The Dian establishes an addition to the General Concept No. 1328 of 2023 on tax and customs procedures.

The Tax Administration by Ruling No. 329 of 2023, answers questions on the interpretation and application of some provisions of Law 2277 of 2023.

Section 78 of Law 2277 of 2022

Section 580-1 of the Colombian Tax Code (hereinafter C.T.C) modified by Section 78 of the Tax Reform (Law 2277 of 2022), established that withholding tax returns filed without full payment shall not produce legal effects.

However, when the tax return has been filed without full payment, it may produce legal effects, provided that the unpaid amount does not exceed 10 UVT ($424,120) and it is paid within the following year at the latest, counted from the date of expiration of the term to file the return, without prejudice to the payment of any default interest that may be applicable.

Additionally, this Section states a transitory treatment for tax returns that have been filed without full payment and at the date of issuance of the Tax Reform (December 13th, 2022), and are ineffective, whose value to be paid is equal or less than 10 UVT; the ineffectiveness may be remedied by paying the total amount owed plus any default interest due, no later than June 30th, 2023.

Following the above, for the calculation of the "value not paid" (10 UVT), the following shall be considered:

The value of the withholding that has not been paid totally or partially in the tax returns filed on a timely basis.
The value of the withholding not paid totally or partially, the penalty for untimeliness and the moratorium interest caused until the untimely filing of the withholding tax return, not paid totally or partially, considering the provisions of Section 804 of the Colombian Tax Code (priority in the imputation of payment), in the tax returns filed untimely.

The amount left unpaid and the default interest caused from the filing of the tax return until the payment should be added, which are not part of the 10 UVT limit.

Example of the calculation of the 10 UVT in a timely filed tax return:

CONCEPT	UVT
Value of withholding tax return	1.000
Total value to be paid	1.000
Value paid with withholding tax return	990
Value of withholding tax not paid at the time of filing the tax return	10
Total value due	10
Default interest caused from the presentation of the tax return until the cancellation of the debt (at the latest June 30, 2023)	100
Value to be paid	110

Section 80 of Law 2277 of 2022

Now, Section 651 of the C.T.C modified by Section 80 of Law 2277 of 2022 establishes the penalty for not sending information or sending it with mistakes will be reduced to 50%, if the omission is corrected before the penalty is notified; or to 70% if the omission is corrected within the 2 months following the date on which the penalty is notified.

The Tax Administration mentioned that taxpayers who have paid the respective penalty before the entry into force of the Tax Reform will not be able to access the reduction of the applicable penalty by application of the favorability principle, because "the taxpayer already corrected, liquidated and paid the respective penalty, making use of the regulations in force at the time."

Additionally, it specified that the reductions referred to in Section 651 of the C.T.C. will not be applicable to the penalties related to the exogenous exchange information, since the Section refers exclusively to the obligation to provide tax information.

Section 91 of Law 2277 of 2022

Section 91 of the Tax Reform, states that the default interest rate will be equivalent to 50% of the rate established in the Colombian Tax Code (art 635 C.T.C).

In this regard, the Tax Administration specified that the default interest rate may be applied to ineffective withholding tax returns, provided that the total payment is made no later than June 30th, 2023. Likewise, the default interest rate is applicable to the payment of bimonthly advances of the Simple Taxation Regime.

On the other hand, if a taxpayer meets the conditions to access the transitory reduction of penalties and interest rates established in Section 93 of Law 2277 of 2022 and, liquidated the respective penalties and default interest without taking into account such reduction, he/she may request the refund of what was paid in excess, according to what is mentioned in the Official Letter 499 of 2016, "the payment in excess occurs when the individual pays more than what the Law requires."

It must be complied with what is contemplated in subsection 2 of Section 850 of the C.T.C, which establishes the procedure for the request for the refund of what was paid in excess.