The tax crime and money laundering debate. Chamber Two of the Supreme Court weighs in
One of the most heated debates to take place in recent times in criminal law corners stems from the question of whether the offense of tax evasion should or should be treated as a predicate offense for the offense of money laundering.
In brief, the debate has spawned two opposing camps:
a) Those who hold that the offense of defrauding the public purse can in no event be considered a predicate offense for money laundering, given that the party that defrauds does not obtain anything that was not already among his/her assets.
b) Against those who consider that there is no reason why the tax offense cannot be a predicate offense for money laundering, on the grounds that the property that originates from a tax offense has a criminal origin and can therefore be the material subject of a money laundering offense.
It is not the purpose of this post to spell out or analyze in depth the abundant arguments which, at this stage of the controversy, have been put forward by both camps, but rather to point out the existence of a recent—and relevant—development that has burst into the debate, that is, the first Supreme court judgment on the issue. Both sides of the debate have been eagerly awaiting the first court ruling to provide a solution to the problem raised, which is no small matter given that, among other things and if the second of the camps prevails, the offense of tax evasion could become an offense that has no statute of limitations given that when money laundering is punished the mere possession of property that has a criminal origin could lead to the paradox that the statute of limitations for both offenses does not start to run until the possession is interrupted. The legal uncertainty that this interpretation creates is undeniable.
The judgment handed down by Chamber Two of the Supreme Court on December 5, 2012 has validated the theory that the tax offense can in fact be considered a predicate offense for money laundering. Relying on the fact that this decision has been reached in other neighboring countries, the court concluded that if during the criminal investigation the part of the property owned by the defrauder that constitutes the defrauded tax can be reasonably identified, then there may be an offense of money laundering.
End of story? The camp defeated in this first round not only has the consolation of the well-founded dissenting vote of the Honorable Antonio del Moral García, but also that the new wording given to article 305 of the Criminal Code by Organic Law 7/2012, of December 28, 2012 will most likely revive the debate and lead to the need to revisit the arguments put forward thus far.