Tax Crime Specialist Lawyers & Tax Fraud Experts

The Crime against the Public Treasury (Art. 305 CP) is the maximum expression of the State's punitive power in the economic sphere. We are not facing a mere discussion about taxes, but the real threat of deprivation of liberty. At Alonso Sala, we defend companies and individuals accused of tax fraud, providing a dual vision: impeccable tax technique and aggressive criminal procedural strategy.

The line between tax avoidance (legal) and tax evasion (crime) is fine and technical. Our work consists of demonstrating that the discrepancy with the Tax Agency is interpretive, lacking criminal intent, or that the real amount defrauded does not reach the criminal threshold.

Article 305 CP and the €120,000 Threshold

The Spanish system establishes an "all or nothing" system. For a tax crime to exist, two insurmountable objective requirements must concur:

• Defrauded Quota > €120,000: The amount left unpaid must exceed 120,000 euros. This calculation is made per tax and per year. If you owe €100,000 of VAT for 2023 and €100,000 of Income Tax for 2023, there is no crime (none exceeds 120k), only an administrative infraction.
• Intent (Mens Rea): It is not enough to be wrong. It must be proven that there was a conscious will to hide income or fake expenses to deceive the Treasury.

From Inspection to Court: The Strategy Shift

Many tax crimes are born in a routine inspection that gets complicated. The taxpayer often makes the mistake of providing too much information thinking that "he who has nothing to hide, has nothing to fear".

When the Inspector appreciates signs of a crime, they paralyze the inspection and refer the file to the Prosecutor's Office. At that moment, your rights change: you go from "taxpayer" (must collaborate) to "investigated" (right to remain silent and not incriminate yourself). Detecting that moment and shielding information is vital.

Accounting Crime and Advisor Liability

Often, along with tax fraud, Accounting Crime (Art. 310 CP) is charged. This punishes keeping double accounting or recording fictitious operations. It is a "danger crime" that facilitates fraud.

Who is liable? The Treasury usually shoots against the de facto or de jure Administrator of the company. However, if the fraud was based on complex financial engineering designed by a third party, the tax advisor can be charged as a necessary cooperator. Our defense of the executive is often based on the "principle of trust": the businessman trusted that his advisor was complying with the law.

Aggravated Types: The Real Risk of Prison

Penalties are drastically hardened (2 to 6 years in prison) if any circumstance of Art. 305 Bis CP concurs:

1. Extreme Amount: If the defrauded quota exceeds €600,000.
2. Criminal Organization: If the fraud is committed within a criminal organization or group.
3. Concealment Structures: Use of figureheads or tax havens to hide the identity of the obligor or their assets.

In aggravated types, the statute of limitations is extended to 10 years (compared to 5 for the basic type).

Comprehensive Defense Strategy

At Alonso Sala, we fight the accusation on three fronts:

• Technical-Tax Front: Economic expert report to discuss the tax base. If we manage to lower the quota below €120,000 (e.g., admitting deductible expenses rejected by the inspector), the crime disappears.
• Criminal Front (Intent): Prove that there was a reasonable interpretation of the rule (vincible or invincible mistake of prohibition), eliminating criminal intent.
• Procedural Front (Nullities): Attack the obtaining of evidence. If the Tax Agency used bank data without adequate judicial authorization (e.g. Falciani List and similar), we will ask for its nullity.