Criminalization of Unjustified Wealth Increase in Tax Matters: Comparative Analysis and Feasibility in Ecuador

Abstract

Unjustified patrimonial increase is a mechanism used in various tax systems to detect potential cases of tax evasion by identifying differences between declared assets and income. This article analyzes the feasibility of criminalizing this concept within the Ecuadorian legal system, based on the study of the Constitution, tax legislation, the Comprehensive Organic Penal Code, specialized doctrine, and comparative law (Peru, Colombia, and Spain). The research adopted a qualitative approach with a systematic literature review (PRISMA 2020). The methods of analysis-synthesis, exegetical, dogmatic, and comparative were applied. The results showed that unjustified patrimonial increase already has comprehensive administrative treatment in Ecuador (Internal Tax Regime Law, Regulations, Tax Code). The Constitutional Court, through Sentence No. 41-19-IN/25, requires that there be specific fraudulent actions to configure tax fraud. Comparative analysis shows that Peru and Spain separate the administrative sphere from the criminal sphere, while Colombia autonomously typifies the illicit enrichment of individuals with guarantees-related risks. It is concluded that unexplained increases in wealth constitute a useful indicator for auditing, but their autonomous criminalization would be incompatible with the Ecuadorian Constitution as it would compromise criminal legality, the presumption of innocence, culpability, and minimal intervention.