Fake Invoices in Spain: Which Crime? Forgery, Accounting and Tax Offenses (2026)

Fake invoices are the most common gateway into Spanish economic criminal law for company directors, business owners and self-employed professionals — including foreign nationals running a business in Spain. A single document can fall under up to three different crimes of the Spanish Criminal Code (CP): forgery of a commercial document (art. 392 CP), the accounting offense (art. 310 CP) and criminal tax fraud (art. 305 CP). As criminal defense lawyers for false invoice and tax fraud cases, we explain when each offense applies, how they combine and which exits the law offers.

One Document, Up to Three Crimes

The classic scheme has two players: the issuer, who invoices services or transactions that never existed (or inflates them), and the recipient, who books the invoice to deduct a corporate income tax expense or input VAT that was never actually paid. Each role triggers different provisions:

• Forgery of a commercial document (art. 392 CP): protects the reliability of documents; it punishes creating the simulated invoice, with no monetary threshold at all.
• Accounting offense (art. 310 CP): protects accounting transparency towards the tax authorities; it punishes recording fictitious entries or concealing the company's true position in the mandatory books.
• Tax fraud (art. 305 CP): protects tax revenue; it punishes evasion where the tax due exceeds 120,000 euros per tax and per year.

Whether one, two or all three apply depends on the amounts involved, on each participant's role and on when the scheme is uncovered.

Forgery of a Commercial Document: Art. 392 CP

Art. 392.1 CP punishes a private individual who commits, in a public, official or commercial document, any of the forgeries listed in the first three subparagraphs of art. 390.1 CP, with 6 months to 3 years in prison and a fine of 6 to 12 months. An invoice is the textbook example of a commercial document.

Here lies the decisive technical nuance: a private individual is not liable for the so-called ideological forgery of art. 390.1.4º (untruthfully narrating the facts), which is reserved for public officials. However, settled Supreme Court case law holds that an invoice documenting a wholly non-existent transaction is not a mere untruthful statement but a simulated document under art. 390.1.2º: it creates the appearance of a commercial relationship that never existed, and that is punishable for private individuals. The line between an invoice for a non-existent transaction (simulation, criminal) and an invoice for a real transaction with inaccurate details (ideological falsity, not criminal for a private individual) decides many cases. We analyze it in depth in our guides to art. 392 CP (forgery by a private individual) and art. 390 CP (the forms of document forgery).

Anyone who, without taking part in the forgery, knowingly files the false document in court or uses it to harm another person is punished under art. 393 CP with the penalty one degree below that of the forger.

The Accounting Offense: Art. 310 CP and Its Thresholds

Art. 310 CP punishes with 5 to 7 months in prison anyone required by tax law to keep commercial accounts, books or tax records who:

• a) Completely fails to keep them under the direct assessment regime.
• b) Keeps parallel sets of books for the same business and financial year, concealing or misrepresenting the company's true position.
• c) Fails to record transactions in the mandatory books, or records them with false figures.
• d) Makes fictitious accounting entries in the mandatory books — booking a fake invoice is the textbook case.

Watch the thresholds: under subparagraphs c) and d), the offense requires that the tax returns were either not filed or reflected the false accounts, and that the omitted or falsified debits or credits exceed 240,000 euros per financial year, without arithmetic offsetting between them. It is an autonomous endangerment offense: a conviction is possible even where the fraud never reaches the criminal tax threshold, which is why prosecutors use it as a safety net. It has its own page in our accounting crime defense service.

Criminal Tax Fraud: Art. 305 CP and the 120,000-Euro Threshold

Art. 305.1 CP punishes with 1 to 5 years in prison and a fine of one to six times the evaded amount anyone who defrauds the national, regional or local tax authorities by evading taxes or withholdings, or by unduly obtaining refunds or tax benefits, provided the evaded tax exceeds 120,000 euros. The court also bars the offender from public subsidies and tax benefits for 3 to 6 years.

How the threshold is calculated is critical for the defense (art. 305.2 CP): for periodic taxes, what counts is the amount evaded in each tax period — or in each calendar year if the period is shorter than twelve months — and, in other cases, each separately assessable item. Amounts of VAT, corporate income tax and personal income tax are not added together, nor are different years: each tax and each year must exceed 120,000 euros on its own. With fake invoices the typical mechanics are twofold: deducting input VAT that was never paid and booking a fictitious expense that lowers the corporate income tax base.

Art. 305 bis CP raises the penalty to 2 to 6 years in prison and a fine of two to six times the amount where the evaded tax exceeds 600,000 euros, the fraud is committed within a criminal organization or group, or front persons, fiduciary structures or tax havens are used to conceal the taxpayer's identity or the amounts involved. Below 120,000 euros there is no tax crime and the case remains an administrative tax penalty — but the forgery of art. 392 CP has no threshold and can support a prison sentence on its own.

How Are They Punished Together? Linked Offenses

Where the fake invoice is the instrument of the tax fraud, forgery and tax fraud do not absorb each other: they protect different legal interests, and the courts punish them as linked (medial) offenses under art. 77 CP, one crime being the necessary means to commit the other. The sentencing consequence is serious: the court imposes a penalty above what the more serious offense alone would carry, capped at the sum of the separate penalties.

The division of roles also matters. The issuer of the invoices answers as the perpetrator of the forgery and, typically, as a necessary cooperator in the recipient's tax fraud; the recipient who deducts the invoice answers as the perpetrator of the tax fraud and may also answer for the forgery. The accounting offense, being instrumental, is usually displaced where the completed fraud is already punished under art. 305 (the conflict-of-rules criteria of art. 8 CP), but it regains autonomy where the evaded amount stays below the criminal threshold.

Regularization Under Art. 305.4: an Exit That Reaches the Forgeries

Art. 305.4 CP excludes punishment where the taxpayer makes a complete acknowledgment and payment of the tax debt before being notified that an audit or investigation into that debt has started, before a criminal complaint is filed by the public prosecutor or the State attorney, or before the prosecutor or the investigating judge takes steps giving the taxpayer formal knowledge of proceedings.

And here is its greatest virtue in fake invoice cases: regularization also bars prosecution for the accounting irregularities and other instrumental forgeries the taxpayer may have previously committed, exclusively in relation to the regularized debt. Properly executed, it simultaneously closes off art. 305, art. 310 and the taxpayer's own instrumental forgeries. Even after that window closes, art. 305.6 CP allows the penalty to be lowered by one or two degrees if, within two months of being summoned as a suspect, the taxpayer pays the debt and acknowledges the facts in court. We cover timing and requirements in our guide to tax fraud and the regularization strategy.

What About the Company? Art. 310 bis

Where a legal entity is liable under art. 31 bis CP for crimes against the public treasury, art. 310 bis CP imposes a fine of one to two times the amount defrauded (if the individual's crime carries more than 2 years in prison), two to four times (if it carries more than 5 years), or a fine of 6 months to 1 year in the cases of art. 310 — plus loss of subsidies and tax benefits for 3 to 6 years and a possible ban on contracting with public administrations. Where fake invoices are used to defraud a private party — ordinary fraud rather than tax evasion — corporate liability is channeled through art. 251 bis CP. An effective compliance program can exempt or mitigate the company's liability.

Defense Strategies

1. Proving the transactions were real: contracts, emails, work reports, witnesses and the traceability of the invoiced services dismantle the simulation theory.
2. Financial flow expert evidence: showing there was no kickback of funds to the payer neutralizes the prosecution's star indicator.
3. Challenging the assessed amount: an independent forensic accounting report can bring the evaded tax below 120,000 euros per tax and per year, downgrading the case to an administrative penalty.
4. Ideological falsity is not criminal for private individuals: if the transaction existed and only details of a real invoice are disputed, art. 390.1.4º offers a non-criminality defense.
5. Regularization and mitigation: art. 305.4 as a full bar to punishment and art. 305.6 as qualified mitigation after being charged.
6. Statute of limitations: 5 years for the basic offense of art. 305 and for the forgery of art. 392; 10 years for the aggravated offense of art. 305 bis (art. 131 CP), with computation rules worth challenging separately.

If proceedings are already under way, see our defense guide for taxpayers accused of a tax crime in Spain.