Tax offence. Circumstances for its assessment. Applicable penalties and how to avoid them.
What is a tax crime?
The first thing to be clear about a tax offence (or, as the Criminal Code calls it, “offence against the Public Treasury”) is that it is a crime that cannot be committed by everyone, since it involves having defrauded the Treasury (whether at state, regional, provincial, or local level) of more than €120.000.
What circumstances must exist for a tax offence to be committed?
Apart from causing the Tax Administration a financial damage valued at more than €120.000, article 305 of the Criminal Code requires that the tax offence is caused by any of the following conducts, whether by action or omission:
a. The avoidance of the payment of taxes, amounts withheld or that should have been withheld or payments on account.
b. Obtaining undue refunds.
c. The enjoyment of undue tax benefits.
How is this offence punishable?
It is punishable by a prison sentence of one to five years, depending on the seriousness of the offence, and a fine of one to six times the amount defrauded, in addition to the loss of the possibility of obtaining public subsidies or aid and the right to enjoy tax or Social Security benefits or incentives for a period of three to six years.
However, paragraph 6 of the aforementioned article provides for the possibility of the offender paying the tax debt and judicially acknowledging the facts within two months of being summoned before the court as a defendant, in which case the penalty to be imposed could be reduced by one or two degrees.
This mitigated type would also apply in the event that other participants in the offence, other than the main perpetrator, actively collaborate in obtaining decisive evidence for the identification or capture of other perpetrators, for the complete clarification of the criminal acts or for the investigation of the assets of the taxpayer or of others responsible for the offence.
Finally, article 305 bis of the Criminal Code regulates the aggravated type of this offence and states that it shall be punished with a prison sentence of two to six years and a fine of double to six times the amount of the amount defrauded when the fraud has been committed in any of the following circumstances:
a. The amount of the defrauded quota exceeds €600.000.
b. The fraud has been committed within an organisation or a criminal group.
c. The use of natural or legal persons or interposed unincorporated entities, businesses or fiduciary instruments or tax havens or territories of no taxation hides or hinders the determination of the identity of the taxpayer or of the person responsible for the offence, the determination of the defrauded amount or of the assets of the taxpayer or of the person responsible for the offence.
Is there any possibility of escaping imprisonment for an offence against the tax authorities or social security?
Yes, there is. And it depends on the perpetrator of the offence regularising his tax situation in a timely manner. That is, that he/she has acknowledged and paid the tax debt before any of the following circumstances occur:
a. That the Tax Administration has notified him or her of the initiation of verification or investigation proceedings aimed at determining the tax debt.
b. That, if the actions provided for in the previous section have not taken place, the Public Prosecutor’s Office or the procedural representative of the defrauded Tax Administration files a complaint or accusation against him.
c. That the Public Prosecutor’s Office or the Examining Magistrate carries out actions that allow him to have formal knowledge of the initiation of proceedings for this fraud.
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