Fiscal-tax crime

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Fiscal-tax crime

Criminal conduct contained in the art. 305 Penal Code consists of defrauding, causing property damage, through deception, by action and by omission, to the Public, State, Autonomous, Local or Provincial and European Treasury. The general tax offense, which involves defrauding an amount greater than 120,000 euros and which usually prescribes after 5 years. The aggravated tax crime, which is one that involves an offense for an amount greater than 600,000 euros and that, therefore, implies a prescription of the crime after 10 years.   

The commissive modalities are the following:
  • Avoiding the payment of taxes, amounts withheld or that should have been withheld or income on account The conduct refers to a tax, understood as a generic concept that includes taxes, fees and special contributions. It does not cover interest, surcharges, enforcement costs or tax penalties. 
  • Improperly obtaining returns
  • Enjoy undue tax benefits.
The following elements must be present:
  • The amount defrauded must be greater than 120,000 euros. To determine the amount, these rules will be followed:  
  • In the case of taxes, withholdings, payments on account or returns, periodic or periodic declaration, the defrauded will be applied in each tax or declaration period, and if these are less than twelve months, the amount of the defrauded will refer to the natural year. However, when the fraud is carried out within an organization or criminal group, or by persons or entities that act under the guise of a real economic activity without carrying it out effectively, the crime will be prosecuted at the same time as that the amount of 120,000 euros is reached , regardless of the calendar year.
  • In all other cases, the amount will be understood to refer to each of the different concepts for which a taxable event is subject to liquidation.
  • The tax offense requires that the judges, not the tax administration, set the amount of the tax debt, in order to verify whether it reaches the minimum required to be considered a crime, and must indicate the way in which they did so. 
It will be punished with the following joint penalties:
  • The penalty is imprisonment for one to five years.
  • Fine from both to six times the amount defrauded.
  • Accessory measures. Loss of the possibility of obtaining subsidies or public aid and the right to enjoy benefits or tax incentives or Social Security during the period of three to six years.

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