Shakira has avoided going to trial (and jail if convicted) thanks to the agreement reached at the last minute with the Prosecutor’s Office and the rest of the accusations. In exchange, he agrees to acknowledge that he committed tax fraud in Spain and pay a penalty of 7.3 million euros, plus a fine of 432,000 euros in lieu of the prison sentence. It should be remembered that, on his day, he already paid the more than 14.5 million euros of tax debt that the Tax Agency claimed from him, thus repairing the damage caused to the Spanish public treasury.
In total, the singer has finally deposited more than 22 million euros into the public coffers. According to her statements, she has preferred to close the case and be able to move on with her life, although she considers herself innocent and her lawyers were convinced of having a winning case. However, the truth is that there are no winners or losers until the sentence is passed, also on this occasion.
Where did Shakira live?
The case of the best-selling Colombian singer basically boils down to establishing whether your tax residence During the years 2012, 2013 and 2014 she was located inside or outside Spain, which would determine whether or not she was obliged to pay taxes as a resident.
In accordance with Spanish legislation, natural persons who have their habitual residence in Spanish territory are subject to personal income tax and wealth tax, with both taxes being required in their entirety regardless of where their assets are located.
In this way, not only Spanish nationality is the factor that can determine the obligation to contribute to the Spanish Treasury, but also effective residence in Spanish territory, even without having said nationality.
In this sense, a person is considered to be a resident in Spanish territory when any of the following circumstances occur:
Stay more than 183 days of the calendar year in Spanish territory.
That the main nucleus or base of its activities is located in Spain or has economic interests directly or indirectly.
That the spouse not legally separated and the minor children who depend on this natural person habitually reside in Spain.
If none of these circumstances occur, such person will not be considered a resident in Spain.
Equality of obligations
During the trial that was ultimately not held, the Prosecutor’s Office sought to demonstrate that between 2012 and 2014, the singer had resided more than half of each year in Spain, where, in addition, she had her marital home with her now ex-partner, the footballer Gerard Piqué, and where he had his first child in 2013 (the second was born at the beginning of 2015, also in Spain).
Despite the artist’s proven comings and goings to different countries for professional reasons, the number of days in Spain – plus the residence of her immediate family in Barcelona – made it very difficult for Shakira to escape being considered a habitual resident in Spain. during those exercises.
Once it was established that her habitual residence was in Spain, Shakira would not only be obliged to pay personal income tax and wealth tax in the country and on all her earnings and assets regardless of where they were located. Furthermore, the Spanish Treasury could investigate and verify her activities and businesses, regularizing her statements in the event of any suspicion of irregularities or concealments. Come on, the same as with any other Spanish citizen or resident.
Other known cases
Comparisons have been sought with the cases of Sito Pons y Xabi Alonso, who won their cases against the Treasury. The first because he did demonstrate that he did not reside in Spain during the years investigated, so he was not obliged to pay taxes here. And the second because the contract for the transfer of the footballer’s image to a company located in Madeira whose benefits he timely declared was not considered fraudulent.
But it could also be compared with the condemnatory cases of Leo Messi, for transferring its image rights to a company located in the tax haven of Belize and whose profits it did not declare; or that of Arantxa Sánchez Vicariowho unsuccessfully attempted to avoid payment to the Spanish Treasury by claiming that he resided in Andorra.
Beyond each specific house and its result, citizens’ reading of cases like Shakira’s can lead to the belief that the treatment of the Treasury and justice is not the same for everyone and that the wealthiest people They can avoid going to prison, precisely because they have more economic resources.
Certainly, the application of art. 80 of the Penal Code can be interpreted as discretionary since it allows, exceptionally, the suspension of prison sentences taking into account the personal circumstances of the prisoner, the nature of the fact, his conduct and, in particular, the effort to repair the damage. In this sense, the suspension will be conditional on both effective repair of the damage and compensation for the harm caused.
However, at this point, the idea that all these agreements comply with the law and that justice is obliged to recognize them should be reinforced, in addition to the fact that it is never worth it not to comply with the Treasury. Otherwise, the tireless work of the Treasury inspectors and the Prosecutor’s Office in pursuing such harmful tax fraud is called into question.
Shakira’s song says that she takes a plane and doesn’t come back here, that she doesn’t want another disappointment, but the truth is that she has another case open before the Spanish justice system for another alleged tax crime committed in 2018. This time for the alleged fraudulent use of a network of companies to simulate the transfer of their image rights to instrumental companies and thus avoid paying taxes.
It may clearly not be what it sounds like, and we’ll see if the fault is once again yours, what it does seem is that the fault in these cases was not the monotony.
The post first appeared on theconversation.com