The Supreme Court has confirmed the acquittal of the footballer Xabi Alonso and two of his tax advisors for a crime against the Public Treasury for transferring the exploitation of his image rights to a company based abroad.
The Second Chamber rejects the appeal presented by the State Attorney's Office on behalf of the Treasury, to which the Prosecutor's Office joined, against the acquittal ruling of the Superior Court of Justice of Madrid, which in turn confirmed that of the Provincial Court of Madrid.
The facts prosecuted focus on the contract of August 1, 2009 by which Xabier Alonso transferred the exploitation of his image rights to the Kardzali company, based on the Portuguese island of Madeira.
According to the appellants, it was a simulated legal transaction, conceived as a strategy to defraud the Spanish public treasury, thus hiding the correct taxation of the income associated with the footballer's image rights.
The sentence was handed down by judges Manuel Marchena (president and speaker), Juan Ramón Berdugo, Andrés Palomo, Pablo Llarena and Carmen Lamela.
The Criminal Chamber of the TS highlights the difference between the criminal process that has affected the accused and two of his tax advisors, compared to those other professional footballers who were convicted by the Provincial Court of Barcelona and, in some of those cases, had their conviction confirmed. condemnation by this Court. These are not comparable cases, the ruling argues, to the extent that those accused were convicted in the instance.
In the case in question now, however, the accused footballer has been acquitted by the Provincial Court and his acquittal has been endorsed by the Superior Court of Justice when hearing the appeal.. The intention of the State Attorney's Office and the Public Prosecutor's Office to annul the acquittal sentence and order the repetition of the oral trial or, in another case, to now issue a conviction collides with the obstacles imposed by the special nature of the appeal.
In the ruling, the High Court recalls the limits derived from the appeal of cassation as a procedural instrument to convert an acquittal sentence into a sentence of conviction.. In fact, not all of the reasoning invoked in the instance, later supported in the appeal, are accepted without nuances by the Chamber: “…the existence, for example, of accredited billing work on the part of Kardzali, a fact to which The lower court ruling attributes the condition of incontrovertible proof that that company carried out a commercial activity, it is susceptible to another approach.. By definition, one of the detectable notes in any social entity that only seeks to serve as a fraud instrument is precisely the issuance of invoices.. Invoicing, by itself, does not clean up the commercial activity of a company conceived for fraudulent purposes.. It is the corporate and functional structure – not its billing activity – that is the feature that defines any legal entity conceived as the subject of a genuine commercial activity.
Discrepancies with the Treasury
The geographical relocation and the absence of a work activity carried out by employees of that firm provide an indication that, although the lower court ruling discards its incriminating significance, can be interpreted as another complementary piece of information put at the service of tax fraud.
For the magistrates, there are several evidentiary inferences that have led to ruling out the objective type of crime provided for in article 305 of the Penal Code, which may be susceptible to an alternative trial.. “The evidentiary conclusion signed by the trial Judges, which has led to denying that the contract signed by the accused in favor of the Kardzali entity was filtered by any kind of simulation and, in particular, the denial of fraud as an intellectual element of reinforcement with respect to other of the operations covered by the factum, close any possibility of review by this Chamber that reverses the acquittal pronouncement.”
The ruling handed down by the Supreme Court emphasizes the importance of clearly separating those cases in which the evidence shows clandestine and fraudulent actions by the taxpayer, intended to hide economic returns, and those in which these returns have been declared: “The legal discrepancy between the taxpayer and the Public Treasury regarding the amount of taxation that does not, of course, meet the rate provided for in article 305 of the Penal Code. When the assessment presented by the taxable person reveals in its entirety the profits obtained in any economic activity and offers the Public Treasury a method of taxation that the inspection services consider incorrect, this interpretative disagreement refers not to 'what', but to 'how much', cannot become the origin of a criminal process”.