Specialist Tax Crime Attorneys in Spain

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. banking data stolen by a private individual), we will ask for its nullity.

The Criminal Tax Procedure Step by Step: From the AEAT Inspection to Trial

Knowing the full roadmap of the case in advance allows each decision to be taken at the right moment, rather than in reaction to the prosecution. These are the usual phases of proceedings for a crime against the Public Treasury:

1. AEAT inspection: The procedure almost always starts with verification and investigation actions by the Spanish Tax Agency. At this stage you act as a taxpayer, with a duty to cooperate, and everything you hand over may end up in a future criminal case. This is the moment to plan what is delivered, how, and with which technical explanation.
2. Referral of the file ("pase del tanto de culpa"): If the Inspection finds signs of a crime — a quota above €120,000 and possible intent — it suspends the penalty procedure and refers the file to the Public Prosecutor or the competent court. Art. 305.5 CP allows the Administration to issue separate assessments (items linked and not linked to the alleged crime) and, unless the judge orders a stay upon provision of security, the criminal proceedings do not halt collection of the tax debt.
3. Complaint or criminal action (querella): The criminal action is usually brought through a complaint filed by the Public Prosecutor or a querella filed by the State Attorney on behalf of the AEAT. Its filing also marks the point after which regularization no longer removes criminal liability. Once admitted, the Investigating Court opens preliminary proceedings.
4. Judicial investigation and its deadlines (Art. 324 LECrim): The investigation has a maximum duration of twelve months from the opening of the case, extendable for successive periods of up to six months by reasoned court order after hearing the parties. Measures ordered within the deadline remain valid even if their results arrive later; measures ordered after expiry, without a valid extension, are not. In tax cases — long and document-heavy — auditing the procedural calendar is a genuine line of defense.
5. Intermediate phase and preliminary hearing: Once the investigation is closed, prosecution and defense briefs are filed. Following the reform introduced by Organic Law 1/2025, the trial court convenes a preliminary hearing (Art. 785 LECrim) to address a possible negotiated plea, evidentiary nullities, breaches of fundamental rights and the admission of evidence. Many tax cases are resolved at this stage, without trial.
6. Trial: Held before the Criminal Court or the Provincial Court depending on the penalty sought, and before the National Court (Audiencia Nacional) in organized or cross-border schemes. The hearing revolves around expert evidence: AEAT officials testify as experts — not as an authority — and their conclusions can be challenged by the defense's own expert report.

How to Avoid Actual Imprisonment: Regularization, Negotiated Plea and Suspension

Spanish criminal tax law provides tiered legal mechanisms so that the threat of prison does not materialize. We work through every file analyzing, in this order, the following routes:

• Full regularization (Art. 305.4 CP): The tax situation is deemed regularized when the taxpayer fully acknowledges and pays the tax debt before being notified of the start of verification actions, before a complaint or querella is filed, or before gaining formal knowledge of the opening of proceedings. It operates as an absolute bar to punishment: criminal liability is extinguished. The provision also extends its effects to the payment of debts already time-barred in the administrative sphere, and prevents prosecution of prior accounting irregularities and instrumental forgeries linked exclusively to the regularized debt.
• Mitigation for late payment (Art. 305.6 CP): When regularization is no longer available, the court may impose the penalty one or two degrees lower if, within two months of the judicial summons as a suspect, the tax debt is paid and the facts are acknowledged in court. That reduction can place the penalty for the basic offense well below the two-year threshold.
• Negotiated plea — conformidad (Arts. 655 and 785 LECrim): The reform under Organic Law 1/2025 strengthened the conformidad: a joint accusation brief signed by all parties is now possible, defense counsel must inform the client of the agreement in writing, and the court verifies that consent is given freely, with the Prosecutor first hearing the injured party — here, the Public Treasury. A well-negotiated plea aims at a sentence not exceeding two years' imprisonment.
• Suspension of the sentence (Art. 80 CP): Prison sentences of up to two years may be suspended when the convicted person is a first-time offender and the civil liability has been satisfied, or a credible payment commitment is assumed in line with their financial capacity. The effort to repair the damage is a factor the court expressly weighs.

The usual combination — payment, a plea within the legal limit and suspension — requires precise calculation of deadlines and amounts from day one. The earlier the defense steps in, the more doors remain open.

Time Limits and Statute of Limitations for Tax Crime

The criminal limitation period depends on the maximum penalty (Art. 131 CP): the basic offense of Art. 305 CP, punishable with up to five years' imprisonment, becomes time-barred after five years; the aggravated offense of Art. 305 bis CP, carrying up to six years, becomes time-barred after ten years, as its maximum exceeds five years' imprisonment without exceeding ten.

The clock starts with consummation, which consolidated Supreme Court case law places at the end of the voluntary filing period for the tax: until then, the taxpayer can still comply. For periodic taxes, the quota is assessed per tax period and, if shorter than twelve months, per calendar year (Art. 305.2 CP); where the fraud is committed within an organization or through entities feigning real economic activity, the crime becomes prosecutable as soon as the statutory amount is reached.

There is also a decisive asymmetry with the administrative track: the Tax Agency's power to assess the debt expires earlier than the crime itself, so a debt that is administratively time-barred may still be prosecuted criminally. Art. 305.4 CP itself gives effect to the regularization of such time-barred debts, and Art. 305.7 CP includes in the civil liability the debt the Administration could not assess due to limitation. Checking, act by act, the chain of interruptions of the limitation period is one of the first steps of any defense.

Tax Crime Defense in Madrid

A substantial share of Spanish tax crime cases is investigated in Madrid. The AEAT's Special Delegation concentrates the largest inspections, and the State Attorney's querellas are distributed among the Investigating Courts of Plaza de Castilla, the Criminal Courts and the criminal sections of the Madrid Provincial Court. Organized schemes and cross-border VAT fraud are handled by the Central Investigating Courts and the Criminal Chamber of the National Court, both seated in the capital.

Our firm, located at Velázquez 27, regularly appears before all these bodies and coordinates the criminal defense with forensic economists and tax specialists from the first summons, both during the inspection phase and in court. If you have received a communication from the AEAT or a judicial summons in Madrid, the file should be analyzed as soon as possible: +34 91 078 65 74.