Tax penalties: electronic invoicing

According to Resolution 000042 of 2020, those subjects indicated in article 6 of the mentioned resolution will be obliged to issue electronic sales invoices.

Those who are obliged and omit this responsibility will be exposed to certain penalties contemplated in the Tax Statute.

If a person obliged to invoice electronically does not issue the respective invoice, or it does not comply with the basic requirements set forth in the regulation, it will be subject to certain tax penalties, among which we highlight the following:

Penalties for not implementing electronic invoicing

Subjects that being obliged to invoice electronically do not do so, or that issue documents other than the sales invoice, electronic invoice or equivalent documents (such as pre-invoice, collection account, pre-account or similar), will be subject to the penalty of closing the commercial establishment, office, office or place where the activity, profession or trade is exercised, replaced by Decree 358 of 2020 and by article 652-1 of the Tax Statute -ET-.

For such purpose, article 657 of the TE states that the sanction of closing the establishment will last for three (3) days, during which the Dian will impose official seals that will contain the legend “Closed by the Dian”.

Such sanction will be imposed by resolution, after the transfer of charges to the offending person or entity, which will have a term of ten (10) days to respond. The sanction will be effective within ten 10 days following the exhaustion of administrative proceedings.

Penalty for issuing invoices without requirements

Pursuant to Article 652 of the ET, when invoices are issued without complying with the requirements related to the express denomination of sales invoice, the indication of the VAT withholding agent status or in relation to the name or company name and NIT of the invoice printer (in the case of paper invoices); see paragraphs “a”, “h” and “i” of article 617 of the ET), a penalty of 1% of the value of the transactions invoiced without complying with such legal requirements will be incurred, without exceeding the equivalent of 950 UVT ($34.493,000 in 2021).

In case this conduct persists, or if the other requirements of the invoice are not complied with, the establishment will be closed for a period of three (3) days.

This sanction may be remedied if the responsible party accepts a fine equivalent to 5% of the income from operations obtained in the previous month(see numeral 1 and paragraph 7 of article 657 of the ET).

Penalty for double invoicing

When it is established that the invoicing company uses electronic systems from which double invoicing is evidenced or that an invoice or equivalent document issued by the responsible party is not registered in the accounting or in the tax returns, the establishment will be closed for a term of three (3) days.

According to paragraph 5 of article 657 of the ET, double invoicing is understood as the issuance of two invoices for the same economic fact, even if any of these do not comply with the formal requirements demanded by the Dian, regardless of their denomination or the system used for their issuance.

Penalty for not sending information or sending it with errors

This sanction applies when the data required by the Dian is not provided, when such provision is not made within the established term or when the content presents errors and does not correspond to what was requested. A fine not exceeding 15,000 UVT ($534,105,000 in 2020) may be applied for such offenses. The value will be set taking into account different criteria:

–Ifit is for failure to provide data, the amount will be 5% on the amounts with respect to the information not delivered.

–Inthe case of erroneous information, the value of the penalty will be 4% of the amounts for which information was provided with errors.

–Ifthe information is delivered extemporaneously, the penalty shall be 3% of the amounts on which information was supplied extemporaneously.

Source: Actualize