APPROACH TO CASE 1
On September 12, 2002, the company “CCC” presented within the legal opportunity, the information in magnetic media for the taxable year 2001.
Through the statement of objections of March 6, 2003, and based on article 651 of the ET, the DIAN proposed to sanction the “CCC” company, for errors in the information provided, assessing the sanction on all the information processed.
Within the legal opportunity, the company replies to the statement of objections, accepting the errors and accepting the reduction of the sanction to 20% contemplated in Article 651 of the ET. To do this, enter the amount corresponding to the sanction, which rates the amount of the wrong records.
By means of Resolution of August 2003, the Liquidation Division of the same Administration imposed a sanction for "SEND INFORMATION IN WRONG WAY".
The Legal Division of the same Administration, affirms that the company made a mistake in assessing the sanction on the value of the mistakes made. The correct thing is to take advantage of the benefit of the reduction to 20% on the sanction determined by the same administration, that is, all the information processed, since the content of subsection 3 of literal b) of article 651 of the ET cited, has that the reduction of the sanction operates on the sum determined by the Administration and the taxpayer cannot modify the base of the sanction by applying its own criteria because it is not admissible that "per se" apply what in its judgment it considers.
Consequently, by not having paid the entire penalty, it does not meet the requirements of Art. 651 of the ET, so the penalty cannot be reduced to 20%.
Analyze the position assumed by the Administration and establish on the basis of article 651 of the ET what should be the amount from which the penalty for not sending information should be assessed, and whether or not the “CCC” company fulfilled the requirements to avail itself of reducing the penalty to 20%.
DEVELOPMENT CASE 1
Subsection 2 of literal a) of article 651 of the tax statute establishes a fine of up to 5% of the amounts in respect of which the required information was not provided, was supplied erroneously, or was made out of time.
The above clearly differentiates three scenarios for the information:
- That it is not sent That it is sent in extemporaneously That it is sent with errors
In the case in particular, the scenario that applies is the third since the taxable year 2001 declaration was presented within the legal opportunity, on September 12, 2002, so it is understood that obviously the situation is NOT out of time or omission in the presentation but of error in the information sent.
It is important to make this precision to affirm that the Tax Administration assumed a position contrary to what is strictly established in Article 651 ET, since it indicates that the sanction will be, except for the other two scenarios according to the deduction of "simple logic" of the previous paragraph, up to 5% of the amounts in respect of which the information was wrongly supplied.
The DIAN through Resolution No. 2004 of 1997, Art. 2, confirms the valid interpretation of the aforementioned article, 651, of the Tax Statute; in this it is related to the graduation of the sanction established in the second paragraph of literal a) of Art. 651 ET; The sanction referred to in the second paragraph of literal a) of article 651 ET., Will be applied gradually on the value of the erroneous registrations… taking into account the criteria that are stated below:
c) If the information reported by the persons or entities obliged to supply it presents errors in more than 30%, it will generate for the informant a sanction of 3% on the amount of the erroneous records, and
d) If the information provided presents errors of up to 30%, it will give rise to 2% of the amount of the erroneous records.
If for the present case, the company had not sent information or had done so out of time, possibly the DIAN's action would be correct, but in this case it is confirmed that this was not the case.
Regarding the third subsection of numeral b), which makes precision with respect to the sanction referred to in Article 651 ET., It states that it will be reduced to 10% of the amount determined as provided in literal a), if the omission is remedied before the imposition of the sanction is notified; or 20% of such amount, if the omission is remedied within two months from the date the sanction is notified; In this subsection, a clear reference is made to a benefit of reduction in the sanction when it is configured by omission of information but not by error in it, being consistent with what has been described so far, however, the company "CCC" accepts such benefit, within the legal opportunity,after it is informed of the proposed sanction through the statement of objections of March 6, 2003 but before it is notified of the imposition of the sanction by means of the August 2003 Resolution of the Administration Liquidation Division Tax, so in my opinion the taxpayer in this case would have the benefit of even agreeing to the 10% reduction as long as it complies with the budgets contained in the third paragraph of literal b) of Art. 651 ET.
Now, regarding the questioning of whether or not the company “CCC” fulfilled the requirements to benefit from the reduction of the sanction to 20%; that a memorial of acceptance of the reduced sanction in which the omission was rectified, as well as the payment or agreement to pay for it, be presented to the office that is hearing the investigation; The company "CCC", within the legal opportunity, answers the statement of charges accepting the errors and accepting the reduction of the sanction to 20%, consigning the amount corresponding to the sanction that rates the amount of the erroneous records. Although although the third paragraph of literal b) does not make precision on the basis of which the penalty must be calculated if it is established in Art. 651 ET, literal a), second paragraph,that the sanction is calculated up to 5% of the amounts in respect of which the information was supplied in an erroneous way, so it operates in law that the reduction of that sanction is established on the same basis, that is, on the sum in respect of which the erroneous information was supplied.
Concluding
The Tax Administration did not properly apply the provisions of Art. 651 ET., With respect to not sending information, which for the particular case makes specific reference to sending it in the wrong way.
The amount from which the penalty for not sending information must be assessed will be:
- About the amount of the wrong records, when there is an error in the provision of information. About the information not supplied, when it is not sent. About the information sent late, when it is done outside the legal opportunity.
The company "CCC" if it fulfilled the requirements to avail itself of the reduction of the sanction to 20%.
APPROACH TO CASE 2
The company “BBKFE SA”, whose corporate purpose is the processing of coffee, filed the sales tax declaration for the first two months of 2002 out of time, which did NOT include the liquidation of the penalty for timelessness. The aforementioned statement was presented in December 2002.
As a consequence of the foregoing, the National Tax Administration issued Resolution No. 00523 of December 28, 2003, settling the penalty for timelessness applicable to society, taking as a legal reference a rule already subrogated by the date of the Resolution, which was much more burdensome for the interests of the company "BBKFE SA".
As a tax advisor, present your considerations on the following points:
1. What is the applicable standard for tax settlement?
The one in force for the date in which the declaration should be presented.
The one in force on the date the statement was filed.
The one in force at the date of issuance of the Resolution where the Administration settles the penalty for being out of time.
Justify your answer.
2. Is the principle of favorability expressly recognized in Criminal Law applicable to Tax Procedure? Justify the answer.
DEVELOPMENT CASE 2
The company "BBKFE SA" has evidently failed to comply with the obligation to declare its tax within the legal opportunity; the fact sanctioned in the penalty for extemporaneity is configured by the omission is configured in the omission by the taxpayer to declare the corresponding VAT tax within the terms previously established by the Tax Administration; Faced with this non-observance of the legal precept by the taxpayer, once the facts have been verified, it is appropriate to apply the corresponding sanction.
To apply the respective sanction, it is up to the Tax Administration, once the sanctioned fact has been identified, to determine the commission of the fact taking into account that the rule applicable to the infringement has been issued prior to the commission of the respective sanctionable act and that in turn is in force for the same fact.
The applicable norm for the liquidation of the tax is the one in force at the time the tax infraction is configured; the moment in which the taxpayer does not fulfill his obligation to declare the VAT tax; since, from the study of the scope and application of the tax rules, it is found that the substantial rules, among them the rules that impose sanctions, must be pre-existing to the fact that it is sanctioned and its application is not retroactive; At the same time, the procedural norms, as they are of public order, are immediately applicable and prevail over the previous norms, from the moment they begin to govern.
With respect to the principle of Non-Retroactivity, it has that the relevant purpose of it is to protect legal certainty as a fundamental value of the legal system. The Constitutional Court, respecting the issues related to retroactivity, has considered that the current regulations were those of the last period. Similarly, the criterion of favorability has been used to interpret the principle of retroactivity, infringing the concept of period by fragmenting it inappropriately. Likewise, when analyzing the alleged violation of the principle of non-retroactivity, it justifies the indexation of tax debts, by virtue of the principle of equity in determining their real value. Although the concept of acquired rights is not preached in tax matters,There are particular situations in which the tax impact has been recognized as part of the change in circumstances in which, for example, a private contract has been concluded.
On the other hand, Art. 363 CP, establishes that the tax laws will not be applied retroactively, so that the rules of the game agreed by the associates and translated into rules and principles will not suffer a substantial variation and will interfere with facts and situations. already consolidated. This guarantee ensures that the taxpayers know, before carrying out the generating events that give rise to the payment of taxes, the tax consequences that will be derived either from their acts or contracts, which implies that in tax matters the legislator will not be able to establish the legal parameters of a fact carried out prior to the entry into force of a new law, modifying the substantial or procedural aspects of a specific tax.
Another manifestation of the principle of No Retroactivity is revealed in formulas used by tax legislation with the argument of authoritative interpretation. However, even though the Court declared Articles 99 and 121 of Law 633 of 2000 to be irrelevant, it did so for formal reasons, which prevented it from speaking out about this mechanism, which involves a retroactive application of the tax regulations.
As for the principle of favorability, this constitutes an exception to the general rule according to which the laws govern the future, it arises from the maxim “favoralia amplianda sunt, odiosa restrictigenda” (the favorable must be extended and the hateful must be restricted), and only it operates when there is a succession of laws. In addition, it is registered to the old rule of Roman law "omnia pro reo beneficus" (All for the benefit of the accused). Undoubtedly, it could be said that the postulate under study fits in the general context that "All laws are retroactive in criminal matters when they favor the accused."
The principle of favorability is a general principle of the criminal process and from the constitutional orbit it is a structure of due process - recognized as a fundamental right in the new higher paradigm of 1991.
Second subsection, literal a), Art. 651 ET: Up to 5% of the amounts in respect of which the required information was not provided, was provided in erroneous forms or was made out of time.
The commission of the act is conceived as the moment in which the taxpayer materializes or configures the infraction.
RODRIGUEZ BEREIJO in the "Tax System in the Constitution" warns: "In the tax field, the relationship between the principle of legal certainty and the retroactive effects of the law acquire particular importance, since the taxpayer must be able to orient himself based on the current regulations at all times, so that knowledge and certainty about current law, and predictability regarding its relative permanence in the face of surprise changes, constitute an essential element of taxation according to the rule of law ”.
In this regard, the Political Constitution in its Article 338 establishes that “the laws, ordinances or agreements that regulate contributions in which the base is the result of events that occurred during a certain period, cannot be applied except from the period that begins after start the validity of the respective law, ordinance or agreement ”.
Judgment C - 185 of 1997
Judgment C - 527 of 1996
Judgment C - 549 of 1993
