Tax penalties: general information to keep in mind

Non-compliance with the formal and substantial obligations of taxpayers entails a series of sanctions by the tax administration, with the purpose of complying with numeral 9 of article 95 of the Political Constitution, which establishes that among the obligations of Colombians is to contribute to the financing of the expenses of the State within the framework of the concepts of justice and equity.

In this sense, we could think of tax penalties as coercive tools of the State to guarantee the contribution in the event of non-compliance with the principle of solidarity. In other words, the imposition of sanctions originates from the impossibility of leaving to the discretion of individuals the obligation to comply with certain tax liability for the institution of the general good.

Now then, we address the main generalities related to the penalty regime in tax matters:

Acts through which penalties may be imposed.

In accordance with article 637 of the Tax Statute -ET-, penalties may be imposed by means of an independent resolution or in the respective official liquidations made by the Dian as operator of the sanctioning rules, using its broad powers of inspection and investigation.

Prescription of the power to impose penalties

When penalties are imposed in official liquidations, the power to impose them prescribes in the same term that exists to practice the respective official liquidation, which will be within three (3) years following the date of expiration of the term to file the tax return(see article 705 of the ET).

In the event that the penalty is imposed by means of an independent resolution, the respective statement of charges must be issued within two (2) years following the date on which the income tax or income and assets return was filed for the period in which the punishable irregularity occurred, or the period in which it ceased in the case of continuing violations.

The above, except in the cases of the penalty for not filing a tax return, interest on late payment and penalties for violating the rules governing the profession imposed on public accounting firms, and in the case of suspension of the power to sign tax returns(see articles 659, 659-1 and 660 of the ET), which are subject to the statute of limitations in the term of five (5) years.

Once the term for replying to the statement of objections has expired, the Dian will have a term of six (6) months to apply the corresponding penalty, not without first practicing the evidence if applicable(see article 638 of the ET).

Dian’s power of inspection

Article 684 of the ET grants the Dian broad powers of inspection and investigation in order to ensure that taxpayers comply with the substantive rules, for which reason the Dian is authorized to carry out the following activities:

–Verifythe accuracy of data or values recorded in tax returns or other reports.

–Conductinvestigations to determine whether the taxable event occurred that was not declared in the terms contemplated in the norm.

–Summonthe taxpayer or third parties, either to submit reports or to be questioned.

–Orderthe taxpayer or third parties who are obliged to keep accounting records to exhibit their books and other documents, without ruling out the possibility that they may be subjected to a partial examination. Article 684, paragraph g) of the ET emphasizes that the Dian may review the financial statements, recognition systems, as well as the measurement and supports that served as a basis for determining taxes.

–Requestthe electronic transmission of accounting and other documents.

Source: Actualícese