Article 305 bis Spanish Criminal Code: aggravated tax fraud

Article 305 bis of the Spanish Criminal Code aggravates tax fraud where the sum evaded exceeds 600,000 euros, the fraud is committed within a criminal organisation or group, or interposed persons or entities, fiduciary instruments or tax havens are used to conceal the taxpayer’s identity, the amount evaded or their assets. It raises the penalty and, with it, the limitation period to ten years.

Wording of Article 305 bis of the Spanish Criminal Code

Elements of the offence

1. A tax offence under Article 305 with all its elements, including a sum above 120,000 euros.
2. One of the three listed circumstances: sum above 600,000 euros, criminal organisation or group, or concealment structures.
3. In the third, the actual capacity of the interposition or nil-taxation territory to hinder identification of the taxpayer, the amount or the assets.
4. The full referral to Article 305, including regularisation as a ground of exemption.

Defence strategy

Fighting the quota. The sum evaded is an element of the offence and its calculation admits counter-expertise: timing rules, deductible expenses and the classification of transactions can bring the quota under the 600,000-euro threshold or under the basic 120,000.

Contesting the structure’s purpose. Not every interposed company or foreign account triggers the circumstance: its concrete capacity to conceal must be proved. Structures with real economic substance and lawful purpose fall outside.

Regularising in time. Full and truthful regularisation before notice of inspection, complaint or judicial attribution exempts from liability in the aggravated form too, through the referral to Article 305(4).

Watching the split limitation periods. The aggravated offence prescribes at ten years, the basic one at five; losing the aggravation often drags the whole case into limitation, merging both debates into one.

• Article 305: tax fraud
• Article 570 bis: criminal organisations
• Article 31: acting on behalf of another
• Tax fraud lawyer in Spain

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.