Contrary to tax law behaviour, i.e. the illegal tax conduct may be criminal or administrative. If the offence is criminalized (contemplated) in the Criminal Code, it implies the existence of a tax offense or otherwise, of an administrative offense.
The same behaviour cannot be constitutive of both administrative offense and tax offenses. It is clear the General Tax Act to provide that where infringements could constitute a crime, the Administration should refrain from further proceedings until the judicial authority makes a final judgment; as it is to have the sanction of the judicial authority excludes the administrative penalty.
In other words, both the fiscal offense as well as the administrative offense requires the existence of an infringement of tax law. What happens is that offense can sometimes constitute as a crime. In that case we speak of the crime of tax fraud or in a more vulgar sense, a tax crime. Or it may not be constituted as any offense at all, in which case we speak simply of an administrative offense (or tax infringements, as opposed to tax offenses).
A fundamental difference between the two figures is that tax offenses are punishable even by way of simple negligence, while the tax offense requires, as we have seen, the occurrence of fraud.
If that fraudulent intent is not given, we will never be in the presence of a tax offense, however hefty the fee that hasn’t been paid or the tax benefit unduly enjoyed.
Similarly, even if the taxpayer has acted with full knowledge and intentionally causing a financial loss to the Treasury, if the quota defrauded does not exceed the amount of fifteen million pesetas, they will never assess the existence of a tax offense.
Even though there are important consequences for the taxpayer, the difference between tax offense and administrative offense (tax), it is purely formal and it affects the competent body to assess its existence and disciplinary proceedings.
While the existence of the tax offense is declared by the judicial body (the courts of justice), tax violations are assessed by the competent bodies of the Tax Administration (not judicial, but administrative). The disciplinary procedure must conform to the rules of criminal law in the case of crime and administrative law in the case of tax violation.
An administrative offense can never be punished with imprisonment, unlike what could happen with a tax offense.
If the Court does not assess to judge the performance of such a crime of a taxpayer, the case returns to the Administration for it to continue the disciplinary (administrative) procedure on the basis of the facts that have been proven in the judicial process.