Gonzalo Arrieta is a retired engineer who has lived in Altea since 2019, with his tax residence in Spain. For years he held a share portfolio with a broker in Luxembourg that he never declared: he received dividends and left them there. In 2023 he sold almost the whole portfolio at a gain of 650,000 €. He did not declare that either. In September 2026 his daughter, going through his papers, finds the statements and asks him the question in the title of this page. The answer is not yes or no: it depends on each year separately, on how the income was hidden and, above all, on whether Gonzalo moves first before anyone serves notice on him.
Three tax years, only one candidate
Article 305 of the Spanish Criminal Code (Código Penal) punishes anyone who defrauds the Treasury where the tax defrauded exceeds 120,000 €. Its paragraph 2.a) sets out how that is measured: for periodic taxes, what counts is the amount defrauded in each tax period, and if the period is shorter than twelve months, the figure refers to the calendar year. That is why quarterly VAT is added up by years and IRPF, Spanish personal income tax, goes year by year, without putting one tax together with another.
With the savings income scale (19 % up to 6,000 €, 21 % up to 50,000 €, 23 % up to 200,000 €, 27 % up to 300,000 € and 30 % above that, adding the state and the regional parts together), Gonzalo's approximate figures are these. They do not include any relief for double taxation he might be entitled to for tax paid abroad, which would reduce them:
| Tax year | Undeclared income | Approximate tax | Over 120,000 €? |
|---|---|---|---|
| 2022 | 18,000 € of dividends | 3,660 € | No |
| 2023 | 650,000 € of gain and 20,000 € of dividends | 182,880 € | Yes |
| 2024 | 22,000 € of dividends | 4,500 € | No |
The 2023 calculation, step by step:
- Savings base: 670,000 €.
- First 6,000 € at 19 %: 1,140 €.
- From 6,000 to 50,000 € at 21 %: 9,240 €.
- From 50,000 to 200,000 € at 23 %: 34,500 €.
- From 200,000 to 300,000 € at 27 %: 27,000 €.
- The remaining 370,000 € at 30 %: 111,000 €.
- Total: 182,880 €.
Only 2023 reaches the figure. The other two years, even if together they added up to 500,000 €, would each remain an administrative infringement, because they are not accumulated.
The figure alone does not make the crime
Article 305 requires defrauding, and that can be done by action or by omission. The law adds a sentence worth keeping in mind: merely filing returns or self-assessments does not rule out fraud when it is proven by other facts. In other words, having filed the 2023 income tax return without the sale does not protect Gonzalo; nor does it condemn him on its own.
What is argued in each case is whether there was conduct aimed at keeping the income from the tax authorities. Leaving the money in a foreign account that sends data through automatic exchange of information is not weighed in the same way as using shell companies or putting accounts in other people's names. None of those readings can be taken for granted in advance: if it comes to it, a judge decides how to classify the conduct, and there is no way to predict with certainty how the judge will see it.
When the scale gets harsher
Article 305 bis provides for an aggravated offence where the tax exceeds 600,000 €, where the fraud is committed within a criminal organisation or group, or where intermediary persons or entities, fiduciary instruments or tax havens are used to hide the identity of the taxpayer or the amount. The difference is not only in the sentence:
| Basic offence (art. 305) | Aggravated offence (art. 305 bis) | |
|---|---|---|
| Prison | One to five years | Two to six years |
| Fine | From the amount of the tax to six times that amount | From twice to six times |
| Loss of grants and tax benefits | Three to six years | Four to eight years |
| Limitation period for the crime (art. 131 of the Criminal Code) | Five years | Ten years |
Gonzalo, with 182,880 € and an account in his own name, would in principle fall under the basic offence. Had the portfolio been held in a company in a zero-tax territory, it would be a different conversation.
The tax authorities lose the right to assess after four years, but the basic offence is time-barred after five. During that one-year gap, the fact that Hacienda, as the Spanish tax office is commonly known, can no longer issue an assessment does not mean the conduct can no longer be prosecuted. That is why it is unwise to rely on the administrative calendar when the tax for a year exceeds 120,000 €.
The way out in article 305.4 and its exact conditions
The Criminal Code treats the position as regularised when the taxpayer has fully acknowledged and paid the tax debt before any of these events:
- Hacienda serving notice that it has started a review or investigation into those debts.
- The public prosecutor, the State's lawyer or the representative of the regional, foral or local administration bringing a criminal complaint or report against the taxpayer.
- The prosecutor or the investigating judge taking steps that give the taxpayer formal knowledge that proceedings have been opened.
Article 252 of the General Tax Act (Ley General Tributaria) specifies what the full debt is: filing the self-assessment and paying, at the same time, the tax, the late-payment interest and the surcharges accrued up to the date of payment. It is not enough to file and ask for time, or to declare the gain and leave out the dividends of the same year. Regularisation, moreover, does not only cover the tax crime: article 305.4 itself prevents prosecution of accounting irregularities or other instrumental falsehoods committed solely in connection with that debt.
A point often overlooked: under the same paragraph, regularisation also has its effects when debts are paid whose assessment is already time-barred in the administrative route. That is the legal answer to the one-year gap shown in the table above.
What regularising 2023 would cost today
The 2023 income tax campaign ended in early July 2024, so by September 2026 more than twelve months have passed. With an assumed interest rate of 4 % a year, purely for the example, the figures would be:
- Tax: 182,880 €.
- Surcharge under article 27.2 of the General Tax Act, since more than twelve months have passed: 15 %, 27,432 €.
- If everything is paid on filing and the surcharge is paid within the period opened by its assessment, article 27.5 reduces it by 25 %: 20,574 €.
- Late-payment interest from the end of those twelve months, about fourteen months: around 8,534 €.
- Approximate total: 211,988 €.
On top of that come 2022 and 2024 with their own, much smaller, surcharges. If Gonzalo does not have the cash to pay the full amount in one go, the problem changes in nature: the law speaks of payment, and a deferral requested on filing is not the same thing. It should be studied before taking any step, because there is no guarantee that a regularisation without full payment produces the effects of article 305.4.
If you are in a similar position, you can send us the statements and the returns filed through the regularisation form. The first thing we will do is calculate the tax for each tax and each year, which is what tells you which side of the threshold you are on.
An information letter does not close the door, but it watches it
An information notice from the Agencia Tributaria, the Spanish tax agency, of the kind "we have received information about your accounts abroad", is not, by its wording, the start of a review or investigation. In principle, therefore, it does not prevent regularisation with criminal-law effects. But it is the sign that the data is already in Hacienda's hands and that the next step may be a procedure. Waiting to see whether anything else arrives is precisely what makes the way out close. The difference between the two kinds of paper is explained in I have received an information letter.
When someone else needs to be at the table
When the tax for one year approaches 120,000 €, or when there are companies, trusts or accounts in other people's names, the matter is no longer purely a tax one. We work on the tax side: quantifying, preparing the self-assessments and the payment. If there is a real criminal risk, a criminal lawyer should review the case before anything is filed, because what is filed is also a statement of facts. We cannot guarantee that a regularisation avoids every consequence; we can say what the law requires and when that route stops being available.
For the vast majority of people who come to us with years outstanding, the figure is far away and the real question is how much surcharge is paid. That scale is in how much the surcharge for filing late is, and the order for filing several years in the guide on the order for regularising several tax years.
If you have undeclared income and want to know what it costs to bring it up to date before Hacienda gets there first, the page on voluntary disclosure with Salama Tax explains which years are reviewed, which documents are requested and how the quote is prepared.