When is it considered a tax offense?

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A tax offence against the Public Treasury is committed when a person, by act or omission, defrauds the State, an Autonomous Community, a province with its own tax system or a local authority by evading taxes, withheld amounts or payments on account, or by improperly obtaining refunds or tax benefits, and the amount exceeds €120,000. The general offence under Article 305 of the Spanish Criminal Code requires an amount greater than €120,000; exactly €120,000 does not meet that threshold.

The calculation depends on the tax and the relevant period. For periodic taxes, withholdings, payments on account or refunds, the amount is assessed for each tax or filing period; where that period is shorter than twelve months, the calendar year is used. In other cases, the amount is assessed for each taxable event and separate taxable concept. The law provides a special rule on when prosecution may begin for fraud committed within a criminal organisation or group, or through an apparent economic activity that is not actually carried on. Filing a tax return does not by itself rule out fraud if other facts establish it.

The amount alone does not establish criminal liability: the fraudulent conduct and the other elements of the offence must be proved in the specific case. The general offence carries imprisonment from one to five years and a fine of one to six times the amount, as well as loss of eligibility for public grants or aid and tax or Social Security benefits or incentives for three to six years. Article 305 bis sets out aggravated cases, including an amount exceeding €600,000 and certain cases involving a criminal organisation or particular forms of concealment; those cases carry higher penalties.

A criminally effective regularisation may be possible if the taxpayer fully acknowledges and pays the debt before being notified that tax audit or investigation proceedings to determine it have begun. If no such proceedings have begun, payment must precede the procedural milestones specified in Article 305(4). The timing and requirements depend on the facts and notices received.

Legislation: Articles 305 and 305 bis of the Spanish Criminal Code: https://www.boe.es/buscar/act.php?id=BOE-A-1995-25444&lang=es&p=20260409...