The Defrauded Tax Liability and the €120,000 Threshold

The offence against the Public Treasury (Art. 305 CP) protects the socioeconomic order and, specifically, the State's collection capacity constitutionally guaranteed in Art. 31 of the Spanish Constitution as the principle of contribution to sustaining public expenses. It does not constitute simple administrative non-payment: it requires intentional defrauding conduct with element of deception or concealment. The nuclear typical element is the defrauded quota: only fraud exceeding €120,000 per tax and year merits criminal reproach. Consolidated Supreme Court case-law establishes it is a result offence requiring defrauding action, effective patrimonial damage to the Public Treasury and causal nexus between both, without mere administrative tax infraction sufficing to integrate the criminal type.

The commissive modalities are diverse. Elusion by action covers the presentation of tax returns with falsified data, simulation of operations, concealment of income, undue deduction of fictitious expenses, or use of false invoices. Elusion by omission consists of not filing due tax returns (IRPF, Corporate Tax, VAT, Wealth Tax) when there is a legal obligation and the resulting quota exceeds the typical threshold. The undue obtaining of tax refunds for amounts above €120,000 integrates an autonomous modality. The aggravated type (Art. 305 bis CP) raises the penalty to 2 to 6 years of prison when defrauded quota above €600,000, criminal organization, interposition of persons or opaque structures, or use of tax havens concur; prescription extends to 10 years. The EU tax offence (Art. 305.3 CP) specifically sanctions fraud to European Union financial interests.

The penalties and consequences are severe and multidimensional. The basic type carries 1 to 5 years of prison and proportional fine from the amount to six times the defrauded quota. The aggravated type (Art. 305 bis CP) raises the penalty to 2 to 6 years of prison and fine from double to sixfold, which typically prevents suspension, available only for sentences not exceeding 2 years (Art. 80 CP). Accessory consequences include the loss of possibility to obtain subsidies or public aid for 3 to 6 years, prohibition to contract with the Administration, special disqualification for profession, trade or public function (in qualified scenarios), and registration in the AEAT "defaulters list" (Art. 95 bis LGT) if debt exceeds €600,000. Civil liability arising from the offence (Arts. 109-115 and 305.7 CP) includes the defrauded quota and late-payment interest; the security required to guarantee the financial liabilities cannot be less than their probable amount plus one third (Art. 589 LECrim). Corporate liability (Art. 31 bis CP) can be activated when acts are committed in benefit of the entity by administrators or employees.

Technical defence is built on four axes. First, the expert battle on defrauded quota: AEAT usually applies maximalist criteria ("in dubio pro aerario"); private accounting expert evidence can prove that rejected expenses were effectively deductible, that amortizations and provisions were correctly applied, or that negative taxable bases pending compensation were not computed; reducing the quota below €120,000 automatically extinguishes the criminal type. Second, the challenge of defrauding intent: economy of option (lawful use of regulatory flexibility to pay less), reasonable interpretation of complex or ambiguous tax rules, and qualified prior advice endorsing the action, configure error of prohibition (Art. 14.3 CP), which excludes criminal liability when invincible and lowers the penalty by one or two degrees when vincible. Third, the tax regularization: Art. 305.4 CP establishes absolutory excuse when the tax situation is voluntarily regularized before the start of inspection actions, criminal complaint or report notification; full payment of debt, surcharges and interest extinguishes criminal liability. Fourth, the prescription: the basic offence prescribes 5 years after the end of voluntary deadline to declare, the aggravated at 10 years; rigorous analysis of administrative notifications and interruptive actions can determine extinction of the offence.

In current forensic practice, tax-offence investigations have reached massive dimensions after the development of AEAT-Tax Agency technological tools: big data analysis, integration of the SII model (Immediate Information Supply) in VAT, automatic cross-checks with model 347, CRS-FATCA international automatic exchange, geolocation for tax residency. The Anti-Corruption Prosecutor, the National Office for Fraud Investigation (ONIF) and the Investigation Section of the Central Court of Instance have specialized teams in complex economic offences. Act 11/2021 on tax-fraud prevention, Organic Law 14/2022 transposing European directives, Directive 2017/1371/EU (PIF) on fraud to EU financial interests, Organic Law 1/2025 on Justice Service Efficiency and constitutional case-law on presumption of innocence configure a demanding normative framework. At Alonso Sala, our criminal lawyers specialized in tax offences work with multidisciplinary teams of forensic accounting experts, certified public accountants, tax-law specialists and economic experts to articulate rigorous technical defences that can determine atypicality due to quantitative insufficiency, acquittal due to error of prohibition, sentence suspension when it does not exceed 2 years, or negotiation of strategic pleas avoiding actual imprisonment.