Índice
He tax offense it is committed when the Social Security or Treasury is defrauded for more than 120,000 euros, either by action or omission. This crime is considered as causing significant property damage through deception against the Treasury.
The first key to defending a tax offense is that the advice and assistance of a legal professional specialized in tax law is required. Which must be requested after an inspection of the Tax Agency and the proceedings are present to the Prosecutor's Office to initiate a complaint against the taxpayer for tax crime.
What is tax crime?
This crime is committed against the public estate, local, autonomous, state, regional, local and European, The action consists of defrauding and causing patrimonial damage through deception which is done by omission and by action.
He tax offense It is regulated in Book II Title XIV called Crimes against the Public Treasury and Social Security. In articles 305 and 305 bis of the Penal Code, which establish the punishments for those who commit this crime.
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The law establishes that for tax fraud to be considered a crime, it must be intentional, which means that there must be the will to defraud. The crime can be committed by concealment or by enjoying returns or adjudication of tax benefits that do not correspond or by the deduction of falsified expenses.
He tax offense It can be of two types:
Attenuated
When the taxpayer acknowledges that he has committed illegal acts and pays the debt within two months of receiving the court summons as investigated. In the case of the participants in the crime who are not the investigated taxpayer, they can mitigate their own sentence when they collaborate with the investigation.
Aggravated
He tax offense It is considered aggravated when the amount defrauded exceeds 600,000 euros and has been committed by a criminal organization. In addition, to commit the crime, instruments must have been used that have obscured the amount defrauded.
The cause of the crime must have front men, accounts in tax havens or fraudulent corporate networks.
The person who commits a tax crime can always be exempted if he pays his debts voluntarily before an inspection is initiated.
What is the penalty for a tax crime?
The penalty for tax offense It can be from 1 to 5 years in prison, in addition to a fine that can be up to six times the amount defrauded. This is established in article 305 of the penal code.
The penalized taxpayer can also be punished with the loss of tax benefits that may correspond to him. Like any deduction from the Treasury with which you can save on taxes.
The fraudster must pay the total amount of the different taxes that he is obliged to present. Therefore, you will not have the possibility of deducting Corporate Tax, VAT or Personal Income Tax.
Procedure for defense of a tax offense
In a proceeding for the defense of a tax offense The State attorney and the Prosecutor's Office participate to defend the interests of the Tax Agency. This will be done with the documents and reports prepared by the Treasury inspectors and the other officials of the State Tax Administration Agency.
It is important that the taxpayer knows that the Examining Judges from the outset seem credible to take the matter to trial. When accused taxpayers find themselves in this situation, they raise the possibility of reaching an agreement with the Tax Agency and the Prosecutor.
The agreement usually involves the payment of large amounts of money to the Treasury in exchange for a minimum penalty and avoidance of prison. In case of not reaching any agreement, there are many things that can be done defense of a tax crime. Among them are the following:
team for defense
For the procedure to be successful, it must be carried out by a team of professionals specialized in the tax area. Who know the different laws, regulations, regulations and resolutions that regulate the inspection processes carried out by the Treasury.
Analysis
The team of professionals to plan the strategies that they will use in the defense must carry out an analysis of the inspection process carried out by Tax authorities. In the analysis, it must be determined for what purpose the inspection was carried out, in which administrative procedures the inspection was based.
This will allow you to detect annulments, defects and expiration to support the criminal defense for the crime for which the taxpayer is accused. The next thing is to analyze the limit established to commit a tax crime.
For these cases, a detailed analysis is carried out of all the elements that for the Treasury inspectors suppose the existence of tax fraud. Why, due to the deductible of a certain expense, the amount defrauded may be less than the limit of 120,000 euros.
This would result in the matter ceasing to be a tax crime to become an administrative offence.
Create doubt in the judge
This can be done in the investigation phase or in the oral trial phase, with the analysis carried out. In addition, it must be done based on the different criteria used in the interpretation of the fiscal norm that can be supported by the taxpayer and the Treasury inspectors.
The doubt created in the judge by the different interpretations of the fiscal norm will have better effects in the oral trial phase. Because the principle in dubio pro reo is applied as a rule in the trial.
Which means that a prudent doubt has been generated in the Judge about what is the reasonable interpretation that should be given to the fiscal norm. In these cases, the criminal judge is obliged to acquit the accused.
Make yourself understood and know how to explain
In trials for tax crimes, the judge is generally a specialist in criminal law, not in tax law. For this reason it is very important to present the judgment in terms understandable to a person, understandable presentations must be made, well-constructed arguments that the Judge can easily recognize.
