The National Court exempts from paying 9.4 million in taxes to a leader of the wind plot for a bureaucratic error

A bureaucratic problem with the Tax agency has allowed Alberto Esguevaexalted position in Castile and Leon with the PP and for which Anticorruption asks for 12 years in prison in the wind corruption plot, is free to pay 9.4 million euros between taxes and sanctions. The Treasury fined two of its companies for VAT on operations with a subsidiary of Iberdrola and the company Preneal. Esgueva sold them their shares for 50 million, according to the Treasury, "without valid economic reasons", in exchange for streamline permits. The Esgueva companies turned to the National audience, which has proved them right. In two sentences, concludes that the inspection was carried out by the Tax Agency's delegation in Valladolid despite the fact that the firms were based in Madrid and that this contaminated the entire process. There are more pending procedures that, if followed the same path, raise the number of taxes and fines to 20 million, according to sources in the case. Treasury will go to the Supreme but the defense can try to annul all the accusation against Esgueva.

On December 30, 2014, the Tax Agency in Valladolid sent a report to the prosecutor's office. The inspection had analyzed several wind energy companies in Castilla y León and had detected a pattern that it considered could be a crime. In short, the groups that wanted to invest in Castilla y León had to first form a vehicle company with local officials, especially Alberto Esgueva –at that time in the Ministry of Economy–, and when they got the permits for the wind farm, they repurchased it with enormous benefits for them. Thus, according to the report, 110 million euros were moved.

That report was the beginning of a macro-case of corruption in the community that is about to go to trial. anti-corruption ask for prison for those responsible, among whom is the former Economy Minister Tomás Villanueva (now deceased), his right-hand man Rafael Delgado, and Alberto Esgueva. Between 2004 and 2006 he was CEO of the public company Excal, in charge of helping companies internationalize and dependent on the Ministry of Economy, which approved wind farms.

The system began to operate in 2004. Of the 110 million that moved in that system, the Esgueva companies were among the most benefited, always according to the Treasury.

Esgueva was the owner and administrator of a firm called Intercatia, which absorbed another company of his, San Cayetano Wind. Iberdrola created, together with San Cayetano Wind, a shared company, Energía Global Castellana (60% of Iberdrola and 40% of San Cayetano). In 2009, with the wind farms already approved, Iberdrola bought Esgueva's stake in the business for 47 million euros. The amount did not reflect the true value of that participation and depended, according to Anticorruption, on "the megawatts assigned to the wind farms authorized to the company." Esgueva had established his company with 24,000 euros.

According to the accusation of the prosecutor Tomás Herranz, of Anticorruption, the system was "a pure artifice whose sole purpose is to allow the Esgueva brothers to obtain a considerable amount of money without having to take any action in return."

It was not the only company related to Esgueva pointed out by the Treasury. According to this, he owned 50% of Cronos Global, which through the same system entered seven million from Preneal, a renewables company.

The case is about to go to trial after in the fall of 2021 the instructor sent a group of former Iberdrola senior officials and managers to the bench. The report that sparked everything leaves a detail that has ended up being key. He points out that the San Cayetano company "had its fiscal domicile on Núñez de Balboa street in Madrid, where it was neither located nor known."

In addition to sending it to Anticorruption, the Treasury followed its tax checks and concluded that Intercatia, the successor to San Cayetano Wind and owned by Esgueva, had stopped paying VAT between 2007 and 2009. It claimed 7.3 million euros including penalties. The company did not pay VAT because it considered it a sale of shares, exempt from the tax, but the Treasury interpreted it as a provision of services by Esgueva to Iberdrola in speeding up permits, which is subject to VAT.

For the Treasury, "the entity developed an undeclared economic activity consisting of carrying out the necessary steps to obtain the licenses, permits and administrative authorizations necessary for the construction and commissioning of wind farms in Castilla y León" and that " would have tried to hide said activity” in the company together with Iberdrola.

The Central Administrative Economic Court accepted the arguments of the Treasury and the company then resorted to the National High Court. In his appeal, he argued that the inspection of Castilla y León was not competent to carry out that inspection because it was based in Madrid and that this caused him "defenselessness".

Throughout the procedure, the State attorney defended the actions of the Tax Agency. “The main operations of which there is evidence were carried out with Iberdrola Renovables de Castilla y León, a company domiciled for tax purposes in Valladolid; that San Cayetano Wind held shares in several companies with fiscal domicile in Castilla León and was the owner of real estate located in said community and that the operations were related to others carried out by the regional inspection unit of Castilla y León”.

A sentence of the contentious of the National High Court of the past May 19 agrees with Esgueva. He considers that "there is no doubt that the territorial competence to carry out the inspection actions would correspond to the Regional Unit of Madrid".

Although the regulations provide exceptions for a demarcation of a community to investigate a company from another, the ruling considers that here "they do not fit at all". It does not accept the agreement adopted by the Tax Agency to allow the inspection from Valladolid. "The incompetence is manifest from the moment there was no doubt about the fiscal domicile of the obliged tax entity, located in Madrid even before the inspection actions began, and the territorial jurisdiction that conditioned such domicile." The ruling agrees with the defense of Esgueva, exercised by Fernando Cantalapiedra and who did not want to comment on the news: "The consequence can not be other than the nullity of what was done by the territorially incompetent body."

The failure is a carbon copy of which in January 2021 He agreed with Cronos Global, a company of which Esgueva had 50%. Thus, this company got rid of paying 2.17 million euros (1.33 million for VAT not paid and 838,350 penalty). This means that the High Court has already canceled liquidations and fines worth 9.4 million, but that figures familiar with the procedure rise to 20 million with other pending lawsuits following the same criteria.

Esgueva was director of Excal between 2004 and 2006 and later went to warsaw, where he dedicated himself to the promotion of luxury buildings. in 2020 testified before the commission of inquiry of the autonomous courts and justified that he received 47 million from Iberdrola after investing 24,000 euros. “We were lucky enough to have a very good partner, which was Iberdrola, but nothing more. Because Iberdrola was number one at that time, number one in the world in wind energy. That was the key. But nothing else. It's not that we haven't invested; we invested the part that touched us”. The prosecution asks for him 12 years in prison for bribery and money laundering and a fine of 65 million euros. Only for former deputy counselor Rafael Delgado, he asks for a longer sentence, 42 years.

The Treasury appealed the first ruling to the Supreme Court and will do so with the second. Sources close to the case point out that in 2017, after these inspections, the Treasury regulated the extensions of powers in more detail and that it has managed to get the State Council to correct the error in similar cases. But the defense will insist that with the jurisprudence of the Supreme the annulment implies the prescription. The Treasury is encountering more and more problems of this type of competition in the face of the physical and digital mobility of companies.

Esgueva's defense can use the contentious rulings in the criminal jurisdiction. There is a basic principle of law known as the doctrine of the fruit of the poisoned tree according to which if the first test is annulled, the others fall. This is what the defenses of the evaders hunted with the Falciani list tried, for example. They pointed out that the evidence was of illicit origin because the computer scientist had taken it from HSBC without permission. But the Supreme Court endorsed that it was a valid test.

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