Specialist Tax Crime Attorneys in Spain
Specialist criminal defense attorneys in tax fraud across Spain. AEAT defense, Art. 305 CP regularization and procedural strategy.
The tax offence (Article 305 of the Spanish Criminal Code (CP)) is committed by defrauding the Public Treasury of an amount exceeding €120,000 per tax and tax period, and is punished with imprisonment from 1 to 5 years and a fine of one to six times the amount defrauded. Where the amount defrauded exceeds €600,000, the aggravated form applies (Article 305 bis CP), with imprisonment from 2 to 6 years. Voluntary and complete regularisation before notification of proceedings excludes criminal liability. With more than 15 years of experience, we assess the real amount owed, the statute of limitations, and the routes to regularisation.
You are under investigation for a tax offence: what it means and what happens now
Unlike almost any other offence, this one rarely begins at a police station: it begins at a tax office. While the audit remains open you are a taxpayer under a duty to cooperate, and everything you hand over stays on file. When the inspector identifies indications of an offence — an evaded liability exceeding 120,000 euros per tax and period, plus an intent to defraud going beyond error or technical disagreement — the file is sent to the Public Prosecutor or to the court, and your position changes completely: you become a formal suspect, with the right not to incriminate yourself. What does not change is collection: criminal proceedings do not in themselves halt enforcement of the tax debt, unless the judge suspends it against the provision of security (Art. 305.5 CP).
The summons as a formal suspect comes from the investigating court, not from the tax inspectorate, and includes the notice of rights under Art. 118 LECrim. Arrest is exceptional in these matters; what is common are asset-based precautionary measures — security and attachment — to guarantee civil liability, which covers the unassessed debt plus interest. Nor is this a case resolved through the fast-track route: it proceeds as ordinary preliminary proceedings, with a long and essentially documentary investigation, and trial falls to the Criminal Court or the Provincial Court depending on the penalty sought (1 to 5 years in prison and a fine of one to six times the amount evaded in the basic form, plus loss of the ability to obtain public subsidies or tax benefits for 3 to 6 years). There are, however, two real clocks: regularisation only removes criminal liability if it is complete and comes before notice of the audit or, failing that, before the complaint is filed (Art. 305.4 CP); and Art. 305.6 CP allows the penalty to be reduced by one or two degrees where, within two months of the court summons, the tax debt is paid and the facts are admitted before the judge. That second deadline means the figures must be settled before the first hearing.
What to do (and what not to do) before making a statement
- Do not make a statement without a lawyer you trust. Arts. 118 and 520 LECrim give you the right to remain silent, not to incriminate yourself and to hold a confidential meeting with your lawyer beforehand. Before that statement, everything already handed to the inspectorate as a taxpayer must be reviewed: it is on file, and it is what you will be asked about.
- Do not contact those who will be giving evidence. The tax inspector appears as an expert witness, not as an authority, and employees, partners, clients or suppliers may be called as witnesses. Any attempt to align accounts with them is read as evidence against you and worsens your starting position.
- Gather the tax records for the period audited. Returns and self-assessments for the years concerned, accounting books and records, invoices with their payment evidence, statements for your own and the companies' accounts, contracts and the inspection records. And above all the full correspondence with the tax adviser: it is the piece on which a defence based on error or on reliance on the professional stands or falls.
- Do not delete or reorganise emails, accounting files or backups. Accounting systems log changes and storage media are usually recoverable, so deletion is read as a sign of concealment. On top of that, keeping separate sets of books, failing to record transactions or making fictitious entries has its own offence under Art. 310 CP.
- Do not make payments or file amended returns without settled figures. Regularisation only takes effect if it is complete — acknowledgement and payment of the tax debt — and falls within the window of Art. 305.4 CP. A partial, late payment does not exempt you and is later produced as an admission of the fraud. The right order is to establish the actual liability for each tax and period first, and decide afterwards.
I have received a tax inspection report: does this end up in court?
Not every inspection report ends up before a criminal court. The vast majority of audits are closed within the administrative track: an assessment record, a tax assessment, a penalty file and, where there is disagreement, an administrative appeal. The file only crosses into the criminal sphere when the inspector identifies indications of an offence, and there are two of them, not one: an evaded liability exceeding €120,000 per tax and period, and an intent to defraud going beyond error, a difference of interpretation or plain non-payment.
Where both are present, the inspectorate cannot continue to impose penalties: it stays the penalty procedure and refers the file to the Public Prosecutor or to the competent court. The Prosecutor or the State Attorney then decide whether to file a complaint or a querella, and your position changes completely: you cease to be a taxpayer under a duty to cooperate and become a formal suspect, with the right to remain silent and not to incriminate yourself. What does not change is collection: Art. 305.5 CP allows the Administration to issue separate assessments for items linked and not linked to the alleged offence, and the criminal proceedings do not in themselves halt enforcement of the debt, unless the judge orders a stay against the provision of security.
The decisive moment therefore comes earlier: whatever is handed over, signed and explained during the audit is the material on which the prosecution case is later built. We set out your rights and what to do at that stage in our guide on a tax authority inspection and how to defend yourself. Where the regularisation stems from crypto-asset gains, traceability calls for a specific approach, covered on our crypto tax fraud page. And where the amounts evaded are social security contributions, the threshold and the applicable regime are different (Art. 307 CP): see social security and subsidy fraud.
What the prosecution must prove (Art. 305 CP)
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.
The €120,000 threshold
The threshold is the dividing line between an administrative penalty and a prison sentence, and it works on an "all or nothing" basis. For a tax offence 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.
The defence's first task is therefore arithmetical before it is legal: recalculating the liability tax by tax and year by year. If an accounting expert report shows that rejected expenses were deductible, that there were timing errors, or that loss carry-forwards remained unused, and the liability falls below €120,000, the conduct ceases to be an offence and the file returns to the administrative track. There is no attempted tax offence where the statutory amount is not reached.
"Voluntary Regularization": Your Safe Conduct
The Criminal Code offers a unique exit: the Absolutory Excuse (Art. 305.4 CP). If the taxpayer acknowledges the debt and pays it in full (including late interest) before the Tax Agency notifies the start of verification actions, they will be exempt from criminal liability.
Caution! Time is critical. Once the notification of inspection start is received, regularization no longer avoids the crime, it only serves as a mitigating factor (repair of damage) to lower the penalty.
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:
- Extreme Amount: If the defrauded quota exceeds €600,000.
- Criminal Organization: If the fraud is committed within a criminal organization or group.
- 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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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 actual imprisonment is avoided
What matters to someone under investigation is not the range printed in the Criminal Code but whether they will actually go to prison. The basic offence of Art. 305 CP carries 1 to 5 years, so the technical objective is a final sentence of no more than two years: below that line, suspension of the sentence under Art. 80 CP becomes available. Spanish criminal tax law provides tiered mechanisms to get there, and we work through every file analysing them in this order:
- 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, acts 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.
"The Tax Agency has a presumption of veracity in administrative proceedings, but in criminal proceedings it is just another party. Before the Judge, the Inspector is not the authority, he is a witness. We equalize the forces."
High Tax Specialization Areas
Defrauded Liability & the €120,000 Threshold
How the Art. 305 CP liability is calculated per tax and year, and how it is contested with forensic accounting.
VAT Fraud & Carousels
Defense in intra-community VAT schemes. Chain liability and undue deductions.
Accounting Crime
Defense against accusations of double accounting or forgery in mandatory books (Art. 310 CP).
International Taxation
Offshore structures, transfer pricing, and tax residence simulation.
False Invoices
Defense in issuing and using false or irregular invoices to defraud the tax authorities (Art. 305 and 392 CP).
Voluntary Tax Disclosure
Exculpatory regularization under Art. 305.4 CP: full and truthful disclosure before any inspection notice.
Crypto Tax Fraud
Concealment of crypto-asset gains from the tax authorities and reporting obligations (Art. 305 CP).
Social Security Fraud (Art. 307 CP)
Evasion of social security contributions above €50,000 and subsidy fraud (Art. 308 CP).
Why Alonso Sala for Tax Criminal Law?
We combine the procedural aggressiveness of the criminal lawyer with the technical precision of the tax lawyer. We leave no flank exposed.
- Hybrid team of criminal lawyers and tax advisors.
- Experience in VAT schemes and Carousel Operations.
- Confidential management of voluntary regularizations.
- Defense of executives against liability derivations.
Voluntary regularisation (Art. 305.4 CP)
Voluntary regularisation under Art. 305.4 CP is the only route that fully extinguishes criminal liability for a tax offence. It requires the full acknowledgement and payment of the tax debt, and it only produces that effect if it takes place before the statutory window closes.
The situation can no longer be regularised for criminal purposes from any of these three moments:
- The Tax Administration serves notice of the start of verification or investigation proceedings aimed at determining the debt.
- Where no such proceedings have begun, the Public Prosecutor, the State Attorney or the representative of the regional, provincial or local Administration files a complaint or querella.
- The Public Prosecutor or the Investigating Judge take steps that give the taxpayer formal knowledge of the opening of proceedings.
Art. 305.4 CP itself extends its effects to the regularisation of debts already time-barred in the administrative sphere, and bars prosecution of accounting irregularities and prior instrumental forgeries linked exclusively to the regularised debt. Once that window has closed, payment no longer exempts, but it can operate as the late-payment mitigation of Art. 305.6 CP.
Economic Criminal Law in Spain: Tax Fraud, Money Laundering and Corporate Crimes
Economic criminal law encompasses the most severe financial penalties in the Spanish Criminal Code. Tax fraud over €120,000 (Art. 305 CP), money laundering (Art. 301 CP), and corporate crimes (Art. 290-297 CP) are complex offenses where defense requires a combination of criminal law expertise and deep accounting/financial knowledge.
Penalty Comparison: Economic Offenses
| Offense | Threshold | Penalty |
|---|---|---|
| Tax Fraud (Art. 305) | >€120,000 | 1 – 5 years + fine x6 |
| Aggravated Tax Fraud | >€600,000 | 2 – 6 years |
| Money Laundering (Art. 301) | Any amount | 6 months – 6 years |
| Aggravated Laundering | Organized/financial system | Up to 9 years |
| Corporate Crime (Art. 290) | Balance sheet falsification | 1 – 3 years |
| Punishable Insolvency (Art. 259) | Fraudulent bankruptcy | 1 – 4 years |
Key Defense Strategies
Tax Regularization Defense (Art. 305.4 CP)
Pay the full tax debt before charges are formally filed and the crime is extinguished. This is the most powerful complete defense in tax fraud cases.
Challenge the €120K Threshold
The tax authority's calculation method is often contestable. Independent forensic accounting can challenge the assessed figure below the criminal threshold.
Money Laundering 'Self-laundering' Issues
Spanish courts have debated whether the primary offender can also be convicted of laundering their own proceeds. Challenge the double jeopardy implications.
Corporate Crime: Harm to Company vs. Shareholders
Art. 295 corporate crimes require actual financial harm to the company or its members. Demonstrate that any loss was speculative or absent.
Frequently asked questions on tax fraud
What is the threshold for tax fraud?
What is voluntary regularization?
Can I go to jail for tax fraud?
If regularization is no longer possible, is paying the debt still useful?
What does it mean that the Tax Agency 'refers the file' to prosecutors?
What value does the inspection report have in trial?
Does tax fraud expire?
What liability does the company administrator have?
Is the tax advisor also liable?
What if I didn't declare cryptocurrencies?
What does a criminal tax lawyer actually do in a tax fraud case?
Economic Criminal Defense: Firm Approach
Economic criminal law is a technically demanding area where the frontier between legitimate business activity and criminal conduct has narrowed due to European and Spanish regulatory sophistication. Our firm combines classical legal expertise with economic-financial analysis, forensic accounting and parallel-proceedings coordination (administrative, tax, civil).
Tax Crime Defense
Dedicated pages for defense against the Tax Agency and the Special Prosecutor in the main jurisdictions:
All pages in this practice area
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