ATTORNEY FOR CRIMES AGAINST THE PUBLIC TREASURY IN MADRID
Specialized criminal defense in tax fraud, Social Security fraud, subsidy fraud and accounting crimes. Criminal defense attorney in Madrid with experience in criminal tax proceedings.
Crimes Against the Public Treasury: what they are and when Criminal Law applies
The crimes against the Public Treasury and Social Security are regulated in articles 305 to 310 of the Criminal Code. Criminal Law only comes into play when the fraud exceeds certain monetary thresholds; below those limits, the conduct is resolved exclusively through administrative channels.
Tax fraud: art. 305 CP
The tax fraud offense under art. 305 CP requires that the defrauded amount —whether by action or omission— exceeds 120,000 euros per fiscal year. This amount is the threshold that separates administrative infringement from criminal offense. The base penalty is 1 to 5 years imprisonment and a fine from one to six times the defrauded amount.
Aggravated offense: art. 305 bis CP
When the tax liability exceeds 600,000 euros, or offshore structures, intermediary persons or criminal organizations are used, the aggravated offense under art. 305 bis applies, with penalties of 2 to 6 years imprisonment and a fine of double to six times the amount. The statute of limitations in this case is 10 years.
When do you need a tax crimes attorney?
The intervention of a criminal defense attorney specialized in tax crimes is urgent as soon as any of these situations occur:
- The Tax Agency (AEAT) has forwarded the file to the Public Prosecutor’s Office or to the Court
- You have received a summons as a person under investigation for tax fraud
- You are notified of a tax inspection with indications of intent or bad faith
- Your company is being investigated for false invoices, double bookkeeping or shell companies
- You are a director or authorized representative and liability may fall on you
- A case is opened for fraud of public subsidies or Social Security fraud
In these crimes, deadlines are crucial. Early action may allow for tax regularization as grounds for penalty exclusion before criminal proceedings formally begin.
Penalties for tax crimes under the Criminal Code
Penalties vary depending on the applicable provision and the amount defrauded:
- Art. 305 CP — Basic tax offense: Tax liability exceeding 120,000 €. Penalty: 1 to 5 years imprisonment and fine of equal to six times the amount. Special disqualification from public employment. Statute of limitations: 5 years.
- Art. 305 bis CP — Aggravated offense: Tax liability exceeding 600,000 € or use of opaque structures. Penalty: 2 to 6 years imprisonment and fine of double to six times the amount. Statute of limitations: 10 years.
- Art. 307 CP — Social Security fraud: Fraud exceeding 50,000 €. Penalty: 1 to 5 years imprisonment. Also provides for aggravated offense above 250,000 €.
- Art. 308 CP — Subsidy fraud: Fraudulent obtaining exceeding 100,000 €. Penalty: 1 to 5 years imprisonment and fine. May involve repayment with interest.
- Art. 310 CP — Accounting offense: Willful failure to comply with bookkeeping obligations. Penalty: imprisonment of 5 to 7 months or fine. It is the only type that does not require a minimum amount.
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Types of crimes against the Public Treasury that we defend
We defend against all types of criminal tax violations and economic fraud against the State.
Tax fraud
Art. 305 CP. Fraud against state, regional, provincial or local Treasury. Minimum amount: 120,000 €. Penalty: 1-5 years.
Social Security fraud
Art. 307 CP. Non-payment or fraud in Social Security contributions. Criminal threshold: 50,000 € per fiscal year.
Subsidy fraud
Art. 308 CP. Fraudulent obtaining of subsidies, aid or public credits exceeding 100,000 €.
Accounting offense
Art. 310 CP. Willful breach of accounting obligations. Penalty: up to 1 year imprisonment.
False invoices
Use or issuance of false invoices to reduce tax liability. May concur with documentary fraud (art. 392 CP).
Aggravated offense
Art. 305 bis CP. Tax liability >€600,000, use of tax havens or shell companies. Penalty: 2-6 years. Statute of limitations: 10 years.
DEFENSE STRATEGIES IN TAX CRIMES
TAX REGULARIZATION AS EXEMPTION
Article 305.4 of the Criminal Code establishes that anyone who regularizes their tax situation before being notified of the commencement of inspection proceedings or before the Public Prosecutor, State Attorney or Social Security Attorney files a complaint or criminal charge is exempt from penalty. Regularization involves the acknowledgment and full payment of the tax debt, including interest. This is the most effective solution when acted upon in time.
CHALLENGING THE DEFRAUDED AMOUNT
The amount of €120,000 is not merely administrative data: it must be proven by the prosecution using criminal criteria, not merely fiscal ones. The defense can challenge the calculation method used by the AEAT, question the tax base utilized, deduct expenses not included in the administrative assessment, and prove compensation of negative bases from previous years. A final amount below the legal threshold implies the criminal atypicality of the act.
STATUTE OF LIMITATIONS FOR TAX CRIMES
The basic tax crime (art. 305 CP) has a statute of limitations of 5 years; the aggravated type (art. 305 bis), 10 years. The calculation of the statute of limitations is complex when inspection proceedings, interruptions of the term, or paralyzation of the procedure are involved. A technical defense exhaustively reviews the dates to determine if the criminal action has prescribed.
MISTAKE OF FACT VS. FRAUDULENT INTENT
Tax crime is an intentional crime: it requires knowledge and intent to evade payment. Calculation errors, interpretative discrepancies in tax matters, different accounting criteria applied in good faith, or erroneous instructions from the tax advisor can constitute a mistake of fact (art. 14 CP) that excludes criminal liability. The distinction between intent, negligence, and error is one of the central axes of defense in these cases.
DIRECTOR LIABILITY VS. CORPORATE LIABILITY
Legal entities do not bear criminal responsibility for tax crimes with imprisonment: personal liability falls on the natural persons who made the decisions (directors, agents, financial officers). The defense analyzes the actual distribution of functions, tax compliance protocols, and real access to accounting information to delimit or exclude the individual responsibility of the defendant.
TAXPAYER RIGHTS BEFORE AEAT INSPECTION
During a tax inspection, the taxpayer has the right to be assisted by counsel, not to testify against themselves, and not to provide documentation that could harm them in a subsequent criminal proceeding. Once the AEAT refers the case to the Prosecutor’s Office, criminal procedural mechanisms take precedence. Coordination between administrative and criminal defense from the first moment is key to protecting the rights of the person under investigation.
Frequently asked questions about crimes against the Public Treasury
The most common questions we receive from those facing investigation for tax crimes. If your situation is not reflected here, contact us directly for a personalized analysis of your case.
From what amount is tax fraud considered a criminal offense?
The criminal threshold is set at 120,000 euros per tax and fiscal year. If the defrauded amount does not reach this figure, the conduct is sanctioned solely through administrative channels by the AEAT. If it exceeds 600,000 euros, the aggravated type of art. 305 bis CP applies, with more severe penalties and a statute of limitations of 10 years instead of 5.
Does paying the debt before trial eliminate the penalty?
Not necessarily. Payment of the tax debt after criminal proceedings have begun may be considered as a mitigating factor for damage repair (art. 21.5 CP), but it does not extinguish criminal liability. The exemption from penalty only operates if regularization occurs before the AEAT initiates verification procedures or before the Public Prosecutor’s Office or State Attorney’s Office files a complaint or criminal charge.
What is tax regularization and how does it function as an exemption?
Tax regularization is the truthful declaration and full payment of the tax debt —including late payment interest— before criminal proceedings are formally initiated. Art. 305.4 CP recognizes it as a cause for exemption from penalty (absolute excuse). It requires acting before the AEAT notifies the start of inspection or before a criminal complaint is filed. It is the most effective tool when acting early.
Can an error in the tax return be a crime?
No. Tax fraud requires intent: knowledge that one is defrauding and the will to do so. A calculation error, a disagreement with the AEAT on the interpretation of a tax regulation, or erroneous advice from a tax advisor may constitute a mistake of fact (art. 14 CP) that excludes criminal liability. The distinction between intent and error is often the central focus of the defense in these proceedings.
Who is criminally liable in a company: the director or the corporation?
Prison sentences can only be imposed on natural persons. In the corporate context, those who have made the relevant decisions are criminally liable: typically the managing director, the financial director, or the authorized representative with tax decision-making capacity. The company may be sentenced to fines and loss of public aid, but not to prison. The defense must precisely analyze the actual distribution of functions and effective access to accounting information to correctly delimit individual liability.
Why choose Víctor Ávila as your tax crimes attorney in Madrid
Cases involving crimes against the Public Treasury require a defense that combines criminal law knowledge with a solid understanding of Tax Law. It is not enough to know the Criminal Code: it is essential to understand how the AEAT operates, how defrauded amounts are calculated, and what margin exists to challenge administrative assessments in criminal proceedings.
In our firm we undertake the defense from the moment a tax inspection begins or criminal investigation becomes known, coordinating strategy in both proceedings to maximize the possibilities of acquittal or sentence reduction. We work with tax experts, forensic auditors and accounting specialists when case complexity requires it.
- Immediate analysis of viability of tax regularization as absolute defense
- Technical review of assessment made by AEAT and challenge of the amount
- Coordinated defense in administrative and criminal proceedings from the outset
- Protection of rights during inspection: right against self-incrimination, legal assistance, appeals
- Experience in criminal proceedings for high-amount tax fraud and aggravated offenses
If you face a serious inspection or charges for crimes against the Public Treasury, contact our criminal law firm in Madrid. We will evaluate your tax exposure and design a tailored defense strategy.
Request a consultation with a criminal tax attorney in Madrid
We will study your case and tell you exactly what you are facing.
OUR BLOG
Articles on economic crimes, tax fraud and criminal tax defense written by our team of criminal defense attorneys.
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