Accusation of a tax offence: when it is committed and how to defend yourself

Receiving notification that the Tax Agency has filed a criminal complaint generates intense distress. The tax offence has a peculiarity: its commission usually does not involve any act that the perpetrator perceives at the time as clearly criminal, and many accused persons believed that what they were doing was lawful. But when the figures are high and the intent to defraud is established, the result can be a criminal conviction.

Not every tax irregularity is an offence. Article 305 of the Criminal Code establishes that a tax offence is committed by anyone who defrauds the Public Treasury through the evasion of tax payments, undue refunds or other means, provided that the defrauded amount exceeds 120,000 euros. That figure is the threshold separating the administrative infringement from the criminal offence: below it, the Tax Agency processes a penalty file; above it, the irregularity may be an offence. In addition to the threshold, the offence requires intent: the will to defraud. An error in the return or a discrepant interpretation of the regulations may give rise to an administrative penalty, but not necessarily to an offence.

The most frequent forms are the concealment of income, the use of false or inflated invoices to deduct fictitious expenses, VAT fraud, such as carousel fraud, and the interposition of shell companies or structures in tax havens.

The penalties are proportionate to the amount defrauded. For the basic offence, imprisonment of one to five years and a fine of between once and six times the amount, in addition to the loss of the right to obtain subsidies and public contracts. When the amount exceeds 600,000 euros or a criminal organisation is used, the penalties are aggravated.

A fundamental aspect is tax regularisation. Article 305.4 establishes that the taxpayer who regularises their situation before the Administration begins verification actions or before the Public Prosecutor files a complaint is exempt from criminal liability. Regularisation involves declaring the undeclared income and paying the amount with its interest. Those who act in time can completely avoid criminal liability, so it is advisable to consult a lawyer as soon as there are signs of an investigation.

The investigation usually begins in the administrative sphere: if the Tax Agency finds signs of an offence, it files a complaint and the process becomes criminal. Once in the criminal sphere, the matter is no longer resolved simply by paying the debt, although payment may be assessed as a mitigating factor. The person under investigation retains all their procedural rights, including that of not providing documents that may incriminate them once the criminal process has begun.

The most common defence arguments are three: to question the amount of the defraudation calculated by the Agency, since reducing it below 120,000 euros would exclude criminal liability; to attack the subjective element, demonstrating that there was no intent but a good-faith error or a reasonable interpretation of the rule, especially if the advice of tax advisers was followed; and, when it is not possible to avoid conviction, to mitigate the penalty through payment of the debt and the establishment of favourable circumstances. It is also worth knowing that legal persons can also be criminally liable for a tax offence.