Tax Crime & Money Laundering: Expert Criminal Defense

You are under investigation for tax fraud and money laundering and you are not an isolated case: every year the machinery launches hundreds of proceedings and thousands of alerts. In 2023 alone, the Prosecutor’s Office recorded 146 investigation proceedings for crimes against the Public Treasury and the AEAT referred 157 criminal cases (most with inspection reports), with €849.5 million in reported debt; there were 139 final judgments and 113 convictions (81.29%). At the same time, SEPBLAC analyzed 13,855 suspicious activity reports and disseminated 10,007 intelligence reports to authorities (of which, 97 directly to judicial bodies and prosecutor’s offices).

What is tax fraud and what do we understand by defrauded amount?

Typical configuration of tax fraud

Article 305 of the Criminal Code sanctions those who, by action or omission, defraud the Public Treasury through evasion of tax payments, improper obtaining of refunds or irregular enjoyment of tax benefits. For a crime to exist, three elements must concur:

1. Quantitative objective element: the defrauded amount must exceed 120,000 euros for each tax period and tax.
2. Qualitative objective element: the defraudation must be carried out through fraudulent scheme. Mere non-payment without

Supreme Court jurisprudence on tax-related self-laundering

Tax fraud as the basis for money laundering

The Supreme Court has affirmed in a consolidated manner that tax fraud can be considered a predicate offense for money laundering when two essential elements concur: a defrauded amount exceeding 120,000 euros (art. 305 CP) and subsequent acts aimed at concealing, transforming or covering up the criminal origin of the funds obtained. This thesis, debated for years, was definitively settled by the reform of LO 5/2010, which expressly introduced self-laundering in article 301 of the Criminal Code.

Jurisprudential criteria for establishing money laundering

For a money laundering charge derived from tax fraud to succeed, jurisprudence requires clear evidence, not mere suspicions. Among the most recurring:

• Unjustified increases in assets after the commission of the tax crime.
• Absence of lawful activity that justifies the funds or assets.
• Concealment operations: use of front persons, shell companies, cash transfers or transfers to tax havens.
• Purpose of concealment, not personal consumption.

The Supreme Court has been categorical: money laundering is not a «crime of suspicion,» so it is not enough

How to defend yourself if you have been accused of tax fraud and money laundering

Criminal defense strategies in tax fraud and money laundering cases

Defense in these proceedings requires technical specialization in both criminal law and tax law. Some common approaches are:

1. Challenge the defrauded amount: demand accuracy in calculating the amount and verify if the 120,000 euro threshold is actually exceeded.
2. Denial of intent: demonstrate excusable error, absence of fraudulent intent or delegation to third parties without knowledge of the scheme.
3. Attack the proof of criminal origin: remember that suspicion is not enough; the prosecution must prove the connection between the defrauded amount and the allegedly laundered funds.
4. Questioning concealment acts: show that the operations were for ordinary consumption or had a purpose other than concealment.
5. Statute of limitations defense: if the administrative action is time-barred (four years under the LGT), the criminal action cannot succeed, according to recent jurisprudence of the Supreme Court Full Court.

What to do if you have been reported for tax fraud and money laundering?

The combination of tax fraud and money laundering presents some of the most complex challenges in Spanish economic criminal law. The line separating tax fraud from money laundering is narrow and jurisprudence requires precision in proving the amount, demonstrating intent and identifying concealment acts.