Accused of a Tax Crime in Spain? Defence Guide for Taxpayers

Being investigated for tax fraud in Spain can lead to 1 to 5 years in prison if the amount defrauded exceeds €120,000 per tax and fiscal year (Art. 305 CP). Our criminal defence attorneys specializing in tax crimes provide rigorous technical defence in these proceedings. In this guide we explain the elements of the offence, your rights as a suspect and the most common lines of defence.

The Offence: Elements of Tax Fraud

Art. 305 CP punishes whoever defrauds the Public Treasury by evading the payment of taxes. For a crime to exist —rather than a mere tax dispute— several elements must be present:

• Fraudulent conduct: simply failing to pay is not enough; there must be concealment or deception towards the tax authorities.
• An amount above €120,000: the threshold is computed per tax and per fiscal year, not by adding up amounts from different taxes or different years. If the amount does not reach that figure, the matter stays within administrative penalty proceedings, not criminal court.
• Intent: tax fraud requires an intention to defraud. A taxpayer who applies tax rules in a reasonable way does not commit a crime, even if the AEAT disagrees with their interpretation.

Each of these elements must be proven by the prosecution, and each of them opens a line of defence.

Key Defence: Voluntary Regularization

Article 305.4 CP provides a powerful escape: if you voluntarily regularize your tax situation before the AEAT notifies you of inspection, criminal liability is extinguished.

For it to have that effect, the regularization must be complete and truthful: it means acknowledging the debt and paying it in full, without hiding part of the amounts owed. A partial or inaccurate regularization does not extinguish liability and may even hand information to the investigation. That is why it should be analysed with both criminal and tax advice before it is filed.

The decisive factor is timing: the door closes once the AEAT notifies the start of inspection proceedings. Hence the importance of assessing your situation as early as possible, while regularization is still available.

Common Lines of Defence

When regularization is no longer an option, the technical defence is built on the elements of the offence:

• Challenging the calculation of the amount: the figure supporting the accusation comes from the AEAT's calculations, and those calculations can be disputed. A solid forensic economic report can bring the amount below the €120,000 threshold and return the matter to the administrative route.
• Reviewing the per-tax, per-year computation: verifying that amounts from different taxes or fiscal years have not been improperly aggregated to reach the threshold.
• Disputing intent: showing that the conduct stemmed from a reasonable interpretation of tax rules or from a mistake, not from a will to conceal.
• Scrutinizing the referral to criminal court: examining how the file moved from inspection to criminal charges and what use has been made of the documentation the taxpayer provided during the audit.

Your Rights as a Suspect

From the moment the proceedings are directed against you, you hold the rights of any suspect in a criminal case: to be informed of the facts attributed to you, to have a lawyer of your choice, not to testify against yourself or confess guilt, and to propose the evidence that serves your defence. In tax crime cases these rights have an important nuance: much of the material the prosecution relies on was generated during the administrative phase, when you were still acting as a taxpayer and not as a suspect, and that transition deserves careful examination by the defence.

When to Contact a Criminal Tax Lawyer

During the inspection phase, before the case goes criminal. What happens before the AEAT decisively shapes the later proceedings: the statements made, the documents handed over and the way the audit is handled mark the ground on which the case will later be fought. Acting early makes it possible to assess voluntary regularization in time, prepare the forensic economic report and avoid mistakes that are hard to undo later. Our tax crime specialists work alongside forensic economists to challenge AEAT calculations and design the defence strategy from the very first request.