Relief in imposition of Dian and Ugpp penalties

In the previous column, tax relief for the termination of administrative and judicial proceedings for discussions with the National Tax and Customs Directorate (Dian) and the Pension and Parafiscal Management Unit (Ugpp) were presented; in this opportunity we will address the rules governing the application of the principle of favorability by the Dian in matters of penalties in the collection stage and the gradual imposition of penalties for untimely delivery of information to the Ugpp.

In cases that are in the collection stage by the Dian, due to the existence of a title that lends executive merit, the law in question has provided in Article 102 the application of the principle of favorability in sanctioning matters enshrined in Article 640 of the Tax Statute (ET) for taxpayers, declarants, withholding agents, responsible parties, joint debtors, subsidiary debtors or guarantors who have obligations to pay, which will be applicable to all penalties that were reduced by the issuance of Law 1819 of 2016.

It is important to remember that article 282 of Law 1819 of 2016, modified article 640 of the ET and regulated the application of the principles of lesivity, proportionality, gradualness and favorability in the penalty regime established in the ET. Likewise, such law reduced some penalties, among which we find, for example, the penalty for inaccuracy that went from 160% to 100%.

In such virtue, by way of illustration, if a taxpayer currently faces a coercive collection process whose penalty for inaccuracy was liquidated in application of rules prior to the entry into force of Law 1819 of 2016, this is at 160%, he/she may request in writing to the Administration to apply the principle of favorability invoking Article 102 of the Financing Law, reason for which, such penalty may be reduced to 100%.

In the events in which the administrative acts impose penalties and there are no taxes or duties under discussion, the payment of the reduced penalty duly updated shall be made. The same benefit will be available to the taxpayer who has been imposed a penalty for improper refunds or compensations, for which he/she must also reimburse the amounts refunded or compensated in excess and pay the interest incurred.

It should be noted that the interest caused will correspond to the current banking interest for the modality of consumer and ordinary credits, certified by the Superintendence of Finance, plus two percentage points.

It should be noted that this provision is of a temporary nature and that, for its application, the interested party will have a term to submit the request to the Dian until June 28, 2019, which will have a term of one month to resolve it and, in the event that the request is rejected, an appeal for reconsideration and, in subsidy, an appeal. This provision also empowers the territorial entities to apply the principle of favorability to the taxes under their jurisdiction.

On the other hand, Article 103 of Law 1943 of 2018, which amends Article 179 of Law 1607 of 2012 (amended by Article 314 of Law 1819 of 2016), establishes that the penalty to contributors for the non-provision or the late, incomplete or inaccurate provision of the information required by the Ugpp, will be up to 15,000 UVT, whose taxable value in UVT is estimated according to the number of months in arrears, a situation that had been regulated in a similar sense since Law 1607 of 2012.

However, the Financing Law modifies the gradualness of the penalty and establishes that it will be reduced according to the gross income recorded by the obligor and the time (four-month period) in which the required information is provided, provided that it is received to the satisfaction of the entity and the payment of the reduced penalty is made within the following calendar month, as follows:

Before the referred modification, the highest discount granted in the penalty amounted to 30% and for its application there was no distinction by gross income; whereas, at present, as could be seen in the chart, the highest discount percentage amounts to 90% and the lowest to 50%, which clearly favors those who are in arrears in complying with the delivery of information to the Ugpp.

Once the term of 12 months has elapsed, counted from the date on which the information should have been delivered, without the contributor complying with such obligation, the penalty of 15,000 UVT will be applied without any reduction whatsoever.

The referred provisions (articles 102 and 103 of the Financing Law), although they correspond to different entities and matters, share the characteristic of being established as tools that alleviate the imposition of penalties for those who are in the situations described above.