The increasing aggressiveness of the Spanish tax authorities in interpreting and applying tax regulations has created challenges not only for taxpayers but also for tax advisors, especially when clients are under investigation.
The issue gained international attention with the Messi case, where Lionel Messi was convicted by the Spanish Supreme Court in 2017 for defrauding the Spanish treasury of €4.1 million through a network of companies, including some in tax havens.
Delegation Does Not Remove Responsibility
Messi’s defense claimed he relied on qualified tax advisors and therefore should not bear full liability for the resulting tax outcomes. The court rejected this argument, emphasizing that tax obligations are legally non-delegable. Even when a taxpayer uses advisors, the ultimate responsibility for compliance remains with the taxpayer.
The Supreme Court also noted that advisors could be considered accomplices if they knowingly contribute to a tax offense. However, this does not absolve the taxpayer from criminal liability.
Disproportionate Reaction and Taxpayer Responsibility
Institutions, including tax authorities and courts, can sometimes react strongly, even when a taxpayer’s strategy is technically compliant under existing tax regulations. In many cases, the taxpayer chooses the most efficient approach allowed by law rather than acting contrary to it. If authorities are uncomfortable with the outcome, a fairer approach would be to amend the regulations instead of attributing a criminal offense to someone who followed the law.
High-profile cases highlight that responsibility ultimately rests with the taxpayer. Shakira tax evasion and Cristiano Ronaldo’s tax issues demonstrate that even when advisors are involved, the taxpayer remains accountable.
Practical Advice for Taxpayers
In any case, given all the above, you should take into consideration the following advice: You should always request from your tax advisor to properly document his advice and recommendations and duly warn you of the risks that may be incurred. Otherwise, you might be assuming a considerable risk.
Mariano Roca is a tax and private client practitioner focused on corporate and individuals advice (specialized in tax, wealth and inheritance advice for HNWI). He began his professional career in Cuatrecasas Gonçalves Pereira from 1997 until 2012. In 2012, he joined KPMG from 2012 until 2015 where co-led the family business and private client practice in the Barcelona, Girona, Balearic Islands and Andorra offices. On January 2016 he joined 453 Law, leading as a partner the firm’s tax department. Mariano has been listed in Best Lawyers since 2013 and won the “Lawyer of the Year” award in 2014 and 2015. He has been once again recognized with the “Lawyer of the Year” award in tax practice for 2018.
