Exogenous taxable year 2018: 9 last minute adjustments are introduced.

Resolution 000024 of April 9, 2019, with which adjustments were introduced to the exogenous information for the taxable year 2018, was included in the official gazette of April 16, 2019, which only circulated on the internet on April 23. The most important adjustment affects the preparation of formats 1001 and 2276.

After having announced it on March 7, 2019 as a simple draft resolution, the Dian finally issued Resolution 000024 of April 9, 2019 (signed by the director general in charge, Gabriela Barriga Lesmes), which was published on pages 5 to 7 of the Official Gazette 50928 of holy Tuesday, April 16, 2019 (which circulated on the internet only on Tuesday, April 23 of the same year), thus introducing 9 last minute adjustments to Resolution 000060 of October 30, 2017, the rule with which the exogenous tax information for the taxable year 2018 had been requested, and which had already been modified on two previous occasions. The deadlines for the timely delivery of such information began to expire on April 23, 2019.

Resolution 000024 of April 9, 2018 complied with introducing most of the adjustments that had been announced in the draft resolution published on March 7, 2019, including the following:

a. Paragraph 2 of article 14 of Resolution 000060 of 2017 related to the report of format 1014 v.2 to be prepared by trust companies with the detail of payments to third parties made during 2018, as a result of having managed resources of the autonomous patrimonies, was modified. Special instructions were added to the paragraph, indicating that, in case of having made payments for work income, they will only be reported in the 2276 v.2 format mentioned in article 34 of Resolution 000060 of 2017.

b. A new paragraph 13 was added to article 16 of Resolution 000060 of 2017, which is related to the preparation of format 1001 v.10, with the detail of payments to third parties made during 2018. The new paragraph established the following:

“Paragraph 13. Payments or credits on account reported for fees, commissions or services must correspond to those made to legal or natural persons, not including those associated with labor and pension income.”.

Said instruction only serves to ratify what had already been indicated in paragraph 12 of the same article 16 of Resolution 000060 of 2017, a rule in which it was indicated that payments or credits on account for “labor income” (i.e., for salaries, fees, commissions and services subject to withholding as income with the table of article 383 of the Tax Statute -ET-) would only be reported this time within the format 2276, and would not be reported at the same time within the format 1001 (something that did happen until the reports of the taxable year 2017).

c. A new paragraph 3 was added to article 22 of Resolution 000060 of 2017, related to the report of payments to third parties that is prepared in format 1056 v.10 by the general secretaries of the bodies that finance expenses with resources from the national treasury. The new paragraph established the following:

“Paragraph 3. The information to be reported in accordance with this article in Format 1056 Version 10, must not be reported in Format 1001 – Payments and credits on account and withholdings made.”

“additionally, it was established that those who administered the collaboration contracts shall have to report in Form 2276 the payments for labor income”.

d. The sole paragraph that Article 26 of Resolution 000060 of 2017 had, which indicated that the participants in collaboration contracts (i.e., principals in mandate contracts, hidden participants in joint account contracts, consortium members of consortia, etc., etc., was eliminated.) did not have to report again in their forms 1001, 1007, 1005, 1006, 1008 and 1009 the values that would only end up being reported in forms 5247 to 5252 by those who administered the collaboration contract (the agent of the mandate contract, the consortium, the manager of the joint account contracts, etc.). Said sole paragraph was replaced by three special paragraphs that ended up establishing the same as the sole paragraph had already established, but additionally it was established that those who administered the collaboration contracts will have to report in form 2276 the payments for labor income (therefore, they will not be able to report them in form 5247).

e. Article 27 of Resolution 000060 of 2017 related to the reporting of the new format 5253 v.1, in which the data of the individuals who throughout the year had the status of “beneficial owners” for certain legal entities will be reported (see literal “n” of article 631 of the ET, and article 631-5 of the same statute), was reissued in its entirety. Although said article had already been imperfectly modified with article 10 of Resolution 000045 of August 22, 2018, the Dian had to modify it again so that the instructions of the resolution would match the structure that had been given to format 5253 when it was issued as an annex 14 in October 2017. Indeed, although the structure of format 5253 indicated that a column called “type of informant” should be used, the text of article 27 of Resolution 000060 of 2017 made no mention of such column, nor did it indicate the concepts with which it could be filled in. Therefore, in the new version of article 27 of the aforementioned resolution, it is indicated that the format will include the column “type of informant”, and the 6 possible different concepts with which said column will be filled in were indicated (which was something that had already been included in the tax prevalidators that the Dian released on January 30, 2019).

f. Article 34 of Resolution 000060 of October 2017 related to the report of format 1032 v.9 to be prepared by notaries to report the sales of goods or rights made in the notary’s office during 2018 was fully reissued. However, the only adjustment detected between the previous version and the new one is that this time, in the first clause of the rule, it was made clear that notaries must report the operations of disposals of goods or rights, regardless of whether the same were for valuable consideration or free of charge. Therefore, it is verified that the Dian in the end did not want to adjust article 34 of the resolution in mention, in the way it had proposed in the draft of March 7, 2019, in which it had also proposed to modify paragraph 2 of article 34 of Resolution 000060 of 2017, adding a table with 57 codes that appear within Resolution 7144 of August 2012, issued by the Superintendence of Notaries and Registry, and with which the type of act or business subject to registration that has been contained within the public deed could be detailed. Said table was included in Article 34 of Resolution 11004 of October 29, 2018, with which the information for the taxable year 2019 was requested to be delivered during 2020.

g. The text of article 45 of Resolution 000060 of 2017 was adjusted to indicate that the penalties that may be applied by the Dian, pursuant to article 651 of the ET, will not only apply when the requested information is delivered extemporaneously or with errors, but also when such information is not delivered being obliged to do so.

h. Article 9 of Resolution 000024 of April 2019 established that the information submitted to the Dian is the responsibility of the reporting persons or entities, and for such reason it corresponds to them to make the updates or corrections of inconsistencies that may exist in the information provided. This same text, which had already been included also in Article 51 of Resolution 11004 of 2018, serves to release the Dian from liability when the information received is subsequently published in the service of “data consultation for income tax return of natural persons”.

Adjustment introduced with Resolution 000024 of 2019 affects the preparation of formats 1001 and 2276.

In addition to all the adjustments discussed above, it so happens that the most important adjustment of those introduced at the last minute by Resolution 000024 of April 9, 2019 is the one mentioned in its article 7 (which is an adjustment that had not been mentioned in the draft resolution published on March 7, 2019) and which reads as follows:

“Article 7. Add a paragraph to Article 36 of Resolution 000060 of October 30, 2017, as amended by Article 11 Resolution 00045 of August 22, 2018, which shall read as follows:

“Paragraph 3. The values corresponding to VAT and withholding at source for VAT associated with payments of labor income and pensions shall be reported in the corresponding payment and withholding forms, in concept 5016 – Other costs and deductions, filling in the columns of deductible payments or credits on account and non-deductible payments or credits on account in zero (0).”

Article 36 of Resolution 000060 of October 2017 is the one that indicates that all payments or credits on account for labor income made during the taxable year 2018 (those that are labor and non-labor, but that were subject to withholding with the table of article 383 of the ET) must only be reported in format 2276 v.2, since this time they will no longer be included at the same time in format 1001 as it happened until the reports of the taxable year 2017.

Therefore, the new paragraph 3 that was added to article 36 of Resolution 000060 of 2017 implies that when format 2276 is being filled out for labor income that has been non-labor income (i.e., for example, for a fee, or a commission or a service, etc.), what must be taken into account is that if the individual collected any value for VAT (and the same was left as a greater value of the expense), or if such individual was withheld for such tax, such data obviously cannot be included in form 2276 (since this form does not include columns for such purpose), but it must be included in form 1001 and with concept 5016.

To better understand what this implies, suppose that a natural person was paid fees of $10,000,000 during 2018, but said person also charged VAT of $1,900,000 that the paying company treated as a greater value of the respective fee expense. Suppose further that the withholding as income was practiced with the table of article 383 of the ET, generating a withholding of $500,000, and additionally a VAT withholding of $285,000 was made. In this case, the following reports will have to be made:

(a) In format 1001, and with concept 5016, the following will be reported: “payment = 0”, “VAT greater value of the expense = $1,900,000” and “VAT withholding = $285,000″. As you can see, it would be a very special record in which no “payment” would be reported, but the “VAT taken as greater value of the expense” and even its “VAT withholding” would be reported. We tested the above directly in the tax prevalidator, and it was accepted by that application.

b) At the same time, in the 2276 format, only the “payment value = $10.000.000″ and the “income withholding value = $500.000” In relation to the above, it is necessary to comment that it is too unwise that the Dian has decided to introduce at the last minute an adjustment as important as this, because it happens that such adjustment could only be known on the internet on April 23, 2019, and by that time several reporters had already complied with delivering their reports (either because they had risen early to make their presentation or because precisely on April 23 was when they began to meet the deadlines for large taxpayers reporters).

“If any reporter had already complied before April 23, 2019 with submitting their forms 1001 and 2276, they may correct them, but the Dian cannot dare to impose any penalty”.

Therefore, if any reporter had already complied before April 23, 2019 with delivering their formats 1001 and 2276, they will be able to correct them, but the Dian cannot dare to impose any penalty for making such correction.

Other adjustments that the Dian did not want to make to the exogenous information for the 2018 taxable year

It is important to warn that in the current text of Resolution 000060 of 2017 the following errors are still detected, which have not been corrected by the Dian (and all despite the fact that on March 13 of the current year we wrote, from our portal, an email to this entity, warning of the same):

1) In numeral 24.4 of article 24, which contains a table with the codes to report the “exempt income” that taxpayers can supposedly take in their tax returns for the taxable year 2018, it is given to understand that taxpayers could take as “exempt income” some concepts that do not appear in article 235-2 of the ET (norm that was modified with article 99 of Law 1819 of 2016 and that contains the only exempt income that legal entities can take during the taxable year 2018). Such concepts, which should be eliminated from the mentioned table, are the following:

(a) 8125 – Exempt income from interest, commissions and payments for external public debt (article 218 ET).

b) 8160 – Exempt income of film industrialists, individuals (article 46 of Law 397 of 1997).

c) 8163 – Exempt income for the generation and commercialization of electric energy based on water resources until 2018 (paragraph 4 of article 211 of the ET).

2) The paragraph of numeral 25.2 of article 25 contains the list of concepts to detail the type of non-taxable income that taxpayers could take in their income tax returns for the taxable year 2018. However, it is necessary to eliminate the following codes, since they do not correspond to non-taxed income and actually correspond to exempt income.

a) 8038 – Non-constitutive income generated in producing sources in any country of the CAN, other than Colombia (article 3 of Decision 578 of 2004).

b) 8039 – Non-constitutive income generated in remunerations, fees, salaries, wages, etc., rendered in another country of the CAN, different from Colombia (article 13 of Decision 578 of 2004).

c) 8040 – Non-constitutive income from professional services companies, produced in another country of the CAN, different from Colombia (article 14 of Decision 578 of 2004).

Source: Actualize