Tax penalties: withholding agents

The tax penalty regime contemplates different types of penalties for each of the obligations administered by the Dian. On this occasion we address the tax penalties to which withholding agents authorized by law may be exposed.

Those individuals or legal entities authorized by law to act as withholding agents must comply with the obligations set forth in articles 375 and 379 of the Tax Statute -ET-.

Failure to comply with such responsibilities will result in the imposition of certain penalties, among which we highlight the following:

Penalty for failure to issue certificates.

Withholding agents who fail to comply with the obligation to issue withholding at source certificates, including the income and withholding certificate, within the term established by the National Government, shall be subject to a fine equivalent to 5% of the value of the payments or credits corresponding to the certificates not issued.

When this sanction is imposed by means of an independent resolution, the sanctioned person or entity shall be previously notified of the charges and shall have a term of one (1) month to respond.

Criminal liability for failure to record withholdings at source

According to Article 665 of the ET, the withholding agent who does not consign the amounts withheld within two (2) months following the month in which the respective withholding was made shall be exposed to the same penalties provided in the Criminal Code for public servants who incur in the crime of embezzlement by appropriation.

Thus, according to Article 402 of the Criminal Code, withholding agents or self-withholding agents who do not consign the amounts withheld, or those who, being in charge of collecting taxes or public contributions, do not consign them within the legal term, shall incur in imprisonment from 48 to 108 months and shall receive a fine equivalent to double the amount not consigned, without such amount exceeding the equivalent of 1,020,000 UVT ($37,034,160,000 in 2021).

However, when the withholding agent makes the payment or compensates the totality of the withheld amounts, together with the respective interests and penalties, it will be beneficiary of the inhibitory resolution, preclusion of investigation or cessation of proceedings within the criminal process initiated.

Source: Actualícese