Who are the first to be obliged to invoice electronically?

Resolution 000002 of January 3, 2019 establishes that, for now, those obliged to invoice electronically will be only those who were large taxpayers on February 6, 2018, as well as those who during the last 6 years used the electronic invoicing of Decree 1929 of May 2007.

The Dian, in order to comply with the provisions of the new version of the transitory paragraph 2 of Article 616-1 of the Tax Statute -ET-, modified with Article 16 of Law 1943 of December 2018, issued its Resolution 000002 of January 3, 2019, through which it indicates who are for now the only taxpayers to be considered as obliged to issue electronic invoicing.

Article 1 of the Resolution mentions:

Article 1. Obligated parties. As from the effective date of this resolution and without prejudice to the term indicated in article 684-2 of the Tax Statute, the following taxpayers shall be obliged to issue electronic invoices:

(a) Individuals, legal entities and other subjects that as of February 6, 2018 held the status of large taxpayers selected by the Special Administrative Unit of the National Tax and Customs Directorate -DIAN, which correspond to the subjects indicated in Resolution 010 of February 2018, issued by the aforementioned entity.

b) Individuals, legal entities and other subjects that as of the date of publication of this resolution and during the six (6) years prior to said date, have requested numbering ranges for the electronic invoice referred to in Decree 1929 of May 29, 2007, compiled in Decree 1625 of October 11, 2016, Sole Regulatory Decree on Tax Matters, which correspond to the subjects indicated in Resolution 072 of December 2017, issued by the aforementioned entity.

Paragraph 1. The Special Administrative Unit of the Tax and Customs Directorate – DIAN, shall enable individuals, legal entities and other subjects who have voluntarily chosen to be electronic billers, until January 18, 2019 at the latest; provided that, as of the aforementioned date, the software through which the formal obligation to invoice has been associated in the Electronic Invoice Computer Service of the aforementioned entity, and they have the authorization of the technological provider of such association in the aforementioned system, when applicable. As from the aforementioned date, voluntary electronic billers will not be enabled until the electronic invoicing with prior validation comes into effect.

Paragraph 2. The electronic invoice referred to in this resolution shall be issued in accordance with the provisions of articles 1.6.1.1.4.1.1.1 to 1.6.1.1.4.1.1.21 of Decree 1625 of 2016, Sole Regulatory Decree on Tax Matters, until the electronic invoice with prior validation comes into force. The operations that the obligated subject had been invoicing, using for this purpose the computer invoice or the checkbook or paper invoice, shall henceforth be invoiced by electronic invoice, under the conditions set forth in this article; except when the circumstances provided in article 2 of this resolution arise.

The term referred to in article 684-2 of the Tax Statute applies to the parties referred to in paragraphs a) and b) of this article that have not implemented the electronic invoice as of the date of publication of this resolution.

Paragraph 3. The obligation set forth in this article does not apply when it is derived from mandate contracts, whose principals are within the group of subjects selected in this article.”

As can be seen, the Dian has limited, for the time being, the universe of those obliged to invoice electronically, establishing that such obligation will only apply to those to whom the provisions of paragraphs a) and b) of the first paragraph of the aforementioned rule apply. Therefore, only they must have in their RUT the responsibility “37 – Obliged to invoice electronically”.

“Paragraph 3 of the rule implies that agents in mandate contracts will not be obliged to invoice electronically when their principals are included in the universe of those obliged to invoice electronically”.

In any case, it is noteworthy that paragraph 3 of the rule implies that agents in mandate contracts shall not be obliged to invoice electronically when their principals are included in the universe of those obliged to invoice electronically. Such provision would violate what is currently stated in Article 1.6.1.1.4.1.11 of DUT 1625 of October 2016 (which compiles the rule of Article 11 of Decree 2242 of November 2015), which states the opposite: agents would be obliged to invoice electronically when their principals are indicated as obliged to do so.

Additionally, the aforementioned Resolution 000002 states that only those who have acted until January 18, 2019, and have also submitted a request to invoice electronically on a voluntary basis, may obtain from the Dian the respective authorization to do so (and with which they will appear in the RUT the responsibility “38 – Voluntary Electronic Invoicing”). This means that as of said date the Dian will no longer receive any more applications to operate as a voluntary electronic biller.

All taxpayers currently issuing electronic invoicing must continue to do so with the “subsequent validation” model introduced with Decree 2242 of November 2015(model in which copies of invoices can be sent within 48 hours of their issuance), and will only have to start invoicing with the “prior validation” model(in which the Dian will first validate the invoice before it is delivered to customers) when such model is established at a later date.

POS vouchers do not serve as tax support as from January 2019.

Article 2 of Resolution 000002 of January 3, 2019, and in compliance with the provisions of transitory paragraph 3 of article 616-1 of the ET, modified by article 16 of Law 1943 of 2018, mentions the reasons for which it may be accepted that the person obliged to invoice electronically has valid excuses for not doing so, and indicates that in such cases he/she may invoice by traditional means.

However, paragraph 1 of said article 2 of Resolution 000002 repeats again the same instruction that had already been contained in the new paragraph 4 of article 616-1 of the ET in relation to the fiscal non-acceptance as from January 2019 of the equivalent documents issued with POS system. The text of the resolution reads:

“Paragraph 1°. For the purposes of what is indicated in this article and in accordance with the provisions of paragraph 4 of article 616-1 of the Tax Statute, it is required to take into account that the equivalent documents generated by cash register machines with POS system, do not grant the right to deductible taxes in the sales tax, nor to costs and deductions in the income tax and complementary taxes for the acquirer. However, the purchasers may request a sales invoice from the party obliged to invoice, when by virtue of their economic activity they are entitled to request deductible taxes, costs and deductions”. Consequently, all parties obliged to invoice (either electronically or in traditional forms), if they have customers for whom it is important to have a valid support that allows them to subtract costs or expenses in their income tax return, or that allows them to subtract values for deductible VAT in their VAT returns, they will have to start worrying about issuing documents other than those generated by the POS system.

Source: Actualícese