In the summer of 2020, the newspaper El País published a very long chronicle in which it detailed how the Treasury followed in Shakira’s footsteps for years to retrace the steps of the singer and check how many days she spent a year in Spain, where she said she did not reside – her According to her, her address was in Nassau, the capital of the Bahamas Islands—and therefore she did not pay her taxes… until the Tax Agency reconstructed her life of the last four years to claim the amounts defrauded, of between three and seven million euros per year.
Perhaps it was then that many of us consolidated suspicions or some vague beliefs regarding the ways that the Tax Agency has to determine almost any aspect of the life of every citizen in order to know if, in this case, they live where they claim to have their fiscal residence. . A confrontation in which he has too many ways to win to stand up to him and that it turns out well.
instagram is treacherous
“The Treasury has the authority to collect information from third parties both in Spain and abroad,” explains Almudena Medina, director of the tax area at the Ceca Magán law firm. “You can request information from the tax administration of other countries and cross information provided by third parties in your statements.”
In cases like Shakira’s, in which her profession and her high purchasing power force her to travel for many weeks a year and allow her to rest during vacations in exotic places, having this ability to request tax information from other countries is essential. . However, it is also important to have information from local companies, as happened to the Colombian one.
Her client file at her trusted hairdresser, the recording dates of the Mandinga studios or even the information provided by staff from her children’s school, who revealed that she was the one who used to take them and pick them up, as well as who attended the meetings of parents, it was decisive. “The Treasury has a huge amount of information and can access much more. It can resort to all kinds of evidence, public and private. It has the authority to collect information from third parties both in Spain and abroad,” summarizes Almudena.
Some of the key information is also technological: phone records, banking information, and social media activity come into play. “The complete list of calls and account movements is usually part of the inspection file. Together with the credit card data, they are usually quite indicative of where the subject is at all times. In any case, to have a strong case , The Treasury needs to have multiple evidence pointing in the same direction. It is the joint assessment of the evidence that allows the Treasury to place the subject in one country or another. In any case, what the Treasury is not going to allow is that the subject do not pay taxes in any country, that is tax stateless”, says Almudena about this use of information linked to technology.
Paying with a card is equivalent to leaving a trace that, in the case of defrauding the Treasury, allows it to accurately quantify the days in which you have been in Spain. And the total sum is growing. These payments, if they are made in other European countries, also leave breadcrumbs for the Spanish Treasury, since there is a mutual assistance framework to cross-check this information in order to prosecute tax fraud. The government’s plan to phase out cash has a lot to do with this.
“Social media is a testing niche“, continues the lawyer. And not only those of the investigated person: also those of other third-party accounts that help to indicate the address of the investigated person’s country of residence, which will be more easily located to the extent that he is more famous, and therefore more interest arouses among third parties to highlight their presence in a specific place on a social network, for example, with tweets like “I have a (famous person) two meters away in Puerto Banús” or similar publications.
A “web spider” monitors more than 200,000 open websites to collect information on taxpayers
This practice has been common since 2015, when a section dedicated to the “digital economy” was published in the BOE, which explained how the tax administration could obtain information from the Internet to “discover hidden activities or goods subject to illicit trade” and uncover companies “which, under foreign appearance, are actually Spanish companies that use the Internet to try to avoid their tax obligations”.
For the networks, they spoke of identifying “behavior patterns that correspond to fraudulent activities”, and they would rely on a crawler that would index more than 200,000 web pages. With all this information, data would be crossed to find suspicious patterns.
In the case of information obtained from computers, it will be valid in actions carried out in companies, since private homes are legally protected and judicial authorization would be required. You can get to this extreme, but it involves more bureaucracy and time.
Those photos uploaded by third parties would be considered “indications” according to Almudena, but the validity of the origin would have to be proven to verify that they have not been manipulated. “They would be one more element to take into account, but it should be endorsed by other indications or evidence to reinforce its probative nature.”
In the case of celebrities, it may be the case of going to image banks, such as Getty, which has an extensive list of photographs in which he is seen in Barcelona in the case of Shakira, to request all images of the investigated person labeled with dates and places at the time of capture. The same as videos broadcast in the media or published on YouTube and the like. A priori, data shared privately will not be analyzable. That’s where private messaging comes in, like WhatsApp.
Then there is model 720, a tax that became mandatory in 2012 to declare assets and rights abroad and that has served in these eight years to detect unjustified capital gains that were followed by claims for the defrauded amounts and their corresponding fines. .
“An inspected person left an establishment and hid behind a car”
According to sources from the Tax Agency, data and evidence are also accessed such as electricity consumption (which determines the presence in a home of an investigated person, owned or rented, for a certain time), health care received in national territory, medicines dispensed in pharmacies, or even inspections of vehicle ITV in the name of the investigated, as well as all the data of close relatives. However, we are told that they cannot give many details “for obvious reasons of not giving information about how we investigate.”
Also from the Tax Agency they tell us some anecdotes when checking fictitious changes of residence, such as that of a citizen who theoretically resided in a foreign country and who was visited at his home in Spain, where he actually lived. When asked about the address where he lives, he took out his ID to read it, since he didn’t think of it since he didn’t really live there. Visits to these houses are a common practice, as well as to nearby neighbors and businesses to ask about the person being investigated. Many inspections are accompanied by computer technicians to do on-site audits.
In another case, another taxpayer was detected in an establishment in a Spanish city, something that is not an indication of anything since he was there on a trip… except for the fact that when the inspectors identified himself in that establishment, he left and left. tried to hide behind a car. Alarms activated. They also recall the case of some inspected persons who presented train tickets purchased years ago (“who keeps them?”, they point out from the AEAT), in order to justify trips to the supposed place of residence from Monday to Friday.
In this case, the inspectors could not prove it, but they suspected that they were never actually used notes, but bought to constitute proof for a possible inspection like the one that ended up being received.
183 days and many ways to show that you live in Spain
A similar case was carried out by Rafa Nadal in 2012, although without having to leave Spain: his companies were taxed in the Basque Country, where they had a special regime that allowed them to enjoy almost zero taxation, despite the fact that they did not carry out their management or their activities in that autonomy or in the Comunidad Foral de Navarra, with similar tax benefits. Treasury investigated hundreds of companies suspected of being based there but without having real activity in said communities. Among them, those of Rafa Nadal, who ended up changing their tax domicile to the Balearic Islands in 2012 after six years and regularizing the defrauded amounts.
Karel Mark Chichon, director of the Gran Canaria Philharmonic Orchestra, is being investigated for the same cause: his law firm maintains that he has his residence established in a Baltic country, the Treasury is questioning him because it considers that he lives in Gran Canaria, where he has his main job.
The Treasury considers anyone who spends more than 183 days a year in this country as a tax resident in Spain. That is, more than half of the year (182.5 days). Also to those who reside in Spain the main nucleus of their economic activities directly or indirectlyor those whose spouse is not legally separated and the minor children who depend on that person.
One of these causes that go beyond the 183-day rule, that of maintaining the main nucleus or the base of its economic activities in Spain, is what caused the Treasury to investigate the case of high-income citizens who transferred their residence to Portugal, with a very favorable regime for figures of this type, and that it was not even enough for them to spend more than half the year in the Portuguese country and be de facto residents there, having their business base in Spain. And in those cases… enter to investigate with all the tools that we have mentioned.
