IMPORTANT: This article was drafted in accordance with the regulatory framework and the status of implementation of the DAC8 Directive in effect at the time of its publication. The taxation of cryptoassets, the reporting obligations of crypto service providers, the applicable tax models, the penalty regime, surcharges, interest, and potential criminal risks must now be reviewed in accordance with current regulations in Spain and the European Union, as well as the national transposition and applicable administrative criteria at any given time.

The entry into force of the DAC8 Directive marks a turning point in the tax regulation of cryptocurrencies in Europe. And with it comes a new landscape of penalty risks for those who fail to bring their tax compliance up to standard in a timely manner.

This article analyzes the legal and economic consequences of the most common non-compliance issues, the applicable penalty regime, and the legal defense strategies available to taxpayers and crypto sector companies.

The Most Frequent Non-Compliance Issues Under DAC8

Experience in tax advisory shows that certain errors are systematically repeated when taxpayers operate with crypto-assets. With DAC8, these errors acquire a new dimension of risk.

✔ Failure to correctly declare crypto-assets

The most common error remains the absence of declaration or the partial declaration of cryptocurrency operations. Many taxpayers believe that, since there is no conversion to euros, there is no tax obligation. This interpretation is incorrect.

Swaps between cryptoassets, transactions involving stablecoins, and trades on DeFi platforms give rise to tax obligations even if they do not result in traditional currency. As we explained in our article on which cryptocurrency transactions are subject to tax oversight under DAC8, each type of transaction has specific tax implications.

✔ Errors in the tax classification of operations

Another common non-compliance issue is the incorrect classification of the nature of income. Staking is not the same as lending, nor is a donation the same as a sale. Each operation has its specific tax regime.

DAC8 obliges intermediaries to report detailed information on each type of operation. The Tax Agency will have precise data to cross-reference the classification declared by the taxpayer.

✔ The myth of foreign platforms

There is a widespread belief that operating with exchanges located outside the European Union guarantees tax opacity. The DAC8 regulation completely dismantles this idea.

Crypto intermediaries with activity in the EU, regardless of their headquarters, are obliged to report. Furthermore, the directive provides for information exchange mechanisms with third jurisdictions.

Discrepancies between declared and reported data to the Tax Agency

One of the most serious risks arises when there is a discrepancy between the information the taxpayer submits in their declarations and the data that the Tax Agency receives from intermediaries through DAC8.

This discrepancy automatically triggers verification procedures and puts the taxpayer in a defensive position from the outset. As we analyze in detail in our article on how the Tax Agency will use DAC8 data, these information cross-checks are increasingly sophisticated.

✔ Poorly planned corporate structures

Some taxpayers have established instrumental companies to channel crypto-asset operations, without adequately considering the tax implications of these structures.

A holding company without real economic substance, or a structure designed solely to defer taxation, may be classified by the Tax Agency as simulation or fraud of law.

✔ Confusion between ownership, custody, and beneficial owner

DAC8 requires reporting not only the formal owner of an account but also the beneficial owner of the crypto-assets. This distinction creates problems when there are shared custody structures, multi-signature wallets, or collective investment schemes.

The Tax Agency may consider that the taxpayer has concealed their status as beneficial owner if the reported data does not match the economic reality of the operation.

Applicable Penalty Regime

Non-compliance with tax obligations related to crypto-assets can lead to consequences at different regulatory levels.

Sanctioning regulatory framework

Penalties for non-compliance related to DAC8 are based on:

• The General Tax Law (LGT), which regulates the general regime of tax infringements and penalties
• The specific regulations for Personal Income Tax (IRPF) and for Corporate Income Tax
• The provisions of the DAC8 Directive itself and its national transposition
• The Criminal Code, in the most serious cases

Formal infringements

Formal infringements are those that affect information, documentation, or collaboration obligations with the tax administration.

In the context of DAC8, formal infringements include:

• Failure to submit informative declarations when required
• Submitting them late
• Including incorrect or incomplete data in declarations
• Failure to respond to information requests from the Tax Agency

Penalties for formal infringements are generally fixed or proportional fines, which can range from 150 to 6,000 euros for each omitted or inaccurate data, depending on the severity and recurrence.

Serious infringements

Serious infringements imply more reprehensible conduct and have significant economic consequences.

They are classified as serious:

• Failure to pay the tax debt that should result from a self-assessment
• Improperly obtaining refunds
• Improperly requesting tax benefits
• Improperly determining or crediting positive or negative items or tax credits

Penalties in these cases are proportional fines ranging from 50% to 150% of the unpaid amount, depending on the existence of concealment, fraudulent means, and other aggravating circumstances.

Surcharges and late payment interest

In addition to penalties, the taxpayer must face surcharges for late submission (from 5% to 20%, depending on the delay) and late payment interest, currently at 4.0625% annually.

These concepts accumulate and can significantly increase the final cost of regularization.

Retroactive regularizations

DAC8 facilitates the Tax Agency’s access to information from previous fiscal years. Although the directive recently came into force, the reported data may refer to operations carried out since 2024.

The Administration may initiate verification procedures for non-prescribed fiscal years (generally, the last four years). In these cases, the tax debt, penalties, surcharges, and interest are calculated cumulatively.

When is there criminal risk?

Not all tax non-compliance has criminal relevance. But in certain serious cases, administrative infringement can lead to a procedure for tax crime.

The threshold for tax crime

According to the Spanish Criminal Code, a tax crime exists when the state, regional, provincial, or local Treasury is defrauded of an amount exceeding 120,000 euros per fiscal year.

This threshold is calculated on the amount of tax not paid or the refund improperly obtained, not on the total amount of cryptocurrency operations.

Subjective element: the importance of intent

For a tax crime to exist, objective non-compliance is not enough. Intent (dolo) must also be present, meaning deliberate intention to defraud.

The Tax Agency and, where applicable, the criminal jurisdiction particularly value:

• Whether there was deliberate concealment of information
• Whether fraudulent means were used (false invoices, simulated identities, opaque structures)
• Whether there were significant accounting anomalies
• Whether the taxpayer collaborated with the inspection or not

Voluntary regularization as a mitigating factor

Voluntary regularization before the Tax Agency notifies the start of inspection proceedings can significantly mitigate the consequences. In some cases, it even prevents the imposition of penalties.

However, this regularization must be complete, truthful, and accompanied by the payment of the tax debt, interest, and, where applicable, the corresponding surcharges.

Importance of prior advice

The existence of professional and documented tax advice can be decisive in excluding intent in borderline cases.

If the taxpayer can prove that they acted following reasonable technical criteria, even if these are ultimately rejected by the Tax Agency, the risk of fraudulent intent being appreciated is significantly reduced.

Legal Defense Against DAC8: Effective Strategies

Increased tax control over crypto-assets requires specialized legal defense. Strategies vary depending on the timing and nature of the conflict.

Preventive defense: before the requirement arrives

The best defense is one that avoids conflict. Preventive defense involves:

• Exhaustive review of declarations submitted in previous years
• Analysis of consistency between real operations and declared operations
• Identification of latent tax risks derived from crypto-asset operations
• Voluntary regularization of irregular situations before the Tax Agency acts

This approach allows correcting errors, completing information, and adjusting tax criteria at the most favorable time for the taxpayer. To understand what specific data the Tax Agency may already have, consult our analysis on what DAC8 is and how it changes cryptocurrency taxation.

Reactive defense: after notification from the Tax Agency

When the Tax Agency has already initiated a verification or inspection procedure, the strategy changes. In these cases, the defense focuses on:

• Detailed analysis of the scope of the procedure and the inspection’s powers
• Review of the legality of administrative actions
• Submission of supporting documentation and technical allegations
• Negotiation, when possible, of agreements with the Administration
• Challenging manifestly incorrect assessment proposals

Administrative appeals

Against a tax assessment, the taxpayer can file an appeal for reconsideration with the same body that issued the act, or an economic-administrative claim before the economic-administrative courts.

These appeals allow for the review of both the legal aspects and the facts of the case. They are especially useful when there are complex technical issues or debatable regulatory interpretations.

Contentious-administrative route

If administrative avenues are exhausted without a favorable outcome, recourse can be made to the contentious-administrative jurisdiction. This route is slower and more costly but allows for full judicial control of the administrative act.

The contentious-administrative courts have begun to rule on tax issues related to crypto-assets, establishing criteria that may be decisive in future cases.

Voluntary regularization strategy

When the taxpayer detects non-compliance before the Tax Agency initiates proceedings, they can opt for voluntary regularization.

This option allows for:

• Submitting supplementary declarations
• Regularizing previous fiscal years
• Reducing or avoiding penalties (depending on the timing of regularization)
• Normalizing the tax situation without waiting for an inspection

This strategy is especially recommended in the context of DAC8, given that the Tax Agency will have detailed information on past operations.

Conclusion: a structural change that requires strategic vision

The DAC8 Directive is not a minor technical modification of the European tax framework. It represents a structural change in the way Member States approach the taxation of crypto-assets, definitively placing them on par with traditional financial assets.

This move was inevitable. The exponential growth of the crypto sector, its increasing integration into the global financial system, and legitimate concerns about tax evasion and money laundering have forced regulators to act. DAC8 is the European response, aligned with similar international initiatives and consistent with the tax transparency strategy that the EU has been building for over a decade.

For those operating in the crypto ecosystem—as providers, investors, or companies—the key lies in understanding, anticipating, and adapting. The new regulatory framework does not penalize innovation or the legitimate use of crypto-assets, but it does demand compliance, transparency, and fiscally responsible management.

IN DIEM has prepared a series of articles on the impact of DAC8, so you can gain a deeper understanding of the specific reporting obligations faced by cryptoasset service providers and learn about the key differences between DAC8 and its predecessor, DAC7.

How can IN DIEM help you with the DAC8 Directive?

The entry into force of the DAC8 Directive represents a profound change in the tax framework applicable to crypto-assets in the European Union. The technical complexity of the rule, its cross-border nature, and its interaction with national laws mean that adaptation cannot be approached in an improvised manner.

In this context, having specialized legal advice is not just a measure of prudence, but a key element to ensure regulatory compliance and minimize tax and penalty risks. IN DIEM accompanies companies, investors, and operators in the crypto ecosystem in the understanding and practical application of DAC8, with a strategic and preventive approach.

Specialized legal advice on DAC8 and crypto-asset taxation

IN DIEM has experience in European tax law, regulatory compliance, and crypto-asset taxation. Our approach starts with an individualized analysis of each case, taking into account the type of operations performed, the client’s legal structure, and their exposure to the new reporting and automatic information exchange obligations.

In relation to the DAC8 Directive, our advice is oriented towards:

• Analyzing the specific impact of DAC8 on the client’s activity, whether as a crypto-asset service provider, investor, or company operating with digital assets.
• Identifying tax risks derived from possible discrepancies between the information that will be reported by intermediaries and the tax returns filed.
• Evaluating the adequacy of internal procedures, information systems, and operational structures to the new tax transparency environment.

Support for Crypto-Asset Service Providers (CASPs)

For crypto-asset service providers, DAC8 introduces reporting obligations that require significant technical, organizational, and legal adaptation. IN DIEM advises these operators on the interpretation of the obligations derived from the directive and on the preparation for their correct implementation.

This support includes, among other aspects, the review of customer identification processes, the analysis of tax information flows, consistency with other applicable regulations—such as MiCA or anti-money laundering regulations—and the anticipation of possible penalty risks.

Preventive advice for investors and companies

For individual investors and companies operating with crypto-assets, DAC8 implies a substantial increase in the level of tax scrutiny. The automatic receipt of information by tax administrations drastically reduces the margin for error in tax planning and reporting.

IN DIEM offers preventive advice aimed at reviewing the client’s tax situation before the full application of the directive, identifying possible contingencies, and, where appropriate, regularizing past situations within available legal frameworks. This approach allows for reduced exposure to audit procedures, penalties, and reputational costs.

A strategic approach to a new tax transparency environment

The DAC8 Directive should not be understood solely as a formal reporting obligation, but as a structural change in how crypto-asset taxation is supervised in Europe. Adapting to this new environment requires a strategic vision that combines regulatory compliance, operational efficiency, and legal certainty.

IN DIEM works alongside its clients to turn this regulatory change into an opportunity for consolidation and strengthening, helping them operate within the crypto ecosystem under a robust and transparent tax framework that is aligned with current and future requirements of European tax law.

Do you need advice on DAC8 or have you received a request from the Tax Agency?

Contact our firm to analyze your situation and design the best defense or regularization strategy.

At IN DIEM Abogados, we advise companies, digital platforms, and professionals affected by DAC8, taking action from the very beginning to identify tax risks, ensure regulatory compliance, and protect your position with the Tax Agency.

That’s where IN DIEM makes the difference.

If your company or digital platform may be affected by DAC8, having specialized legal advice is key to complying with the regulations and avoiding unnecessary tax risks. At IN DIEM Abogados, we analyze your case and help you act with confidence.

Contact us. We are here to help you.