A tax offense is incurred who defrauds the state, autonomous or local Treasury, either evading payment of taxes of amounts withheld or that should have been retained, revenue account or enjoying undue tax benefits or reimbursements, always that the amount of the withheld defrauded quota, unpaid payments of either profits or returns obtained exceeds fifteen million pesetas.
To determine the amount of the defrauded quota, in the periodic tax declaration or statements, it is defrauded in each tax period and if the amount defrauded were in less than twelve months, referring to the natural calendar year.
In other words, during the payment of periodic taxes such as income tax, IS, IBI (property tax), etc... The amount of fifteen million pesetas is referred to each tax debt, settlement or self-assessment. In the periodic instant tax declaration such as VAT, fees that have been defrauded in statements over for a calendar year are added up. And finally, in the remaining cases (ITP (The ITP is the English equivalent of land purchase tax), AJD, ISD) the aforementioned amount of quota must reach each taxable event that is produced.
However, not every action or omission of the taxpayer, that results in non-payment of a tax revenue or improper enjoyment of a tax benefit over fifteen million pesetas, implies the existence of a tax offense.
To be able to speak of tax crime, it also needs fraudulent intent, i.e. the mind or will to commit fraud.
The jurisprudence has specified that the fraud must include "knowledge of tax duties whose breach gave rise to the fraud and awareness of the amount of the latter" as well as the intent to defraud. Therefore, the error on any of these elements (type error or mistake on the tax law), albeit beatable (surmountable) excludes fraud and, consequently, the very existence of the crime.
In contrast, the error of prohibition (for example, the person committing, even knowing that their behaviour is contrary to tax law, mistakenly thinks that his conduct is not criminally punishable) only involves the reduction of the penalty, but does not exclude the existence of the crime.
The main penalties inherent to tax offenses are imprisonment for a period of time ranging between six months and one day and six years (minor sentence) and pecuniary penalty to six times of the amount defrauded. The minor imprisonment also means the additional penalty of a suspension of any charge, profession or occupation and right to vote, for the duration of the sentence. The convicted of tax offenses loses the right of obtaining public funding or official credit and the right to enjoy benefits or tax incentives, for a period of three to six years.
The penalties mentioned are applied to a maximum degree when the fraud is committed in any of the following circumstances:
a) The use of intermediaries so that it hides the true identity of the taxpayer.
b) The special importance and seriousness of the fraud, in response to the amount defrauded, or the existence of an organizational structure that affects or may affect a plurality of taxpayers.