Cost assumption scheme for self-employed workers before the UGPP

The Economic Growth Law 2010 of 2019, in addition to maintaining most of the provisions of Law 1943 of 2018 (Financing Law) and incorporating a series of necessary amendments to the fiscal rules, also provided for a new rule applicable in the auditing processes carried out by the Pension and Parafiscal Management Unit -UGPP-.

Indeed, through Article 139 of Law 2010 of 2019, a paragraph was added to Article 244 of Law 1955 of 2019 (National Development Plan -PND- 2018 - 2022), through which the following is provided:

• The UGPP may apply the presumption of costs scheme to the ongoing auditing processes, to those that are about to be initiated and even to those pending to be resolved through direct revocation.
• The term for resolving direct revocations and appeals filed during the ongoing auditing processes is extended.
• The decisions resulting from the application of the presumption of costs scheme, including those that are in the process of direct revocation, may avail themselves of article 110 and request the transaction with the UGPP until December 31, 2020.

It can be seen, then, that the rule in question modifies certain terms applicable to the UGPP's inspection and direct revocation processes, as a result of the entry into force of Resolution No. 209 of 2020, with which said entity adopted the scheme of presumption of costs for self-employed workers and with a contract other than the rendering of personal services.

However, Article 139 itself entails several drawbacks in its application, especially regarding the provisions of the third paragraph, according to which the decisions resulting from the application of the presumption of costs scheme will also be subject to the provisions of "Article 110 of this law, whose deadline for requesting the transaction with the UGPP will be December 31, 2020".

In this regard, we understand that when the article 139 refers to "the present law" it refers to the Law 1955 of 2019, given that, as mentioned, said norm adds a paragraph to article 244 of Law 1955 of 2019. However, Article 110 of the NDP refers to the protection of tourists, which has nothing to do with the IBC of the self-employed, the UGPP or the presumption of costs scheme.

Now, understanding that it was a technical error in the drafting of the rule, and if it is thought that by "this law" the legislator meant to refer to Article 110 of Law 2010 of 2019, we find that this provision also refers to a completely unrelated issue to the UGPP, this being the presentation of the annual declaration of assets abroad.

Papers approving the presumption of cost scheme

In view of the above legal uncertainty, and to clarify which article is referred to in the transcribed text, it is necessary to resort to the teleological interpretation of the norm as suggested by legal hermeneutics. Following this methodology, it is noted that in the papers of the Congress of the Republic to approve Law 2010 of 2019, the following was provided:

• In Gazette No. 1131 of November 26, 2019 (paper for first debate) it was proposed the inclusion of a new article (pages 22 and 79) for the application of the scheme of presumption of costs "to the ongoing audit processes, which are initiated with respect to any fiscal period and are in the process of resolving an extraordinary action".
• In Gazette No. 1214 of December 11, 2019 (report for second debate) it is evident that, in the proposed text, article 110 corresponded to the termination by mutual agreement (page 91) and article 130 to the application of the presumption of costs scheme (page 102).
• In Gazette No. 1239 of December 19, 2019 (final text approved in plenary session) it is evident that article 110 corresponded to termination by mutual agreement (page 127) and 130 to the application of the presumption of costs scheme (page 146).

According to the above, it is possible to reasonably infer that the legislator's purpose was to enable the application of the termination by mutual agreement to the decisions resulting from the use of the presumption of costs scheme, thus being able to request the transaction with the UGPP until December 31, 2020.

The analysis proposed here is not minor if we consider that for these cases the term to request the transaction before the UGPP is extended, since Law 2010 of 2019 provides in its article 119 that such request may be filed until June 30, 2020. The article deals with "termination by mutual agreement of tax, customs and exchange administrative proceedings".

In this regard, it should be specified that, although the termination by mutual agreement is applicable to the UGPP, as provided in paragraph 11 of the article in question, this is pending to be regulated by such entity, as it has done on other occasions with Resolutions 776 of 2017 and 1171 of 2019.

Conclusion

Article 139 of the referred Law 2010 of 2019 incorporates benefits for self-employed workers, to whom the scheme of presumption of costs is applicable; but, at the same time, from its application several inconveniences are derived that should be clarified by the legislator as the authentic interpreter of the rules.

Notwithstanding the foregoing, it should be noted that with respect to the aforementioned Article 244 of Law 1955 of 2019, a claim of unconstitutionality for violation of the principle of unity of matter is currently before the Constitutional Court, so the decision adopted by the High Court on the matter should be taken into account, under the understanding that it directly affects the validity of the aforementioned rules.