Exogenous taxable year 2019: Tax Penalties

When the exogenous information report is not submitted within the established deadlines, is submitted with errors or does not correspond to what was requested, the penalties set forth in article 651 of the ET will be applied.

However, in certain cases these penalties may be reduced.

In relation to what is set forth in article 47 of Resolution 011004 of 2018, when the exogenous information is not provided within the established deadlines, its content presents errors or does not correspond to what was requested, the Dian will have the power to apply the penalties set forth in article 651 of the ET, such as:

–5%of the amounts in respect of which the required information was not provided.

–4% of the amounts for which erroneous information was provided.

–3%of the amounts for which information was provided late.

–0.5 % of the net income, if it is not possible to establish the rate or the information is not quantified. If there is no income, it will be on 0.5% of the gross equity of the taxpayer or declarant, corresponding to the previous year or last income tax return or income and equity.

–Ignorance ofcosts, exempt income, deductions, discounts, liabilities, deductible taxes and withholdings.

However, it is necessary to highlight that the above penalties, with the exception of the last one, shall not exceed the equivalent of 15,000 UVT ($534,105,000 for 2020).

In addition, if the correction of the exogenous information is made before the expiration of the deadline for filing the report, no penalty shall be paid, in accordance with the provisions of the second paragraph of article 651 of the ET.

On the other hand, when the penalty is imposed by means of an independent resolution, the sanctioned person or entity shall be previously notified of the charges and shall have one (1) month to respond.

Values to take into account when liquidating penalties

Through Concept 021693 of October 18, 2017, the Dian provided clarity in relation to the question about what values should be taken into account when liquidating sanctions related to exogenous information; this, due to the fact that there may be duplicity of values, since the same information must be submitted in several formats, a situation that is corroborated by the Dian in the doctrine in mention, since it accepts that certain information may be requested in different formats simultaneously.

Given the above, for the Dian the liquidation of the penalty does not depend on the number of times the same values are reported or on the way the information must be reported, since for the entity the information to be provided is only one and none of the penalties mentioned above alludes to this type of aspects.
Furthermore, for the Dian, if the liquidation of the sanctions depended on this type of criteria, it would violate the non bis in idem principle, according to which it seeks to avoid duplicity of sanctions when there is identity of object (corresponds to the fact on which the sanction will be applied), identity of cause (when the reason that gives rise to the application of the sanction is the same in both cases) and identity of the person (if the sanctioned person is the same in two cases of the same nature).

Reduction of sanctions

Sanctions related to the reporting of exogenous information may be reduced, according to the following criteria:

Source: Actualize