough for an offence to exist: a manoeuvre concealing or distorting the taxable base is also required.
See in the Glossary →Tax regularisation
A statutory defence under Art. 305.4 Criminal Code that exempts from criminal liability a person who regularises their situation with the tax authorities through the full acknowledgement and payment of the debt, including interest, before being notified of the start of an audit or before the Public Prosecutor's Office, the State Legal Service or the judge direct proceedings against them.
See in the Glossary →