Under Investigation for Tax Fraud? Criminal Defense Help

Facing a complaint or criminal investigation for crimes against the Public Treasury is one of the most delicate situations any taxpayer can face. The combination of administrative pressure, the technical complexity of tax law, and the risk of imprisonment makes this type of proceeding one of the harshest in Spanish criminal law.

What is a crime against the Public Treasury?

Crimes against the Public Treasury regulated in articles 305 to 310 of the Criminal Code, within Title XIV, The tax offense sanctions those who defraud the Public Treasury or Social Security by exceeding certain thresholds. This is not a simple administrative sanction: we are talking about willful conduct, with the intention to evade taxes, obtain improper refunds, or apply tax benefits fraudulently.

The protected legal interest is the economic interest of the State and compliance with the constitutional duty to contribute to public expenditure (art. 31.1 CE).

What conduct constitutes a tax crime?

Article 305 of the Criminal Code establishes that anyone who commits a crime against the Public Treasury is one who:

«By action or omission, defrauds the Public Treasury, evading the payment of taxes, withheld amounts or amounts that should have been withheld, obtaining improper refunds or enjoying tax benefits improperly«.

What is the penalty for a tax crime?

The basic penalty for this crime is:

• Imprisonment from one to five years.
• Fine from one to six times the defrauded amount.
• Loss of the possibility to obtain subsidies or tax benefits for a period of three to six years.

If certain aggravating circumstances occur (criminal organization, use of tax havens, fraud exceeding €600,000…), the aggravated forms of article 305 bis apply, with penalties that can reach six years of imprisonment.

What if the fraud is against Social Security?

Article 307 CP regulates crimes against Social Security. Here, typical conduct includes non-payment of employee contributions, fraudulent obtaining of benefits, or simulation of employment relationships. It also requires that the amount exceed €120,000.

The penalties are similar to those in article 305.

When is there criminal liability for companies?

Since the reform by LO 5/2010, legal entities can be liable for tax crimes under article 31 bis of the Criminal Code. In these cases, it is required that the crime was committed for the benefit of the company by its legal representatives or employees with

What defense options exist?

Each case must be analyzed with maximum technical precision. The most common defense strategies include:

• Voluntary regularization: if the taxpayer pays before knowing they are being criminally investigated, they are exempt from liability (art. 305.4 CP).
• Lack of intent: the crime requires intent to defraud. If error, ignorance, or reasonable interpretation is proven, there is no crime.
• Absence of simulation: in complex tax planning cases, the key is often demonstrating that no simulation existed.
• Statute of limitations: the crime prescribes after five years (10 in aggravated cases), counted from the last act with tax effect.

What if there is already a tax inspection underway?

Many clients contact us during a tax audit. At this point, it is essential to act with intelligence and prudence. The recommendation is:

• Do not hide information, but do not self-incriminate either.
• Request independent expert report if there are differences in accounting or tax interpretation.
• Check if complete regularization is possible before a criminal complaint is filed.

What are the requirements for crimes against the Public Treasury?

The Supreme Court has clearly defined the requirements for tax crimes. According to established jurisprudence:

• An administrative infraction is not sufficient.
• Specific intent is essential: knowledge and willingness to defraud.
• There is no crime without a conscious act of simulation or deception.

Is it possible to reduce the sentence?

Yes. Article 30