El fraude fiscal como delito previo al blanqueo de capitales

Resumo

This legal opinion paper examines the possibility that tax fraud (article 305 of the Penal Code, CP) in general, and tax avoidance in particular, may constitute a prior offence for the purpose of money laundering (article 301of the Penal Code, CP).To this effect, I am going to analyze the Supreme Court Decision 974/2012, of December 5, (EDJ 2012/298612), also known as STS "White Whale", as this was the first sentence issued by the Supreme Court in relation tothe legal question raised. This legal question has required an analysis of the problem of criminal activity prior to money laundering, from which I have been able to deduce that there is effectively no legal impediment to being able to consider tax fraud as a prior offence for the purpose of art.301of the Penal Code, CP.Nevertheless, there are a number of material arguments, as will be shown below, capable of refuting this question. In any case, the greatest problems arise when analyzing the issue of self-laundering, as in the "White Whale" case, where the purpose of concealment or cover-up is raised as an essential element forthe acceptance of its existence, and therefore, its punishment. As a consequence of it, in these supposed cases of self-laundering, it becomes necessary to reformulate the legal question raised, since at this point, the essential question is not whether the tax offence can be a prior offence to money laundering, but rather that the determining factor is how to solve the concurrence of both crimes in the same criminal procedure. This isasolution that involves accepting the existence of acontest ofcrimesor rules, which depends on whether or not the above-mentioned purpose of concealment or cover-up exists, to the exclusion of the possibility of observing a continuing money laundering offence