Borja Thyssen and Blanca Cuesta have once again won their battle with the tax authorities. If four years ago they managed to get the justice system to prove that they had not faked their residence in Andorra to avoid paying taxes, now the 15th Criminal Judge of Madrid, Sonia Agudo, has acquitted them of a second case for an alleged tax fraud for a total of 336,417.89 euros related to the transfer of shares in the company linked to their villa in Ibiza. They were each facing one year in prison after the prosecution reduced its initial request for a three-year sentence.
The sentence to which El Periódico de España, of the Prensa Ibérica group, has had access, is subject to appeal before the Provincial Court of Madrid and is dated October 9. The judge concludes, based on the expert reports provided by the defense of the aristocrats, that the evidence provided by both the Prosecutor’s Office and the State Attorney’s Office does not prove that Thyssen and Cuesta used the transfer of their shares in the company to transfer their shares in the company Cas Capetó S.L. -whose main asset is a villa they acquired in Ibiza- to simulate a legal business and hide profits from the Public Treasury.
“In the present case, the existence of a reasonable doubt (…) prevents a conviction,” adds the magistrate, who considers that the evidence analyzed allows the conclusion that the marriage paid the corresponding quota for the increase in assets obtained in the IRPF of 2010. The operation, therefore, “cannot be considered an operation aimed at concealing a taxable event”, the resolution states.
Charges reduced
The facts were investigated by the Juzgado de Instrucción number 4 of Pozuelo de Alarcón, which brought the matter to trial on October 3. At the beginning of the hearing, the Provincial Prosecutor’s Office of Madrid requested three years’ imprisonment and a fine of one million euros for Borja Thyssen and his wife Blanca Cuesta, although this request was later lowered to one year for two different reasons: the undue delay and the elimination from the facts of the indictment of part of the allegedly fraudulent transactions, specifically those included by the Treasury in its inspection relating to the so-called The Caravaggio Trust.
The indictment recalls that on February 26, 2010, the transfer of the shares of Cas Capetó took place. The participants were Borja (holder of 50% of the shares), Blanca (holder of 40%) and the company Caribean Breeze (holder of 10%), in favor of other Dutch companies: Princess Four BV, Hermosa Beach Holding BV and Martínez Investments BV. The main asset of Cas Capetó consisted mainly of a house in Ibiza, which had no hired personnel and no economic activity whatsoever, and the total price paid for this operation amounted to 9,700,000 euros, which were paid into the bank account held by Borja.
According to the facts declared as proven in the sentence, both Borja and his wife filed their declarations on time IRPF in the form of joint taxation, in which they declared a gain of 2.2 million euros from the sale of shares in Cas Capetó SL. On this point, the sentence rejects that the real profit obtained was 3.7 million, as the Treasury maintained, and that “knowingly and with the intention to defraud” they hid a profit of 1.5 million from the tax authorities.
Works in the villa
The judge has also assessed the last words of Blanca Cuesta during the trial, in which she stated that it was necessary to to do a lot of works in the chalet of Ibiza after its acquisition, among them those related to improve the security of the property. As well as the fact that part of the extreme facts by the tax inspection were withdrawn from the accusation made by the Prosecutor’s Office.
The judge also recalls in her sentence that the Constitution enshrines the right to the presumption of innocence. She adds that the legislator does not intend to “make it difficult” to convict anyone or to ask for impossible situations of certainty, but rather to reach the “conviction of those who have to judge through objective, direct or indirect evidence the reality of what happened” beyond reasonable doubt“.
It also cites the jurisprudence of both the Constitutional Court and the Supreme Court on the principle of in dubio pro reo -in case of doubt, acquittal- as a general principle to add that, “in the present case, the existence of a reasonable doubt (…) precludes a conviction“.
According to the thesis of the Tax Authorities, the debt acknowledgment of Caribean Breeze of 600,000 in favor of Borja Thyssen was not duly accredited. These affirmations were argued to the contrary by an expert report provided by the defense, stating that the Treasury Department made an error when relating the credit that Borja Thyssen transmitted with the contributions carried out once the participation in Cas Capeto S.L. was acquired and the Balearic inspection report with reference to the 2005 fiscal year, whose owner was the former owner of the property.
As a conclusion of all this, it is stated that the capital gain of just over 280,000 euros obtained by Caribbean Breeze on the occasion of the sale of its shares in Cas Capetó S.L. for an amount of approximately 1.3 million euros in February 2010 “only to her it belongs and only to her it is imputable, without it being dragged to the liquidation of the IRPF of the partners of the partnership”.
The judge accepts these arguments and, in addition to affirming that the transfer of shares was lawful, concludes that the Thyssen couple paid the corresponding amount for the capital gain obtained in the IRPF of 2010, so that the operation “cannot be considered an operation aimed at hiding a taxable event and thus defraud the Treasury”. It also considers it relevant to note that all the operations were carried out before a notary and the couple appears as partners, without interposing third parties.
In December 2019, Borja Thyssen already achieved a first victory against the Treasury, when he was acquitted in another case related to the payment by Hola magazine of 1.4 million for the exclusive about his wedding with Blanca Cuesta that was charged through a company in Nevada (USA) owned by Thyssen, with Swiss passport and official residence in Andorra. Subsequently, the son of the Baroness dissolved that company by taking advantage of the tax amnesty. In October 2020, the Provincial Court of Madrid confirmed the file, which meant to ratify that Borja Thyssen had not faked his residence in the Pyrenean country.
For the full article, please visit Diario de Ibiza website here.