Accounting Crime Defence Lawyers (Art. 310 CP)

The accounting offence (Art. 310 CP) is an autonomous criminal type with peculiar technical configuration: it sanctions the intentional breach of accounting obligations by a person required by tax law to keep commercial accounts, books or tax records, in the four forms the provision lists; it requires no specific purpose of obstructing the inspection. The protected legal interest is dual: the Public Treasury, as reliable accounting is a necessary prerequisite for tax control, and the accounting public faith, guarantee of commercial traffic. It is framed as an abstract-danger offence: it does not require effective damage to the Public Treasury nor reaching the tax-crime threshold (€120,000), although omitted, false or fictitious entries require that the tax returns were not filed or reflect the false accounts and that the amounts omitted or falsified exceed €240,000 per financial year.

Methods of Commission

The commissive modalities are four main ones. Absolute non-compliance, under direct assessment, consists of not keeping accounting or mandatory books at all (Journal Book, Inventory and Annual Accounts Book, official VAT Books, Corporate Tax operations register) by persons or entities that tax law requires to keep them. Double accounting ("B-Box") is the most recurrent and graphic modality: keeping distinct parallel books referring to the same activity and year concealing the true economic situation. Omission of operations consists of not recording acts or businesses effectively performed, typically cash income. Falsehood in accounting entries implies recording non-existent items, figures different from real ones or entries contrary to the economic reality of the represented facts. In these two modalities the offence also requires that the tax returns were not filed or reflect the false accounts and that the charges or credits omitted or falsified exceed €240,000 per financial year, with no offsetting. Anticipated destruction of accounting before the legal conservation period (6 years from the last entry under Art. 30 of the Commercial Code) is not among those forms of conduct, although where there is insolvency it may amount to the offence in Art. 259.1 CP.

Penalties (Art. 310 CP)

The penalties and consequences are apparently moderate but bring severe collateral effects. The principal penalty is 5 to 7 months of prison (Art. 310 CP provides for no fine). Although the custodial penalty is low and usually suspendible (Art. 80 CP), it entails criminal records for offences against the Public Treasury with repercussions in administrative competition, public procurement, subsidies and authorizations. The accounting offence is typically instrumental to the tax offence of Art. 305 CP: the Prosecution uses it as punitive "safety net" when it fails to prove the quantitative threshold of the tax offence (€120,000), allowing conviction of the preparatory concealment conduct. Criminal concurrence with document forgery (Arts. 390-395 CP), unfair administration (Art. 252 CP) or frustration of enforcement and punishable insolvency (Arts. 257-261 CP) can multiply the final criminal reproach. The corporate liability (Arts. 31 bis and 310 bis CP: a fine of six months to one year) can be activated when acts are committed in its name or on its behalf and for its benefit.

Defence Strategy

Technical defence is built on four axes. First, the challenge of defrauding intent: the type requires intent and has no negligent form; accounting errors due to ignorance, omissions due to administrative carelessness or irregularities due to interpretative discrepancy with accounting regulations do not integrate the criminal type when that intent is absent. Second, the distinction of responsibilities: the active subject is the obligated taxpayer (company administrator, individual entrepreneur); the accountant or tax advisor only respond when they intentionally participate in designing the concealment system, not for mere technical document preparation following client instructions (case-law on neutral cooperation). Third, the tax regularization: voluntary submission of complementary returns and payment of tax debt before the start of inspection actions (Art. 305.4 CP) operates as absolutory excuse that extinguishes the tax offence and, by express provision of the same article, bars prosecution of accounting irregularities linked exclusively to the regularised debt. Fourth, the justified cause of destruction: the loss of accounting documentation due to fire, theft or accredited catastrophe, with immediate declaration to authorities, excludes defrauding intent.

Current Forensic Practice

In current forensic practice, accounting offence investigations have intensified due to the development of AEAT-Tax Agency technological tools: massive data analysis (big data), automatic cross-checks with model 347 of third-party operations, Immediate VAT Information Supply (SII), integration with the SISI model of intra-community services and supplies, automatic exchange of financial information (CRS, FATCA). Inspections have moved from documentary auditing to cross-analysis of digital information. Art. 310 CP has barely changed since 1995 (Organic Law 15/2003 only converted the threshold into euros); what has been reinforced are the verification powers of the Tax Administration (General Tax Law). At Alonso Sala, our criminal lawyers specialized in accounting offences work with a multidisciplinary team of forensic accounting experts, certified public accountants and tax law specialists to audit seized accounting, identify technical errors versus intentional acts, articulate strategic tax regularizations, distinguish responsibilities between administrators and advisors, and build defences that minimize criminal reproach or achieve acquittal due to absence of typical defrauding intent.