SPAIN Law and Practice Contributed by: Daniel Jimenez García and Álvaro Martín Talavera, SLJ Abogados
two to five times the amount of the profit obtained or losses avoided. Market Manipulation Article 284 of the Criminal Code punishes any per - son who distorts the price of products, commodities, financial instruments, spot commodity contracts, benchmark indices, services or movable or immov - able property by: • violence, threats or deception; • the dissemination of false news or rumours about companies to alter their market price; or • the execution of transactions or orders creat - ing false or misleading signals as to the supply, demand or price of financial instruments. The latter two behaviours are only punishable where the profit or loss exceeds EUR250,000, the funds used exceed EUR2 million or serious harm is caused to the integrity of the market. The offence carries a penalty of up to six years’ impris - onment, a fine and disqualification from participation in the financial markets, with aggravation where the perpetrator acts habitually, the harm is of particular significance or the perpetrator is an employee of a financial institution or a supervisory authority. Investors Fraud Article 282 bis punishes directors of issuing com - panies who falsify economic or financial information in prospectuses or in the periodic reports they are required to publish under securities market legislation, to attract investors or financing. The penalty is one to four years’ imprisonment, rising to six years where particularly serious harm is caused. Unauthorised Financial Services Activity The Criminal Code does not expressly criminalise unauthorised financial services. However, such con - duct may be prosecuted as professional intrusion or, where deception and harm are present, as fraud. 3.5 Tax Evasion and Financial Reporting Tax Fraud Article 305 of the Criminal Code punishes any person who defrauds the payment of taxes, obtains improper
refunds or fraudulently enjoys tax benefits, where the amount exceeds EUR120,000 per tax and tax period. Mere non-payment does not constitute an offence; active concealment must be demonstrated. The basic penalty is one to five years’ imprisonment plus a fine of up to six times the amount evaded. This increases to six years when the amount exceeds EUR600,000, a criminal organisation is involved or opaque structures are used. Voluntary regularisation before a tax inspection or criminal complaint exempts the taxpayer from liability. Falsification of Annual Accounts Article 290 punishes a director who falsifies the annual accounts or other documents that must reflect the financial position of a company, where such falsifica - tion is capable of causing harm to the company, its shareholders or third parties. The basic penalty is one to three years’ imprisonment and a fine, with aggrava - tion where the harm materialises. Accounting Fraud Article 310 punishes with five to seven months’ impris - onment any person who, being under a legal obliga - tion to do so: • (i) entirely fails to maintain accounts under the direct assessment regime; • (ii) maintains dual sets of accounts; • (iii) omits transactions or records them at figures other than their true amounts; or • (iv) makes fictitious accounting entries. Scenarios (iii) and (iv) only constitute an offence where the relevant tax returns have been omitted or reflect false accounts and the amount of the omitted or falsi - fied entries exceeds EUR240,000 per financial year. This is a standalone offence, chargeable concurrently with or independently of tax fraud. Social Security Fraud Article 307 punishes defrauding the Social Security by evading contributions or obtaining improper refunds, where the amount exceeds EUR50,000 over four years.
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