There is no Friday that we jurists, and especially tax lawyers, do not get a surprise, and rarely a pleasant one.

The last one is not entirely new. Certainly, I can verify that on December 26, 2008, I had to make a statement in the pages of this newspaper to evaluate the proposal of the Government -then in other hands, let us not forget- to raise the deadline of prescription of the crimes against the Public Treasury from 5 to 10 years.

Then it did not prosper, of course that the Popular Party -now in the government, let us not forget- should have contributed to avoid that modification. But clearly they have changed their mind, as in so many other things, why? Well, we do not know exactly because we do not know the text of the measure and its reasons exhibition , but we can speculate about it.

That project explicitly stated that it was in response to the Administration's inability to detect fraud at deadline. Now, given the context of the legislation that has been announced -without being specified, by the way, in most cases- it seems to be framed more in the context of a hardening of the measures to fight against fraud. That is to say, of "prevention" or "repression" as a measure to encourage voluntary compliance with tax obligations.

That is why the degree scroll that I put to my opinion of 2008, "against tax fraud... tax terror", comes to my mind. And the criticisms have to be the same again.

First of all, unless it is decided to also raise the statute of limitations of the Administration's right to liquidate the taxes, from the legal point of view it means that criminal proceedings can be processed and lead to prison sentences, for having failed to pay a tax that "should not have been paid". Well, if the debt or the right to liquidate it is time-barred, in law there is no such debt, is it admissible to go to jail for it? No meeting legal basis. And this violates the principle of typicity -that only crimes previously, expressly and clearly established in the Law can be judged and sentenced-, because if the criminal subject consists of "failing to pay", but it turns out that the tax debt on which a sentence can be passed can be built in the process itself trainer, it seems evident that this constitutional requirement is being contravened.

Other inconveniences occur to us, with respect to the process and its guarantees. Let us remember that judges and prosecutors are not usually tax experts; this is not a criticism but a truism contrasted by experience and usually recognized by the affected parties themselves. This should not be a disadvantage in itself. The problem arises when, in order to make up for this lack, the court trainer appoints the Tax Authorities as "judicial expert" - yes, the interested party as judicial expert! This happens habitually and the Supreme Court has had the audacity to endorse it. Any professional, Spanish or foreign, that I tell about it does not give credit . I do not think it is necessary to elaborate much on this violation of the right to effective judicial protection due to the lack of equality between the parties and the partiality of the court.

All this seems to us sufficiently serious that it should be approached with exquisite caution, at least the coherence in the legal configuration and application internship of this measure. In the fight against fraud, not everything is valid. If we leave in the way of the collection of a few million euros, and in the exemplary pretension of the penalty, basic pillars of the Rule of Law, the trip will not have been worthwhile.

I support the fight against fraud, and I have always done so clearly, but with the tools that the Law and the effectiveness of management provide. With the due guarantees and, above all, based on the legitimacy of the active subject of the tax relationship -the public administration creditor-, which is based on the configuration of a truly equitable tax system -formal justice with legislative diligence- and, moreover, an effective and scrupulously lawful application -material justice with full subjection to the law, previously and clearly configured and explained-. There is much to be said about this.