2018 Tax Calendar: The changes and the glitches.

The Ministry of Finance issued Decree 1951 of November 28, 2017 to set the 2018 tax calendar. However, there are at least 3 articles of said decree that have problems of outdatedness for not taking into account all the changes introduced with Law 1819 of 2016.

Last November 28, 2017, the Ministry of Finance issued its Decree 1951 to reissue the entire Section 2 of Chapter 13, Title 1, Part 6, Part 6, Book 1, of DUT 1625 of October 11, 2016, thus setting the tax schedule for national taxes for 2018.

Said section 2, which until November 28, 2017 covered articles 1.6.1.1.13.2.1 through 1.6.1.1.1.3.2.56, now remained comprising only articles 1.6.1.1.13.2.1 through 1.6.1.1.1.3.2.49. In the new versions of said articles, some novelties stand out, such as the following:

a. Instructions for filing the annual informative return of those responsible for the simplified INC regime (form 315) are no longer contemplated, something they had been doing since taxable year 2013 by instruction of article 6 of Decree 803 of April 2013, which is still compiled in article 1.3.3.3.7 of DUT 1625 of October 2016. In this regard, it should be noted that the Dian, in its Concept 17806 of July 6, 2017, when interpreting the new article 512-14 of the ET (created with article 206 of Law 1819 of 2016 and in which it was only provided that those responsible for the simplified regime of the INC must comply with the same obligations of article 506 of the ET, which applies to those responsible for the simplified VAT regime), indicated that the rule of Article 6 of Decree 803 of 2013 had lost its validity and therefore those responsible for the simplified INC regime are no longer obliged to continue filing the informative return annually.

Consequently, it is understood that the only informative declarations required from such taxpayers are those for the taxable years 2013 through 2016. In any case, it is important to highlight that the requirement made at the time through Article 6 of Decree 803 of 2013, which obliges all those responsible for the simplified regime of the INC to file an informative return, was something that violated the rules of the Tax Statute since a simple decree could not require informative returns. Tax returns, even if they are simply informative, can only be established by means of a law.

“they shall have until May 25, 2018 to deposit in the respective trust the monies they have committed for such works, and therefore they shall also have until that same date to file their income tax return for the taxable year 2017”

b. This time, in the new versions of articles 1.6.1.1.13.2.22 to 1.6.1.13.2.24, it is being indicated that legal entities (whether or not large taxpayers) that between January 1 and March 31, 2018 carry out the procedures of Decree 1915 of November 23, 2017 to avail themselves of the figure of works for taxes of Article 238 of Law 1819 of 2017 and submit to the Agency for Territorial Renewal -ART- the request to link a portion of their income tax for the taxable year 2017 to said figure through modality 1 mentioned in the decree, they will have until May 25, 2018 to deposit in the respective trust the monies they have committed for such works, and therefore they will also have until that same date to file their income tax return for the taxable year 2017 and pay the balance that may correspond to them for the first and second installment (in the case of large taxpayers), or the first installment (in the case of those that are not large taxpayers).

In any case, if the ART does not accept their request to link to the figure of works in taxes for not complying with all the requirements of Decree 1915 of 2017, and additionally the taxpayer had not filed their return within the deadlines of articles 1.6.1.1.13.2.11 and 1.6.1.1.1.3.2.12 (which indicate that the normal due dates of the return will elapse between April 10 and May 8, 2018), the taxpayer will have to file his return out of time by settling the respective penalty for untimeliness plus late payment interest on the first and/or second installment. However, if the ART rejects the request for linkage to the figure of works for taxes for other different reasons (for example, because the quota of works to which taxpayers could be linked with the figure of works for taxes was completed), the taxpayer may file its return and pay its first and/or second installment, without penalties or interest, no later than May 25, 2018.

Defects in the text of the 2018 tax calendar.

When studying the new versions of the articles of DUT 1625 of 2016 that were modified with Decree 1951 of November 28, 2017 and that will regulate the 2018 tax calendar, it is important to highlight that there are also at least three articles in which the following defects are detected:

a. In the new version of article 1.6.1.1.13.2.42, the same text that previously occupied the place of article 1.6.1.13.2.45 was left again; therefore, the following is still read in said regulation:

“Article 1.6.1.1.13.2.42. Obligation to issue certificates by the sales tax withholding agent. Sales tax withholding agents shall issue a certificate for the withholdings made, within fifteen (15) calendar days following the two-month period, four-month period or year in which the withholding was made, complying with the requirements set forth in Article 1.6.1.1.12.13. of this Decree. In the case of sales tax withholdings assumed by persons responsible for the common system for operations carried out with persons responsible for the simplified system, the certificate shall contain the express statement on the date of the respective declaration and payment of the withholding. When the beneficiary of the payment requests a certificate for each withholding practiced, the withholding agent shall do so with the same specifications of the bimonthly.”

“it is a rule in which not all the necessary updates originated by the changes that Law 1819 of 2016 introduced to articles 437-2 and 600 of the ET” In this regard, it is clear that this is a rule in which not all the necessary updates originated by the changes that Law 1819 of 2016 introduced to articles 437-2 and 600 of the ET have been made, rules in which it is indicated that there are no longer annual VAT returns or VAT withholdings assumed for operations with natural persons of the simplified VAT regime.

b. In the new version of article 1.6.1.13.2.44, the same text that previously occupied the place of article 1.6.1.13.2.47 was retained; therefore, this rule continues to read: “Article 1.6.1.13.2.44. Form of filing tax returns. The filing of tax returns in banks and other authorized entities, as well as the returns filed through electronic computer services, shall be made by filling out the official forms prescribed for such purpose by the Director of the Special Administrative Unit of the National Tax and Customs Directorate-DIAN.

The annexes, proofs, reports, certificates or additional documents shall be kept by the taxpayer for the term of finality of the income tax return and complementary tax return.

In the case of documents supporting VAT and withholding tax returns, the obligation to keep the documents, information and evidence [shall be] for the term of the finality of the income tax return for the same period.

In the case of non-taxpayers, both taxpayers and non-filers of income and assets, who are VAT withholding agents and/or taxpayers, the term of conservation of the documents, information and evidence is five (5) years, in accordance with the provisions of article 632 of the Tax Statute”.

In this regard, it happens that all the above underlined sentences were only valid until December 2016 while the following version of Article 46 of Law 962 of July 8, 2005 was in force:

“Article 46. Rationalization of the conservation of supporting documents. The period of conservation of information and evidence referred to in Article 632 of the Tax Statute, shall be for the period that elapses until the income tax return supported by the documents set forth therein is final. The conservation of information and evidence shall be carried out at the main domicile of the taxpayer”. However, such rule was amended with article 304 of Law 1819 of 2016 and now reads as follows: “Article 46. Rationalization of the conservation of supporting documents. (amended with article 304 of Law 1819 of 2016) The period of conservation of information and evidence referred to in article 632 of the Tax Statute, shall be for the same term of the finality of the corresponding tax return. The conservation of information and evidence shall be carried out at the main domicile of the taxpayer.” As a consequence of the above, it is clear that the text the new version of article 1.6.1.1.13.2.44 does need to be modified to adapt it to the new version of article 46 of Law 962 of 2005.

c. After Law 1819 of 2016 added to the Tax Statute the new article 512-14, establishing that those responsible for the INC common regime must comply with the same obligations of those responsible for the VAT common regime, the Dian issued Concept 017357 of July 04, 2017 to indicate that as of January 2017 those responsible for the INC common regime are not required to file their bimonthly returns in zeros. The above being clear, what is observed is that in the new version of article 1.6.1.1.13.2.32 of DUT 1625 of 2016, in which the 2018 calendar for the bimonthly declarations of the common regime of the INC was set, it was necessary to include a text that was similar to the one included in paragraph 3 of article 1.6.1.1.13.2.30 (with the deadlines for bimonthly VAT returns) and in paragraph 1 of article 1.6.1.1.1.3.2.31 (with the deadlines for quarterly VAT returns). Those paragraphs include the following instruction:

“Those responsible for the common regime are not obliged to file the sales tax return in periods in which they have not carried out operations subject to the tax or operations that give rise to deductible taxes, adjustments or deductions under the terms of the provisions of articles 484 and 486 of the Tax Statute.”

Source: www.actualicese.com