By: Rodrigo Garcia Ocampo
Partner director
Email: [email protected]
On March 31, 2023, the DIAN issued general concept 100208192-415, through which it analyzes tax and customs considerations on sales of goods made through electronic commerce from Colombia abroad.
Next, an analysis is made of the main implications of the sale of goods in tax and customs matters when they are made by sellers, Colombian tax residents through the platform of a third-party intermediary (ie marketplace), destined for buyers located in abroad for the following business models:
(i) Sale, export, distribution and logistics of goods in the country of destination carried out directly by the seller.
In this business model, the seller exports to the country of destination its own inventories maintained in Colombia, prior to receiving an order or purchase order, and sends the goods to buyers abroad at its own expense, but uses the services of an electronic platform (marketplace) that receives payment from buyers (customers), and deposits in favor of the seller the net income from the commission that the platform charges for its intermediation.
(ii) Sale, export and distribution of goods in the country of destination carried out directly by the seller, additionally, a third party provides the logistics service abroad.
In this business model, the seller uses the services of a logistics operator located abroad that stores their temporarily exported inventories for re-importation to the same state (goods on consignment abroad, article 374 of Decree 1165 of 2019), which a Once you receive a buyer’s purchase order from your client (seller), you proceed to prepare the orders, pack them, and send the products to the buyer located abroad.
Under this model, the foreign logistics operator, which also provides some after-sales services, such as guarantees, charges the seller, outside of the storage service of its inventories, the logistics services for the attention to purchase orders from its customers and your office together with the after-sales services.
The concept of the DIAN does not refer to the business model of merchandise purchased abroad and maintained abroad, which according to the International Exchange Statute, does not constitute an import or its sale is considered an export, As these are balances of merchandise that have not had transit through the national customs territory, this market is increasing through electronic means.
Having clarified the two business models, the DIAN indicates:
1. Income tax and complementary
1.1. source of income
According to model (i), the income is from a national source, since the export is made from the national territory, whereas, for model (ii) the products offered by the seller are located outside the country at the time of its alienation, so that the income received will constitute income from a foreign source for the latter.
1.2. taxable income
According to the ET, the income received by both natural persons and legal entities, whether from a national source or a foreign source, are income subject to income tax under the terms of article 26 of the ET in competition with articles 9, 10 and 12 of the same Statute.
1.3. Taxes paid abroad
In accordance with article 254 of the ET, taxpayers may deduct from the income the taxes paid abroad, whatever their denomination, settled on the same taxable income, provided that the discount does not exceed the amount of the tax that must be paid in Colombia. for the same income. It is to clarify that the income tax paid abroad can be treated as a tax discount limited to the scenarios established in the ET
1.4. Paid Brokerage Services
The concept recalls that article 107 of the ET establishes the general requirements for expenses to be deductible, such is the case of (i) having a causal relationship with the income-producing activity, (ii) being necessary, (iii) proportional and (iv) legal, referring to the Unification Sentence 21329 of 2020 of the Council of State that defines each of these concepts, in which case, the expenses paid by the intermediation may be deductible subject to having been duly supported. (Article 771-5 of the ET) and subject to withholdings at source and VAT that may arise depending on whether the service is provided from abroad or in Colombia.
The concept clarifies that the ideal support is the sales invoice, however, in the case of the support document in acquisitions with subjects not obliged to issue a sales invoice or equivalent document, in Unified Concept No. 0106 of August 19, 2022 – Obligation to invoice and Electronic Invoice System was manifested, establishes the need for the support document of acquisitions made to subjects not obliged to issue a sales invoice or equivalent document must be prepared by the buyer and validated by the DIAN, in the case of not obliged to issue an invoice in Colombia as well as those expenses paid abroad for the provision of services.
2. Sales Tax – VAT
2.1. Sale of goods abroad
The sale of movable tangible assets abroad, are exempt from VAT, considering that it is an export in the terms of articles 479 of the ET Thus, whoever exports, whether a natural or legal person, must be registered as such in the RUT and as responsible for VAT on a bimonthly basis.
2.2. VAT paid by the seller
Article 481 ibidem, indicates that the movable tangible assets that are exported have the quality of exempt with the right to a bimonthly refund, with which the VAT paid by the seller in the production and/or commercialization chain of the goods is subject to a refund. , this is clarified by article 489 of the ET, indicating that, “(…) there will be a discount and bimonthly refund only when the person carrying out the operation is a person responsible for sales tax as established in article 481 of this Statute”
3. Electronic Billing
In accordance with current regulations, internet sales to residents and/or non-residents in Colombia are a type of sales recognized by Law, consequently, the party obliged to invoice (seller), articles 615, 616-1 and 617 of the ET, must support online sales destined abroad, through an electronic sales invoice, in accordance with the provisions of article 1.6.1.4.17. of Decree 1625 of 2016 and in article 76 of DIAN Resolution No. 000042 of 2020, complying with all the requirements regarding electronic invoicing established in current regulations. If the sale is made through a marketplace, the electronic commerce platforms must make available a service that allows the issuance and delivery of the electronic sales invoice by its users to the final consumer, as provided in article 616-1 before aforementioned.
4. Customs
The Official Letter DIAN 907480 – 1514 of November 26, 2020, indicates that from the customs point of view, the sales of merchandise abroad through online platforms, corresponds to an export which can be carried out by different export modalities. , as established in Title 6 of Decree 1165 of 2019 (Customs DUR), thus:
- When the sale of the merchandise is carried out before its departure from the national customs territory, the export procedure may correspond to the modalities of: (a) definitive export or (b) export by postal traffic and urgent shipments. If the sale is a definitive export, the requirements established in the Customs DUR must be met to obtain the Export Declaration; if the export is by postal traffic, a simplified export declaration must be obtained through the authorized operators for said traffic.
- On the other hand, when the sale of the merchandise is carried out after its departure from the national customs territory, previously the merchandise should have been exported under the modality of temporary export for re-importation in the same state in the terms of article 374 and following of the DUR. Customs. When it is decided to leave the goods exported on consignment permanently abroad, the modality of temporary export must be changed to definitive, within the term indicated by the customs authority at the time of the temporary export.
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