The courts once again amend the Treasury, acquitting businessmen fined for tax fraud

The former director of Hacienda Ignacio Ruiz-Jarabo warns that the system that gives bonuses to inspectors is "perverse"

MADRID, 1 Ene. (EUROPA PRESS) -

The Spanish courts have had to amend the plan to the Tax Agency on several occasions in 2022 as a result of claims for fines and penalties for fraud by businessmen and taxpayers. To the list of cases lost by the Treasury in 2021, among which was that of the soccer player Gerard Piqué, the actress Paz Vega or the Galician businessman Amancio Ortega, those of Sito Pons, the businessman José María Aristrain or the former prosecutor Emilio Valerio are now added .

One of the latest cases that has come to light is that of the former motorcycle racer and two-time 250cc world champion Sito Pons. The Court of Barcelona acquitted him at the end of December of the six tax crimes of which the Prosecutor's Office and the Spanish tax agency accused him, for which he faced 24 years in prison.

The court declared proven in the ruling that, in the years between 2010 and 2014, Pons --director of the Pons Racing team-- "spent more than 200 days traveling around circuits throughout the world and was not a tax resident in Spain, but in Monaco (2010 to 2012) and the United Kingdom (2013 to 2014)". The sentence also stated that the athlete "as a taxpayer, has declared income derived from work for someone else and self-employed, as well as interest earned."

Likewise, the magistrates verified that most of Pons' economic interests and financial assets and the core of its economic activity were concentrated and located outside Spanish territory, except for some properties located in Spain.

A similar case is that of the industrialist José María Aristrain, whom the Provincial Court of Madrid acquitted in January 2022 of the crimes of tax fraud of which he had been accused by the Madrid Prosecutor's Office for defrauding the Public Treasury of 211 million euros during fiscal years from 2005 to 2009.

In a sentence, to which Europa Press had access, the magistrates agreed to exonerate the tycoon from fifteen tax offenses for which the Public Ministry requested 64 years in prison. And they did it before the doubts of the court when considering "insufficient" the tests carried out to demonstrate the fraud.

The Prosecutor's Office demanded from the industrialist the payment, as civil liability, of more than 210 million euros and asked that a fine of around 1,190 million euros be imposed.

But the magistrates decided to acquit him based on the principle of 'in dubio pro reo' because they concluded that the evidence provided was "insufficient" and did not allow it to be proven that the defendant simulated a transfer of his habitual residence during the years 2005 to 2009, nor that the effective management of the company was in Spain.

Therefore, they maintained, "all factual basis of the crimes of tax fraud that support the accusation is lost." "If it has not been proven that he was a resident in Spain, nor that he ran said company from Madrid, there is no reason to consider that he was obliged to pay taxes due to such taxes," the ruling states.

Another of the resolutions against the Treasury, in this case the foral one, is that of the Provincial Court of Navarra, which acquitted the former prosecutor Emilio Valerio, accused of fraud against the Treasury, on the understanding that there was insufficient evidence to convict him.

The Prosecutor's Office requested for him a sentence of 38 years in prison and a fine of 4.5 million euros for the alleged falsification of invoices to obtain the "undue return" of the Value Added Tax (VAT) through his companies.

In a judgment of the Superior Court of Justice of Navarra (TSJN), collected by Europa Press, it was explained that it had not been proven that the former prosecutor acting in his double capacity as partner and royal administrator of several companies "devised a plot consisting of making of mendacious invoices in which non-existent deliveries of goods and provision of services from other companies appeared" in order to thus achieve the undue refund of VAT.

In addition, the ruling indicated that it was not proven that these invoices were false, nor that they did not respond to a specific provision of goods and services, "nor that with this the undue return by the foral treasury was achieved" of certain amounts for value of more than four million.

It so happens that, in this specific case, the person who carried out the expert opinion on the ex-prosecutor's companies is the person who was director of the Tax Agency between 1998 and 2001, Ignacio Ruiz-Jarabo. The senior civil servant, already retired and author of the book 'Taxes or freedom', will participate this January in the European Parliament in the presentation of a documentary and will make a speech within the framework of the event 'Can the Spanish Treasury destroy the State of law?' to denounce the abuses of the Tax Agency.

In conversation with Europa Press, Ruiz-Jarabo has advanced that in his presentation he will state that the Spanish legal system is unbalanced and the State enjoys many powers in its favor that it does not use in a "rational and moderate" way. What's more, he has added that far from making a "tempered" use of these "oversized" powers, he uses them "by slitting the throat" in the case of the Treasury.

In Ruiz-Jarabo's opinion, this causes that in cases in which the tax authorities lose in court, the resolutions arrive 5 or 6 years after the start of the proceedings, which usually include asset seizures, which means that the damage caused be irreparable.

In addition, he has regretted that there are no negative consequences for inspectors, the Prosecutor's Office or the State Attorney's Office when the inspections by the Tax Agency fail, and he understands that they should respond when unfounded damage is caused.

What's more, he has denounced that far from being punished, they usually "get off scot-free, if not benefited by a global bonus" that inspectors usually receive for all their actions. "This is perverse and diabolical because you charge if you get more from the taxpayer," she emphasized, adding that it generates defenselessness and legal uncertainty, especially for businessmen.

Although the data is not from this 2022, the last known report of the Economic-Administrative courts (2020), attached to the Treasury, stated that the tax authorities had lost half of the lawsuits against taxpayers. Thus, they won 45.26 percent of the cases that had reached that instance, while in 46.96 percent of the claims, the ruling had fallen on the side of the Treasury.

On the other hand, in the field of Community Justice, the opinion of the Court of Justice of the European Union (CJEU) was known in January 2022, which declared the system of sanctions that the Treasury applies to taxpayers who do not declare correctly and on time illegal. their property and assets abroad, concluding that it is a "disproportionate" measure that contravenes EU law.