Infracción tributaria y delito fiscal

Es de todos conocido que el funcionamiento del sistema tributario español se basa en el cumplimiento de una serie de normas que regulan la relación entre el contribuyente y la Agencia Tributaria. Estas normas establecen los deberes tributarios cuyo incumplimiento genera la infracción y la correspondiente sanción. La ley General Tributaria regula la normativa aplicable en materia de infracciones y sanciones, aunque las leyes de cada tributo regulan algunas infracciones específicas.

Infracción tributaria

Se entiende como infracción tributaria toda acción voluntaria e intencionada que esté tipificada y sancionada en las leyes. Para que la conducta de un contribuyente se pueda calificar de infracción y recibir la sanción correspondiente deben darse los hechos siguientes:

  • Que haya una norma que tipifique y describa esa conducta como sancionable.
  • Que esté prevista la sanción a aplicar cuando se produzcan hechos que determinen esa infracción.
  • Que exista culpabilidad manifiesta por parte del infractor. Esa culpabilidad puede venir determinada por la intencionalidad o la negligencia en el acto.

Las infracciones tributarias pueden clasificarse como leves, graves o muy graves. La norma que describe la infracción también debe clasificarla en el grupo correspondiente siguiendo el criterio de la existencia de ocultación o de medios fraudulentos. Se entenderá que existe ocultación cuando no se presenten las declaraciones correspondientes; cuando se presenten declaraciones en las que se incluyan operaciones inexistentes o con importes falsos o cuando se presenten declaraciones en las que se omiten total o parcialmente operaciones, ingresos, productos, bienes, rentas o cualquier otro dato que altere la deuda tributaria.

Se entenderá que se han utilizado medios fraudulentos en la presentación y liquidación de los tributos cuando existan anomalías en la contabilidad o en los libros establecidos por la normativa contable; cuando se empleen facturas, justificantes u otros documentos falsos o falseados o cuando se utilicen personas o entidades interpuestas para ocultar la identidad del infractor.

Delito fiscal

El delito fiscal es aquel delito consistente en defraudar a la Hacienda Pública por un importe superior al fijado por la Ley, importe fijado actualmente en 120.000 euros. Se entiende que defrauda el que omite ingresos tributarios y deja de ingresar la cuota correspondiente. Normalmente, el incumplimiento de las obligaciones fiscales es una infracción administrativa que se sanciona con una multa. Sin embargo, un incumplimiento fiscal grave, como sería el que supere el límite establecido, se considera delito y no infracción. En este caso son los Juzgados de lo penal los encargados de instruir estos procedimientos y condenar las actuaciones.

No hay diferencias sustanciales entre el delito fiscal y las infracciones tributarias. Ambos se diferencian básicamente en el grado de gravedad que alcanzan, según la cuantía. Para que exista delito y no infracción administrativa no es suficiente con dejar de ingresar la cantidad mínima fijada por la Ley, sino que es necesario que de forma añadida, exista también una actuación del sujeto tendente a evitar el pago. El delito fiscal exige la existencia una conducta intencional y deliberadamente dirigida a defraudar. El autor tiene que tener conocimiento de la existencia de una deuda o deber de ingreso tributario, omitiendo el ingreso mediante la infracción de los deberes formales.

El delito fiscal puede castigarse con pena de prisión de 1 a 4 años o con una multa del 100% al 600% de la cantidad defraudada. También se contempla la pérdida del derecho a obtener beneficios o incentivos fiscales o de la Seguridad Social durante un periodo de 3 a 6 años y la pérdida de la posibilidad de obtener subvenciones o ayuda públicas durante un periodo de 3 a 6 años. Las penas se aplicarán en su grado máximo si se demuestra que se han utilizado personas interpuestas para ocultar la identidad del defraudador o cuando la defraudación se considere extremadamente grave por el importe de lo defraudado o por la existencia de una organización estructurada para la comisión del delito.

Fuente: Alvarez Abogados Tenerife

También le puede interesar:

Abogados Penalistas Tenerife


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