New limitations in the treatment of indications of fiscal crime by the tax administration. Annulment of section 197.bis.2 of Royal Decree 1065/2007 by judgment of the Supreme Court of 25 September 2019

Abstract

In this work, we wish to highlight the difficulties encountered by the tax administration in informing the criminal court when it finds signs of crime after a final settlement or even after an administrative penalty has been imposed. The annulment by the Supreme Court ruling of 25 September 2019 of Article 197.bis.2 of Royal Decree 1065/2007 raises several questions. For
example, if its incorporation into the legal system was necessary, if a rule that was legally enforceable should provide for the possibility that this provision was accepted or if the power of the administration to report a possible offence has been definitively prohibited when the regularization proceedings have ended. In order to respond to these issues, the need for
prior legal authorisation is analysed, the effects on the principle of non bis in idem, the ownership of power to assess whether criminal offences are involved, the scope of the duty of denunciation by the tax administration and the effects of the aforementioned judgement.