JOHN CARLOS I

KING OF SPAIN

To all who present it and understand,

Sabed: That the General Courts have approved and I come to sanction the following Organic Law:

EXPLANATORY STATEMENT

The figure of the tax offence introduced in Article 319 of the Criminal Code, by Law 50/1977 of 14 November, replacing the old crime of fraudulent concealment of goods or industry, has required for its full consolidation in our order to overcome the initial defects of its construction and the formation of a jurisprudential doctrine elaborated by its application by the Courts.

At present, in order for the regulation of this figure to produce the desired fruits within the anti-fraud policy, a number of regulatory changes must be made which, on the one hand, affect the This is a very serious matter, and I would like to make a point of order.

Among the amendments of the criminal type, it is particularly important that the regulation expressly rules the avoidance of the payment of retentions and income on account of in-kind remuneration as an integral element of the type This is a crime, given the importance of these illegal activities and their importance in the tax system.

Likewise, it is absolutely necessary to determine the relationship between the tax regularization, expressly authorized by article 61.2 of the General Tax Law, and the tax crime, which implies the absence of of criminal liability for such conduct whenever they are carried out spontaneously, extending such exemption to possible accounting irregularities or other instrumental falsehoods in which the subject could have incurred in connection with the Tax liability for regularisation. This regulation is intended to safeguard the voluntary fulfilment of its obligations by taxpayers. Likewise, this regulation is also necessary to fully integrate the regularisations authorized by Law 18/1991 of 6 June of the Tax on the Income of Physical Persons in the whole of the legal system. As regards how many other persons may be liable for the offences, the general rules of the Criminal Code will apply, in accordance with Title II of the First Book of this Code.

On the other hand, economic and political reasons support the opportunity to update the commission's key determinants of the crime of fraud in grants, as referred to in Article 350, and the accounting crime of Article 350 bis.

in addition to this, the need to sufficiently protect the heritage of social security, in order to enable them to fulfil their institutional functions, advises the protection of this legal system by means of introduction of a figure of great similarity with tax crime, the crime against social security.

in fact, crimes against social security are, in principle, comparable to crimes against the public finances in the sense that, when it exists, it is also referred to as resources. of state ownership in the last term.

Further the circumvention of the payment of the Social Security contributions, within the economic crimes, constitutes a specific crime against the patrimony of the same characterized, in relation to other modalities of action against this This is because it is a special protection for the General Treasury of Social Security when it is left in a situation of ignorance of the existence of the facts underlying the birth and the amount of the debt. for with Social Security, either of the totality of the same-total circumvention-or of part of it (a) to be determined voluntarily by a lower amount than due-partial avoidance-of having correctly applied, in one and another case, the rules governing the contribution to social security.

Special relevance acquires, in the context of the fight against tax fraud and against Social Security, the creation in both criminal figures of qualified types by the concurrency of circumstances that denote a special the intention to defraud and to hinder the investigation of the facts constituting the offence or which are of particular importance and seriousness in the amount of the fraud or the existence of an organisational structure for fraud.

Single item. Amendment of Title VI of the LIBO II of the Criminal Code.

Title VI of Book II of the Criminal Code, under the heading 'Offences against the Public Finance and Social Security', shall comprise Articles 349, 349 bis, 350 and 350a, with the following wording:

" Article 349.

1. The fact that, by means of action or omission, it will defraud the State Public Finance, autonomic, foral or local, circumventing the payment of taxes, amounts withheld or that would have been due to withhold or income to account of in-kind salaries, obtaining (i) the right to return or enjoy tax benefits in the same way, provided that the amount of the fee is not paid, the amount not entered in the withholding tax or income on account or the tax returns or profits unduly obtained or enjoyed exceeds 15,000,000 pesetas, will be punished with the lesser prison sentence and a fine of the same amount of the said amount.

The penalties referred to in the preceding paragraph shall be applied to their maximum extent when the fraud is committed in one of the following circumstances:

(a) The use of persons or persons involved in such a way as to conceal the identity of the true tax force.

(b) The special importance and gravity of the fraud, taking into account the amount of the defrauded or the existence of an organizational structure that affects or may affect a plurality of tax obligations. In addition to the penalties identified, the person responsible shall be liable for the loss of the possibility of obtaining grants or public aid and of the right to benefit from tax or social security benefits or incentives for a period of three to six years.

2. For the purposes of determining the amount referred to in the preceding paragraph, if it is a question of taxation, withholding, income on account or refunds, newspapers or periodic declarations, it shall be liable to the defraud of each tax or declaration and, if they are less than 12 months, the amount of the defrauded shall be the calendar year. In other cases, the amount shall be understood as referring to each of the various concepts for which a taxable event is liable to be settled.

3. It shall be exempt from criminal liability to regulate its tax situation in relation to the debts referred to in paragraph 1 of this Article, before it has been notified by the Tax Administration of the initiation of evidence of the determination of the tax debts to be regulated or, in the event that such proceedings have not taken place, before the Public Prosecutor's Office, the State Advocate or the representative Procedural law of the Autonomous, Foral or Local Administration in which it is dealt with, disputes or complaints against This is the case, or when the Public Ministry or the Judge Instructor performs actions that allow him to have formal knowledge of the initiation of proceedings.

The exemption from criminal liability referred to in the preceding paragraph will also be subject to such a subject by possible accounting irregularities or other instrumental falsehoods which, exclusively in relation to the debt The tax system may have been subject to the regularisation of its tax situation.

Article 349 bis.

1. The penalties referred to in Article 349 (1) of this Code shall be applicable to which, by reason of action or omission, it shall defraud the Social Security in order to circumvent the payment of the quotas and the concepts of joint recovery, refunds of the same or to enjoy deductions for any concept likewise improperly and with fraudulent encouragement, provided that the amount of the fees defrauded or the refunds or intakes exceeds 15,000,000 of pesetas.

The penalties referred to in the preceding paragraph shall be applied to their maximum extent when the fraud is committed in one of the following circumstances:

(a) The use of the person or persons involved in such a way as to conceal the identity of the real person in the face of social security.

(b) The special importance and gravity of the fraud in the light of the amount of the defrauded or the existence of an organisational structure affecting or liable to affect a plurality of persons who are obliged to the social security system.

2. For the purposes of determining the amount referred to in the preceding paragraph, it shall be the case of any liquidation, refund or deduction, with reference to the calendar year of the amount of the defrauded when those amounts correspond to a period of less than twelve months.

3. It shall be exempt from criminal liability to regulate its situation with regard to social security, in relation to the debts referred to in paragraph 1 of this Article, before it has been notified of the initiation of inspections. (a) to the determination of these debts or, in the event that such proceedings have not been taken, before the Public Ministry or the Social Security Office intervenes or complaints against the addressee.

The exemption from criminal liability referred to in the preceding paragraph will also be subject to such a subject by the possible instrumental falsehoods which, exclusively in relation to the debt subject to regularisation, the same he may have committed prior to the regularisation of his situation.

Article 350.

1. He who obtained a grant, relief or assistance from the Public Administrations of more than 10,000,000 pesetas, distorting the conditions required for his concession or concealing those that would have prevented it, will be punished with the prison sentence. less and fine from the same to the sextuplo of its amount.

2. The fact that, in the course of an activity supported by public authorities, the amount of which exceeds 10,000,000 pesetas, does not comply with the conditions laid down for the purposes for which the subsidy was granted, will be punished with the lesser prison sentence and with a fine of the same.

3. In addition to the penalties identified, the person responsible shall be liable, on an ancillary basis, for the loss of the possibility of obtaining grants or public aid and of the right to enjoy tax or social security benefits or incentives during a period from three to six years.

4. It shall be exempt from criminal liability in respect of the grants, relief or aid referred to in paragraphs 1 and 2 of this Article, which reintegrates the amounts received, increased in an annual interest equivalent to the interest of the money increased by two percentage points, from the moment it was received, before the initiation of inspection or control measures in relation to those grants, relief or aid or, in the case of the case, has been notified to it. that such action had not been taken, before the Public Ministry, the Advocate General the State or the representative of the Autonomous or Local Administration in question is acting as a complaint or complaint against the person addressed.

The exemption from criminal liability referred to in the preceding paragraph will also be subject to such a subject by the possible instrumental falsehoods which, exclusively in relation to the debt subject to regularisation, the same he may have committed prior to the regularisation of his situation.

Article 350a.

He will be punished with the highest arrest penalty and fine of 1,500,000 to 3,000,000 pesetas that being obligated by the Tax Law to carry commercial accounting or books or tax records:

(a) I absolutely do not comply with this obligation under the direct estimate of tax bases.

b) Carry out different accounts which, referring to the same economic activity and exercise, conceal or simulate the true situation of the company.

(c) You have not entered into the required books business, acts, transactions or, in general, economic transactions, or you have recorded them with figures other than true.

(d) You have practised in the compulsory books fictitious accounting records.

The consideration as a crime of the factual assumptions, as referred to in (c) and (d) above, will require that the tax returns have been omitted or that the tax returns are reflected in their false accounting and that the amount, in more or less, of the charges or credits omitted or falsified exceeds, without arithmetic compensation between them, 30,000,000 pesetas for each financial year. "

Additional disposition first. Tax regularization authorized by Law 18/1991 of 6 June.

Will be exempt from criminal liability who have signed Special Public Debt in the terms, deadlines and conditions laid down in the additional provision of Law 18/1991 of 6 June 1991, and apply their price cash for purchase, as provided for in that provision, for the reduction of undeclared net income or assets in relation to the tax liabilities arising from such income or assets.

They will also be exempt from criminal liability, in relation to the debts mentioned above, who would have regularized their tax situation in accordance with the provisions of the additional 14 of the Law. 18/1991, of 6 June.

The exemption from criminal liability referred to in the preceding paragraphs shall also reach those subjects by possible accounting irregularities or other instrumental falsehoods which, exclusively in relation to the debt In the case of the tax system, they may have been subject to the regularisation of their tax situation.

Additional provision second.

The exemption from criminal liability, referred to in the second paragraphs of Articles 349.3, 349 bis.3, and 350.4 of this Law, will also be applicable even if the debts to be regularised are lower than the amounts set out in the above Articles.

Single end disposition. Entry into force.

This Law shall enter into force on the day following that of its publication in the "Official Gazette of the State".

Therefore,

I command all Spaniards, individuals and authorities to keep and keep this Organic Law.

Madrid, June 29, 1995.

JOHN CARLOS R.

The President of the Government,

FELIPE GONZÁLEZ MARQUEZ