Regularise Before the AEAT Acts: Criminal Exemption and Minimum Surcharges
Advisory and representation in voluntary tax regularisation before criminal proceedings or AEAT investigation: criminal law exemption under Art. 252 LGT, late-filing surcharges without penalties, confidential handling.
How we work
Confidential Situation Assessment
We analyse the situation in strict confidence — the tax adviser's professional privilege is protected by law — to determine whether the tax irregularity is eligible for voluntary disclosure, in which tax years it has occurred, the approximate size of the tax liability and whether circumstances exist that could give rise to criminal liability (unpaid tax exceeding €120,000 per tax and per year). This phase typically takes 24–48 hours and is the prerequisite for any subsequent decision.
Liability Quantification and Surcharge Analysis
We calculate with precision the tax due, accrued interest and late-filing surcharges under Article 27 LGT. Surcharges are calculated on the unpaid principal: 1% per full month of delay in the first 12 months, then 15% from month 13, always without any additional penalty. The interest rate is 4.0625% per annum (2026 rate). This analysis allows a direct comparison of the cost of disclosing now versus the estimated cost of a forced regularisation initiated by the AEAT.
Disclosure Strategy Design
We determine the scope of the regularisation: which taxes, which years, which amounts. In complex situations — multiple taxes affected, partially time-barred years, foreign assets — the strategy includes the optimal sequencing of return filings, coordination with information reporting obligations (Form 720, Form 721) and, where appropriate, notification to regulators other than the AEAT (Bank of Spain, CNMV). Where criminal risk exists, criminal counsel is involved at this stage.
Return Filing and Closure
We prepare and file the necessary supplementary or late returns, manage payment of the resulting liability and obtain, where applicable, documentary evidence of the disclosure that confirms to the AEAT that the action was spontaneous. Once regularised, we prepare an internal residual risk report and compliance recommendations to prevent recurrence.
The challenge
When a company or individual discovers they have under-declared — undisclosed income, false invoices, undeclared foreign accounts, unreported crypto assets — the instinctive reaction is to wait and see whether the Spanish Tax Agency (AEAT) detects the problem. That calculation is profoundly wrong. If the AEAT or the Public Prosecutor act first, voluntary disclosure is no longer available and the taxpayer loses the criminal law exemption of Article 252 LGT. At that point, a tax debt that could have been resolved with a 10–15% late-filing surcharge and no penalty becomes a file with criminal exposure for tax fraud, administrative sanctions of 50–150% of the underpaid amount and, where the unpaid tax exceeds €120,000, criminal proceedings with custodial sentences of one to five years.
Our solution
BMC coordinates the analysis of the tax position, quantification of the liability, disclosure strategy and filing of the necessary supplementary returns to ensure the regularisation meets the requirements of Article 252 LGT: complete, spontaneous and prior to any administrative or criminal action. Where the situation carries criminal risk, we work alongside specialist criminal lawyers to ensure the tax regularisation is also effective as a criminal law defence.
When a company or individual discovers a tax irregularity — undisclosed income, undeclared foreign accounts, unreported crypto assets, false invoices — the window for voluntary tax disclosure under Article 252 of Spain’s General Tax Law (LGT) is both the most valuable and the most time-sensitive tool available. BMC coordinates the full voluntary tax disclosure process: from the initial confidential assessment through quantification, strategy and filing, ensuring the regularisation meets the statutory requirements and eliminates both administrative and criminal exposure.
What Article 252 LGT voluntary tax disclosure does
Article 252 LGT provides that a taxpayer is exempt from criminal liability for tax fraud (Article 305 CP) if they regularise their tax position completely and spontaneously before the Spanish Tax Agency (AEAT) or the Public Prosecutor initiates any investigation or proceeding. The mechanism is simple in structure: file the supplementary return, pay the resulting tax with accrued interest and the late-filing surcharge, and obtain full exemption from criminal prosecution — regardless of the amounts involved. The financial cost is the tax itself, plus interest at 4.0625% per annum and a surcharge of 1% per month for the first 12 months (maximum 12%) or 15% from month 13, always without any additional administrative penalty.
The criminal threshold and its implications
Where the unpaid tax exceeds €120,000 per tax and per year (Article 305 CP), the irregularity constitutes the criminal offence of tax fraud, with custodial sentences of one to five years, fines of one to six times the shortfall, and disqualification from public contracts and subsidies. Above €600,000 the sentence rises to two to six years with additional aggravating factors. The Article 252 LGT voluntary disclosure eliminates criminal liability entirely — provided it is made before any investigation starts. There is no minimum or maximum: the mechanism works for a €121,000 shortfall and for a €5M shortfall alike, provided the disclosure is complete and spontaneous.
Situations where voluntary disclosure is appropriate
- Undisclosed business income or revenues: cash sales not invoiced, income booked as loans or shareholder contributions
- False invoices: deductible expenses backed by fictitious or inflated invoices
- Foreign accounts and assets not declared on Form 720: bank accounts, investment portfolios, real estate held through foreign structures
- Crypto assets not reported on Form 721 or not included in IRPF/IS returns
- Dividend income from foreign companies not declared in Spain
- Shareholder loans recorded as such in the accounts but economically equivalent to undisclosed salary or dividend distributions
Coordination with criminal counsel
Where the quantified tax shortfall approaches or exceeds the €120,000 criminal threshold, voluntary disclosure requires coordination between the tax adviser and a criminal lawyer specialised in financial crime. The tax adviser manages the calculation, strategic sequencing and filing; the criminal lawyer ensures that the communication with the AEAT does not generate any adverse admissions and that the regularisation is structured to constitute an effective criminal defence. BMC has established working relationships with leading criminal defence practices for this purpose.
After disclosure: preventing recurrence
A successful voluntary disclosure closes the liability for the regularised period, but the AEAT will apply enhanced scrutiny to the taxpayer’s subsequent returns. BMC prepares a post-disclosure compliance plan: internal controls for expense documentation, transfer pricing documentation for intragroup transactions, Form 720/721 review for the current year and a tax risk map identifying areas requiring monitoring.
The experience behind our work
We identified a series of accounting irregularities in the 2020–2023 financial years involving unpaid tax above the criminal threshold. BMC coordinated the complete regularisation in three weeks: analysis, quantification, strategy with criminal counsel and filing of the supplementary returns. The matter closed with no administrative proceedings and no criminal risk. The alternative would have been to wait for the AEAT to discover it.
Experienced team with local insight and international reach
Results that speak for themselves
Tech company international expansion
Tax structure implemented enabling operations in 3 new markets with 28% tax savings compared to the unplanned scenario.
Corporate Group Tax Optimization Spain | BMC
28% reduction in consolidated tax burden and simplification of the corporate structure from 5 to 3 entities.
Beckham Law Tech Executive: 24% Rate, BMC Case Study
Effective tax rate reduced from 47% to 24%, saving €180,000 per year. Article 149 election approved without issues.
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Frequently asked questions on voluntary tax disclosure in Spain
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Voluntary Tax Disclosure in Spain (Art. 252 LGT)
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