The demand to the tax regime of the Esal

A few days ago, the Constitutional Court admitted the lawsuit filed by the Colombian Confederation of Non-Governmental Organizations and Professor Juan Carlos Jaramillo against several articles of Law 1819 of 2016 related to the tax regime of non-profit entities (Esal).

First, the plaintiffs attack the constitutionality of Article 364-3 of the Tax Statute ("E.T."), a rule that establishes that in case an Esal is excluded from the Special Tax Regime ("RTE"), it may only request its reinstatement to the same after three (3) years from its exclusion. The plaintiffs state that it would make sense that the exclusion from the RTE would be for the period during which the infraction was committed, but that extending such penalty to the following three periods is legally equivalent to being penalized twice for the same act, which would violate the constitutional principle of due process and non bis in idem.

Secondly, the plaintiffs attack the constitutionality of article 364-5 of the E.T., which establishes that the Esal must register in a web application of the Dian so that the civil society, through its comments, may express its opinion on the requirements for access to the RTE. They argue that this regulation violates Article 210 of the Political Constitution ("C.P."), because although private parties may -in certain cases- perform administrative functions, they must always do so in accordance with a law that clearly determines how such public functions are to be performed, which is not the case here. Thus, such rule violates the tax principle of reservation of law enshrined in Article 338 of the Constitution.

Thirdly, also with respect to numeral 9 of article 364-5 of the E.T., which establishes the obligation of the Esal to publish in the web application indicated by the Dian the identification of its donors and the amount of their donation, making the presumption that the simple act of donation constitutes the authorization for their data (and those of their donations) to be published without any filter, The plaintiffs consider that this constitutes a violation of the right to privacy of donors and Habeas Data, which in no case can be presumed, but it is up to the owner of the data to give his express authorization for it to be used, especially in the case of such sensitive data as the amount donated to an Esal.

Fourthly, with respect to paragraph 4 of article 364-5 of the E.T., which indicates that all the information to be uploaded to the Dian application must also be published on the Esal's web page, the plaintiffs consider that such requirement violates the principle of efficiency established in article 363 of the C.P. This, by establishing formal obligations that clearly exceed the economic possibilities of the taxpayers and that are not indispensable. It is not really understood the need for each Esal to have a web page and have to bear the cost of maintaining it, when such resources could be invested in its meritorious activity.

This demand is a democratic exercise that contributes to purify an issue of high impact for the development of the country. It is important that other Esal coadjut the same so that the Constitutional Court can study all the arguments before issuing the corresponding sentence.