Crime of fraud to Social Security and avoidance of payment of fees

The TS declares that the failure to pay Social Security fees does not, without further ado, be a fraud and, therefore, a crime. It is also necessary to carry out concealment maneuvers that may harm the inspection work.

The AP Segovia sentenced to 4 years in prison and a fine of 400,000 euros to a businessman as criminally responsible perpetrator of a crime of defrauding the Social Security, in its aggravated form, by evading more than 300,000 euros in security fees Social and joint collection concepts.

Consider the Audience that exists in the entrepreneur cheating fraud based on the following indications:

a) Changes in the company’s social name through the creation of 4 successive societies, whose objective was to conceal Social Security because with their new social names they were opened in the different Social Security CCC, being able to go unnoticed the fact that it is from the same businessman.
b) The fictitious operation of transferring their social participations to a worker, converting her into a single member and administrator while the entrepreneur was discharged as a worker although he exercised the functions of management and maintained effective control of the company. The recovery of the social participations for the price of € 1 constitutes a relevant indication of the simulation of the first transmission.
c) Not to register their workers until the breach of this duty was detected by the Labor Inspectorate.
d) Failure to present social accounts in the commercial register.
e) Systematic defaults, despite their knowledge of the debt and lack of intention to regularize their situation, which can be seen in the absence of formal proposals for regularization or postponement of the payment of installments.

Faced with the decision of the AP of Segovia, the employer filed an appeal alleging, among other reasons, that his fraudulent spirit has not been proven and that if he did not pay it was because he lacked liquidity. He also argues that his claim to change societies was not to hide anything but to get his suppliers to continue serving him and to be able to refloat the business.

The Chamber dismisses the argument, then, although it is true that the failure to pay Social Security contributions does not simply mean fraud if a concealment maneuver is not carried out that could harm the inspector’s work and that a fraudulent spirit is necessary whose existence has appreciated the room of instance from indications. In this sense, the Supreme Court recalls that the reality of the act and the participation of the accused can be established through signs whenever a series of requirements (plurality of evidence, which are accredited by evidence of a direct nature, peripheral to the data) occur. factual to prove, that are interrelated, rationality of the inference and expression of how the inference was reached in the instance). This being so in the judgment appealed, the TS ratifies the conclusions reached by the court of appeal as it was based on sufficient evidence, validly obtained and practiced.