SPAIN Law and Practice Contributed by: Cristina Alba and José María Rodríguez Hernández, act legal
5. Anti-Avoidance and Anti-Evasion Measures 5.1 Definition and Identification of Tax Fraud, Evasion, Tax Avoidance and Abusive Schemes In Spain, the system currently in force as of February 2026 establishes a clear distinction between admin - istrative violations, criminal tax fraud, and abusive schemes that are addressed under the General Anti- Avoidance Rule (GAAR). Under the GTL, abuse arises where arrangements are artificial or improper and primarily designed to obtain a tax advantage without generating relevant non-tax effects. If the tax authorities conclude that such abuse exists, they may disregard the chosen arrangement and recalculate taxation based on the transactions that would have occurred under ordinary circumstanc - es. This recharacterisation follows a special consulta - tive process, which shows that GAAR application is not automatic and is protected by legal rules. The GTL also covers administrative violations, which can lead to penalties such as fines that range from minor to very significant depending on various factors, such as repeated violations or the use of fraudulent means. Criminal tax fraud may apply where deliberate under - payment exceeds statutory thresholds (EUR120,000 per tax and period) and is prosecuted under the Crimi - nal Code. In cross-border contexts, certain indicators such as lack of economic substance, use of non-cooperative jurisdictions, hybrid mismatches, excessive interest deductions and low-taxed passive income structures may be key risk indicators. 5.2 Anti-Avoidance Mechanisms Spain combines a general anti-abuse framework under the GTL (including the “conflict in the appli - cation of the tax rule” doctrine) with a broad set of specific anti-avoidance provisions, particularly under the CIT legislation. These mechanisms address both substantive tax avoidance and the detection/preven - tion of fraud and evasion.
Key anti-avoidance rules include: • the interest deduction limitation regime, including the general limitation (generally 30% of tax EBIT - DA, subject to statutory thresholds and carryfor - wards) and the specific rule for certain acquisition- financing structures; • the specific non-deductibility rule for financial expenses on intra-group debt used to acquire participations from, or make contributions to, other group entities (unless valid economic reasons are evidenced); • hybrid mismatch rules; • the controlled foreign company (CFC) regime; • transfer pricing rules (including documentation requirements and valuation adjustments); and • specific rules and defensive measures for transac - tions involving non-cooperative jurisdictions. In addition, Spain has strengthened tax control through extensive reporting and transparency obliga - tions (including mandatory disclosure rules for certain cross-border arrangements and information reporting by digital platforms), together with broad investiga - tive powers for the tax authorities, such as inspection procedures, information requests and precautionary measures, all subject to procedural and constitutional safeguards. 5.3 Blacklists and Non-Cooperative Jurisdictions Spain has an official list of “non-cooperative juris - dictions” for tax purposes. This list is presently in Order HFP/115/2023, which replaced the term “tax haven” with the broader term currently in use. The Order entered into force on 11 February 2023 (with a deferred effective date of 11 August 2023 for jurisdic - tions newly added to the list). This list sits within a broader statutory framework in Additional Provision 1 of Law 36/2006 (as amended, notably by Law 11/2021), which allows Spain to clas - sify not only countries/territories but also certain harmful tax regimes as non-cooperative. The criteria are broader than the former “tax haven” concept and include transparency and exchange-of-information standards, effective exchange in practice, beneficial
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