The Second Chamber of the Supreme Court has confirmed the acquittal of the footballer Xabi Alonso and two of his tax advisors of a crime against the public treasury for the transfer of the exploitation of his image rights to a company based abroad.
The Court 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. In it, the court differentiates 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 by this room.
The ruling argues that these are not comparable cases, since those accused were convicted at first instance. In this case, the footballer was acquitted by the Provincial Court and his acquittal was endorsed by the Superior Court of Justice after evaluating 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, they add. .
The Supreme Court recalls the limits of the appeal of cassation as a procedural instrument to convert an acquittal sentence into a sentence of conviction. Thus, it points out that the rejection in the instance of the fraudulent nature of the contract for the transfer of image rights to the Kardzali entity and 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.
And he points out that "...when defining the portion of unfairness encompassed in article 305 of the Penal Code, between the simple omission of the tax declaration and the creation of a corporate framework to hide income, there are intermediate situations that should not make us lose the reference that that precept requires fraudulent conduct, without whose concurrence the subjective type collapses and the typical structure no longer offers an adequate framework for subsumption.”
According to this idea, “those actions, unrelated to any purpose of concealing income, should be considered atypical, in which what is at stake is not the accreditation of a fraudulent intent, but rather a legal controversy between the Treasury inspection and the taxpayer. "which understands that the current regulatory framework allows for a more beneficial tax settlement."
The ruling of the TS responds to the complaint of the State Attorney's Office that the Court did not opt for the technical reports offered by the official experts, AEAT officials arguing that "no anomaly can be detected in the fact that the Court attributes greater credibility to the expert opinion offered by the defense, compared to what has been called the official expert opinion. Furthermore, it should be considered a symptom, unfortunately rare, of proximity to the principles of contradiction and the right of defense that act as true legitimizing sources of the criminal process.” The contrast between the reasoning of the Treasury experts and those of the party is, for the court, “more than healthy from the perspective of the right to a process with all guarantees.”
