Tax litigation in Spain: overview
A Q&A guide to civil and criminal tax litigation in Spain.
This Q&A provides a high level overview of the key practical issues in civil and criminal tax litigation, including: pre-court/pre-tribunal process, trial process, documentary evidence, witness evidence, expert evidence, closing the case in civil and criminal trials, decision, judgment or order, costs, appeals, and recent developments and proposals for reform.
To compare answers across multiple jurisdictions, visit the Tax Litigation: Country Q&A tool.
The Q&A is part of the global guide to tax litigation. For a full list of jurisdictional Q&As visit www.practicallaw.com/taxlitigation-guide.
Overview of tax litigation
Issues subject to tax litigation
The Spanish tax authorities have focused on the following issues in recent years:
Business restructurings that have applied the special tax regime under the Spanish transposition of EU Council Directive 90/434/EEC on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different member states.
The existence of a permanent establishment on Spanish territory of non-resident entities obtaining Spanish-sourced income.
The acquisition of foreign-related companies with funds borrowed from the group, resulting in exempt income at the Spanish tax level (dividends from the acquired foreign company) and deductible expenses (interest paid to the group).
Financial expenses and goodwill depreciation arising on leveraged buyouts.
The return of contributions to non-resident shareholders through share buy-backs involving a capital reduction.
These are normally civil cases. Criminal tax matters in the last few years have been more focused on the non-declaration of income and situations where there exists either a sham of residence or sham contracts. However, in certain cases, the application of anti-abuse measures has resulted in criminal cases.
Civil tax litigation
The following are the principal pieces of legislation governing civil law:
General Tax Law (Ley 58/2003, General Tributaria).
Regulations Developing the General Tax Law on Administrative Review (Real Decreto 520/2005).
Criminal tax litigation
The following are the principal pieces of legislation governing criminal law:
Criminal Code (Ley Orgánica 10/1995, del Código Penal).
Criminal Procedure Law (Real Decreto de 14 de septiembre de 1882, aprobatorio de la Ley de Enjuiciamiento Criminal).
Tax evasion and other criminal tax offences
Tax fraud can be committed by any taxpayer that, by act or omission, defrauds the Treasury (state, regional or local) by:
Avoiding the payment of taxes or amounts withheld (or on amounts that should be withheld).
Obtaining undue tax refunds.
Obtaining undue tax allowances.
For tax fraud to constitute a criminal offence, the defrauded tax liability, withheld amounts, tax refunds or tax allowances unduly obtained or benefited from must exceed EUR120,000.
When the defrauded amount exceeds EUR120,000, this can only constitute tax evasion when there is fraud on the part of the taxpayer's behaviour (that is, the taxpayer intended to evade the tax). Tax evasion is not committed where there is a mere difference of criteria or opinion between the taxpayer and the tax office.
Assessment, re-assessments and administrative determinations in civil law
A tax dispute in Spain is usually initiated by an appeal against an assessment made by the competent state, regional or local tax office.
With the exception of assessments related to local taxes, upon the issuance of a tax assessment, taxpayers have the option to file an appeal with the tax authority that issues the assessment (although this is not mandatory). If the appeal to the tax authority is unsuccessful, or the taxpayer decides not to file it, the taxpayer can lodge an appeal against the assessment (or the unsuccessful appeal) with the tax tribunal (see Question 5).
Appeals against the assessment of local taxes must be filed before the local tax authority that issued the assessment. If the appeal is unsuccessful and the taxpayer wishes to continue with the process, proceedings in a civil court will commence (see Question 10).
Resolving disputes before commencing court proceedings
There are no alternative dispute resolution procedures. In Spain, it is not possible to dispense with a tax debt and, consequently, the tax office is not empowered to negotiate it. As a result, the resolution of any disputes arising from tax appeals are exclusively handled by the tax tribunals (Tribunales Económico-Administrativos) or the judicial courts.
The tax tribunals are administrative tribunals that have been created to specifically handle tax disputes. As administrative forums, they are not judicial in nature. They form an independent administrative body within the Spanish Ministry of Finance. Their decisions tend to be in line with those of the tax authorities.
To appeal a tax assessment, a taxpayer must lodge an appeal before the tax tribunal within one month of the date the taxpayer was notified of the tax assessment. To have standing to bring a claim in a court of justice, a Spanish taxpayer must have previously appealed against the tax assessment with the tax tribunal (either directly, or after having previously exhausted the optional route of an economic-administrative appeal before the tax authorities).
Elements of the offence in criminal law
It is possible for the Public Prosecutor's Office and the State Attorney to reach an agreement before trial. In general terms, in these agreements the tax debt cannot be discussed (as a consequence of the fact that it is not possible to dispense with a tax debt (see Question 5). The only elements that can be discussed are the amount of the fine and/or the length of the imprisonment.
With these agreements, in order to avoid the trial, the taxpayer accepts the payment of the defrauded tax debt, a fine and/or a term of imprisonment (if applied).
Format of the hearing/trial
Civil hearings are normally conducted in writing. A trial only takes place when either:
A party asks for a trial and the court accepts.
The court decides to order a trial.
Criminal trials are usually conducted orally and are held in public (although certain phases of the investigation period can be heard in private if the judge declares that these proceedings should remain secret).
In criminal cases, if the accused fails to attend, the trial can take place in certain circumstances. However, in cases of tax fraud, no trial can take place if the accused fails to attend.
Role of the judge/arbitrator/tribunal members
Civil tax litigation
In civil tax litigation, the tribunal receives the documents from the parties and, apart from deciding on certain aspects concerning the procedure, their role is mainly passive until the moment at which the tribunal makes a decision.
Criminal tax litigation
During the initial investigation phase, the judge is in charge of investigating the crime, its circumstances, perpetrators and any other matters relating to the offence.
After the investigation phase, the file is submitted to the Trial Court. The main role of this court is to conduct the trial and issue the decision.
Commencement of proceedings: civil law
If the tax tribunal rejects the economic-administrative appeal, the taxpayer can file a contentious-administrative appeal before a court of justice within two months of receiving the notification of the tax tribunal's decision (or within six months, if one year or more has elapsed since the filing of the economic-administrative appeal without an express decision from the tax tribunal). The Spanish courts of justice with jurisdiction over tax matters are the:
National Court, which, in general terms, hears appeals against decisions of the Central Tax Tribunal.
High Courts of Justice, which, broadly speaking, hear appeals against decisions of the regional and local tax tribunals.
In addition, the contentious-administrative courts decide on contentious administrative appeals filed against local tax assessments. Appeals against decisions issued by the contentious-administrative courts can be made before the corresponding High Court of Justice.
Commencement of proceedings: criminal law
If, during the course of a tax audit, the tax office believes that a tax fraud has occurred, it will send the file to the Public Prosecutor's Office, who will decide whether or not to initiate criminal proceedings. If the Public Prosecutor's Office decides to initiate criminal proceedings, the judge must confirm this initiation.
The General Tax Law was amended in September 2015 to:
Bolster legal certainty for both taxpayers and the tax authorities.
Reduce the potential for litigation.
Prevent tax fraud and increase the efficiency of tax management, inspection and collection by the tax authorities.
The reform allows for the relevant departments of the Ministry of Finance to issue provisions aimed at interpretation or clarification, which will be binding on all agencies of the tax authorities, without the need for a previous ruling request from a taxpayer.
Several changes were made concerning the statute of limitations. The most important change is that the tax office can now examine and inspect the events, acts, items, operations, businesses, values and other circumstances determining the tax obligation even where the tax office is statute-barred, provided that those statute-barred matters have an impact on tax years or periods where the tax office is not yet statute-barred.
The general limit on the length of an inspection has been extended from 12 months to 18 months (which is further extendible to 27 months).
In connection with evidence, the General Tax Law now provides that an invoice does not serve as preferred evidence of the existence of transactions and, accordingly, if the tax authorities question its validity on reasonable grounds, the taxpayer must adduce other evidence to authenticate the transactions.
As a result of reforms that occurred in September 2015, where the tax authorities find that there is an indication that a tax crime has been committed, the proceeding continues according to the general rules as usual, but the tax authorities now also forward a case record to the Public Prosecutor's Office which contains any indications of criminal liability. The tax authority will still issue its assessment, as appropriate, but all of the elements of the tax obligation that relate to the potential crime against the Public Treasury will be separated from the civil matters.
No appeal or administrative claim can be filed against an administrative assessment which relates to a potential crime (notwithstanding any adjustment that may need to be made as a result of what is determined in any criminal proceedings).
If no criminal proceedings are commenced as a result of the indications of criminal liability that were forwarded to the Public Prosecutor's Office, the administrative assessment is effectively "rolled back" to the time before the indications were sent, and the appropriate preliminary assessment will be issued.
Burden of proof
In Spain, the general rule concerning the burden of proof is provided in Article 105 of the Spanish General Tax Law, which states that a person who wishes to make a right effective must prove the facts underlying this right. This rule has generally been interpreted by the tax courts to mean that:
The tax administration must prove the income-side.
The taxpayer must prove the cost-side.
The tax courts can also apply the principle of good faith, which can shift the burden of proof to the taxpayer.
Besides this general rule, there are also other secondary rules provided under Spanish law, which only apply to presumptions. In presumptions, there is a reversal of the burden of proof to the taxpayer, who must prove that the presumed fact is wrong, and that the fact he is relying on is true.
The tax administration and the Public Prosecutor must prove the underlying facts relating to the tax evasion.
If the tax tribunal rejects the economic-administrative appeal, the taxpayer can file a contentious-administrative appeal before a court of justice within two months of the notification of the tax tribunal's decision (or within six months, if one year or more has elapsed since the filing of the economic-administrative appeal without an express decision from the tax tribunal).
The Spanish courts of justice with jurisdiction over tax matters are the:
National Court, which, broadly speaking, hears appeals against decisions of the Central Tax Tribunal.
High Courts of Justice, which, broadly speaking, hear appeals against decisions of the regional and local tax tribunals.
In addition, the contentious-administrative courts decide on contentious administrative appeals filed against local tax assessments.
Appeals against decisions issued by contentious-administrative courts can be made before the corresponding High Court of Justice.
Once an appeal has been filed with the court, the court will request that the tax tribunal whose decision is being reviewed provide the documentation relating to the economic-administrative proceedings.
The tax tribunal will provide the documentation to the court and will notify the State Attorney that the case has been admitted to appeal. The court will grant the taxpayer access to the documentation of the proceedings, to enable him, within 20 days of receiving the documentation, to:
File an application against the tax tribunal's decision.
Request the examination of evidence.
The court will also provide the State Attorney with the documentation of the proceedings to enable him to submit allegations against the taxpayer's application and request the examination of evidence.
The court will decide whether to allow the examination of evidence requested by the taxpayer and the State Attorney. If admitted, the evidence will be examined in the presence of one or more judges hearing the appeal. Before the decision is issued, the taxpayer and the State Attorney must file a document with:
Their conclusions on the evidence submitted.
The legal arguments and facts underlying their position.
The court will issue a ruling within ten days of the proceedings being declared closed. The decision will be reached by three judges, although only one will draft the decision.
There is an initial investigation phase, during which the judge is in charge of investigating the crime, its circumstances, perpetrators and any other matters relating to the offence.
Once the investigation phase has been carried out, the judge will end the investigation phase and an intermediate phase before the trial will commence. During the intermediate phase, the judge will issue one of the following orders:
Declare that the offence has not been committed, or that it is impossible to identify the culprits, and order that the file be closed.
Declare that there is enough circumstantial evidence of the commission of the crime and the identity of the culprits to proceed with the intermediate phase.
The judge ends the intermediate phase and issues one of the following orders:
If no facts of a criminal nature have been identified during the investigation, he closes the file for the proceedings and issues a discontinuance order.
If there is sufficient evidence of the potential existence of a criminal offence, he transfers the file to the trial court.
In cases where the maximum penalty prescribed by law is five years' imprisonment or less, the competent court for the trial will be the Local Criminal Court (Juzgado de lo Penal). In cases where the maximum penalty is over five years' imprisonment, the competent court for trial is the appropriate Provincial Court (Audiencia Provincial). However, very serious cases are dealt with by the Central Courts at the National Court (Audiencia Nacional) in Madrid.
Trials held at a Local Criminal Court are heard by a single professional judge and it is mandatory for the accused to have legal representation.
Trials held at the Provincial Court or the Central Courts at the National Court are heard by a panel of three professional judges and again it is mandatory for the accused to have legal representation. The victim, or aggrieved party, is entitled to be represented in the prosecution by a private lawyer, but there is no provision for those costs to be recoverable.
Disclosure of documents in civil proceedings
The parties have the right to provide the court with all the documents they consider necessary to prove the truth or falsehood of the facts at issue. All the documents intended to be used as evidence must be disclosed to the court and to the other parties.
The parties can provide mechanically-produced duplicates of documents instead of the originals, provided that no other party challenges the accuracy of the copy.
The law distinguishes between public documentary evidence and private documentary evidence. Public documents refer to those that are certified by a commissioner for oaths. The following are regarded as public documents:
All judicial resolutions.
Any document certified before a Public Notary.
Certificates issued by Company and Land Registrars.
Certificates issued by civil servants.
Public documentary evidence can have a wide-ranging effect on the result of the proceedings, as they are considered to provide full evidence of:
The date of the document.
The parties involved.
The actions performed by the parties before the commissioner for oaths.
Private documents refer to all documents that are not considered as public documents by law. Private documents will give full evidence of the facts at issue where they are not challenged by the other party. Where the other party challenges the evidence presented in a private document, he can request a handwriting examination in order to attest to the authenticity of the document, or produce any other evidence to determine the genuine existence and accuracy of the document.
Courts in Spain will only admit evidence deemed relevant (that is, evidence which is or may be useful to prove the facts alleged by the parties). Both the admission and refusal by the judge of the production of a particular piece of evidence is subject to appeal by the parties.
In addition, any items of evidence which are obtained as a result of a breach of fundamental rights are null and void.
Disclosure in criminal proceedings
The rules are similar to civil proceedings (see Question 16).
In addition to the rules described above for civil proceedings (see Question 17), it is not possible to force the defendant to disclose documents that might incriminate him.
Witnesses of fact provide oral evidence. They testify before the court, providing oral evidence of what they have seen, heard or otherwise observed. Before testifying, every witness must declare that he will testify truthfully (either by oath or by affirmation). The testimonial evidence is subject to an interrogation which is conducted directly by the parties' attorneys. Witnesses are also subject to cross-examination by the party not calling the witness. The judge is empowered to exercise reasonable control over the mode and order of interrogating witnesses so as to make the interrogation effective in ascertaining the truth. The judge also ensures that there is no needless wasting of time, and protects witnesses from harassment or undue embarrassment. The judge can also interrogate witnesses. The effect of the testimony of witnesses on the result of the proceedings is limited, as this type of evidence is not binding upon the judge.
The rules are similar to those for civil law (see above, Civil law).
Witnesses are not usual in civil tax cases. It is possible to prepare them, but attorneys must bear in mind the fact that witnesses must maintain a natural and consistent approach when answering any questions posed by the opposing party and the judge.
As for civil law trials, the preparation of witnesses is allowed, but witnesses must maintain a natural and consistent approach when answering any questions posed by the prosecutor and the judge.
Hearsay evidence in civil and criminal trials
Hearsay evidence is generally admissible, as at any time during the hearing, the court will admit any evidence that may serve to prove the truth or falsehood of a witness.
The rules are similar as those for civil trials (see above, Civil trials).
Expert reports in civil trials
Expert evidence in civil trials
The testimony of expert witnesses is aimed at furnishing the court, when necessary, with scientific, technical, or other specialist knowledge which is likely to be outside the court's experience. In all cases, experts must ratify their conclusions and are subject to cross-examination by both the parties and the judge during the production of evidence phase. The effect of the testimony provided by experts on the result of the proceedings is limited, as this type of evidence is not binding on the judge. Notwithstanding this, judges usually follow the conclusions reached with expert evidence, unless those conclusions are arbitrary or unreasonable.
Expert evidence in criminal trials
Closing the case in civil trials
Closing the case in criminal trials
Decision, judgment or order
Civil law cases
Criminal law cases
After having established that a defendant is guilty, the court must determine the applicable sentence within the range established in the Criminal Code for the specific criminal offence.
The decision of the court must explain its reasoning, providing an explanation of why the defendant is considered guilty and the reasons for the penalty imposed.
Appeals before the tax authorities and before the tax tribunals are cost-free. It is not compulsory to hire a lawyer or a court agent to act as an intermediary between the lawyer and the tax administration. At this stage, no judicial tax is levied.
However, appeals before judicial courts do incur costs, specifically:
Court agents' fees.
Court agents' fees are calculated in accordance with the rules approved by the Spanish Ministry of Justice and, as a general rule, are based on the amount claimed in the appeal. The judicial taxes are applicable to legal entities and are also based on the amount claimed in the appeal. There is a fixed fee that ranges from EUR200 to EUR1,200.
The court usually orders the unsuccessful party to pay the appeal costs of the winning party (including lawyers' fees, court agents' fees and judicial taxes). However, it is very common for the court to limit the amount of the costs to be repaid as compensation for lawyers' fees, usually to a maximum of EUR6,000. Court agents' fees and judicial taxes are normally repaid in full.
Criminal trials also incur costs, specifically lawyers' fees and court agents' fees.
In the case of a guilty verdict, the court will usually order the unsuccessful party to pay the costs of the parties involved (including lawyers' fees and court agents' fees).
Right to appeal in civil law
Proven facts that have already been declared by a court decision are considered to be a matter already judged (res judicata) for the purposes of appeals, and therefore cannot form the grounds for an appeal. Therefore, appeals, can only be made on the grounds of matters of law, or an error in the judgment or the procedure.
Procedure to appeal in civil law
An adverse ruling from the National Court can be appealed before the Supreme Court through a cassation appeal within ten days of the taxpayer being notified of the ruling. The Supreme Court is the highest judicial court in Spain in all areas of law. Its decision is final and binding, and therefore is not subject to appeal (except if the appeal is based on an infringement of the Spanish Constitution). In this regard, only an extraordinary appeal for review is possible in the event of the discovery of previously unknown documents or facts that could potentially have changed the outcome of the Supreme Court's judgment.
To file a cassation appeal, a document must be submitted to the court whose sentence is under review, which states:
The reasons why the court's ruling is being appealed.
That all legal formalities have been satisfied.
Among other things, in an ordinary cassation appeal, the amount of the tax assessment at issue must exceed EUR600,000. If the document is submitted correctly, the court will grant the taxpayer 30 days to file the appeal before the Supreme Court. The court will then provide the documentation of the proceedings to the Supreme Court. The cassation appeal must include all the arguments to support the filing of the appeal and the law or regulation infringed by the court's ruling. The Supreme Court will decide on the admissibility of the appeal. It may be admitted on the basis of one or several arguments put forward by the taxpayer. If it is admitted, the Supreme Court will provide the State Attorney with the appeal documentation so that he can make allegations against the appeal within 30 days of notification of the appeal. The ruling of the Supreme Court will be issued within ten days of the proceedings being declared closed.
Right to appeal in criminal law
Procedure to appeal in criminal law
A judgment issued by the Local Criminal Court can be appealed (recurso de apelación) before the Provincial Court (Audiencia Provincial) by either the defence or the prosecution. If the original trial has taken place at the Provincial Court (that is, if the penalty could be over five years' imprisonment), the judgment will be subject to a cassation appeal (recurso de casación) at the Supreme Court (Tribunal Supremo). Any such appeal must be filed within five days from notification of the judgment. Procurator Decisions of the Supreme Court are final. An appeal from the Supreme Court to the Constitutional Court can only be lodged if it is asserted that a right contained in the Spanish Constitution has been violated.
Should new evidence come to light after a person has been found guilty, there is a provision for the original judgment to be reviewed. A Petition for Revision can, in these circumstances, be lodged with the Ministry of Justice who, if it accepts that there is a case, will instruct the Public Prosecutor to pursue the Petition for Revision before the Supreme Court.
Recent civil law developments and proposals for reform
The most significant development is the recent amendment to several aspects of the General Tax Law that have previously caused some difficulties for the tax office. The most relevant one, which has been strongly contested, is the possibility of imposing penalties in the case of conflict with the applicable law (the anti-abuse rule). This provision could be challenged by the Constitutional Court, as the reform is not consistent with the position of the Constitutional Court in several sentences.
Recent criminal law developments and proposals for reform
Tax Agency (Agencia Tributaria)
Description. The official website of the Tax Agency (Agencia Tributaria) in Spain.
Official State Gazette (Boletín Oficial del Estado)
Description. The official website of the Spanish State Gazette.
Luis Rodríguez-Ramos, Senior Partner
Ramón y Cajal Abogados
Professional qualifications. Admitted to the Madrid Bar Association.
Areas of practice. M&A; venture capital; tax procedures.
- Structuring in a tax efficient manner the sale of a debt portfolio (collateralised by hotel properties) by a Spanish financial entity.
- Private equity deals on both domestic and cross-border transactions.
- The structuring of private investment in film productions, advising both film producers and financial institutions.
- Inbound and outbound real estate investments and disinvestments including tax optimisation through the use of Spanish Real Estate Investment Trusts.
Languages. Spanish, English, French.
Professional associations/memberships. Madrid Bar Association.
"Transfer pricing in Spain", Transfer pricing 2015, Getting The Deal Through.
"Personal income tax", Cuadernos de Derecho para Ingenieros, Iberdrola, La Ley.
"Non-avoidance clauses and double tax treaties. Unresolved issues", Revista Estudios Financieros, June 2011.
"Taxation in leveraged buyouts", ECF Magazine, 2011.
"Anomalous businesses and similar figures in tax law", Tirant Lo Blanch, 2010.