Take advantage of the penalty reduction benefit by correcting until April 1, 2023.
DIARIO DEL HUILA, TAX OFFICE
BY: José Hilario Araque Cárdenas, tax adviser and consultant.
Juan Diego Araque Durán, lawyer specializing in tax law.
Another of the major modifications introduced by the latest tax reform – Law 2277 of December 13, 2022 – is the issue related to the notorious reduction of applicable sanctions when the obligation to report exogenous information has not been complied with within the established deadlines, or having reported it with errors or that does not correspond to what was requested.
In effect, article 80 of Law 2277 of 2022 considerably reduced the sanctioning rates for violation of the rules regarding the reporting of exogenous information to the DIAN, a sanctioning regime that contemplates article 651 of the Tax Code; and at the same time, the transitory benefit that if you correct or correct the information until April 1, 2023, the applicable sanction is reduced to a minimum value, as long as the DIAN has not notified the statement of objections to the obligor as we explained to continuation.
Well, in view of the modification to the sanctioning regime of exogenous information, we must bear in mind the following details:
In the first place, the maximum limit of the fine is reduced from 15,000 UVT ($636,180,000) to 7,500 UVT ($318,090,000), without a doubt a great success.
Secondly, the new sanctioning rates that were reflected in article 651 of the Tax Code, are the following:
a) 1% (previously 5%) of the amounts for which the required information was not provided;
b) 0.7% (previously 4%) of the sums for which it was wrongly provided;
c) 0.5% (previously 3%) of the sums for which it was provided untimely;
d) When it is not possible to establish the basis for assessing the sanction or the information does not have an amount, the sanction will be 0.5 UVT for each data not supplied or incorrect, which may not exceed 7,500 UVT.
Third, if the party obliged to report voluntarily corrects the infractions (did not provide information, supplied it incorrectly or supplied it out of time) before the Dian notifies them of the statement of objections, in any of the above criteria, the sanction is reduced to 10% (previously 20%);
Fourth, taxpayers who have incurred in the offenses indicated above, and have not been notified of the statement of objections, may correct or correct the information, presenting it until April 1, 2023, applying a 5% penalty.
Fifth, as a new aspect that is worth highlighting, is what is contemplated in paragraph 2 of the aforementioned article 651 of the tax statute, which establishes that when an omitted or inaccurate data is reported in different formats, or is included in another report, the sanction will be calculated taking the data with the highest amount. We believe that this new provision clears up concerns that have been raised on this matter.
Sixth, in the event that these infractions have been incurred before December 13, 2022, it is possible to pay the penalty taking into account the new rates, by virtue of the principle of favorability established in paragraph 5 of article 640 of the Statute. Tax that provides “The principle of favorability will apply to the tax penalty regime, even when the permissive or favorable law is later”
In seventh place, we still have the possibility of continuing to reduce this penalty and it is because of what has been established for several years in article 640 of the Tax Code, a provision that regulates the application of the principles of harmfulness, proportionality, gradualness and favorability in the regime sanctioning.
Indeed, this penalty reduction depends on whether you have not had to liquidate and pay this same penalty in previous years, a situation that, with the fulfillment of certain conditions, the previously calculated penalty may be further reduced to 50%.
Finally, the DIAN, through General Concept 100208192-165 of 2023, answered several questions made with the interpretation and application of some provisions of Law 2277 of 2022 in matters of tax procedure, especially, in light of the changes introduced by articles 78. , 80, 81, 91, 92 and 93 of the tax reform.
The opinions are the responsibility of the partners of Araque Asociados Consultores Tributarios y Legales. We rely on the understanding of current regulations and knowledge of tax law, and may not be shared by the tax authorities. Consult us at www.araqueasociados.com Questions and suggestions in the mail: [email protected] Personalized attention: Carrera 5 No. 14-32 offices 5, 7 and 8 Pasaje de la Quinta de Neiva, Huila, telephones 321 452 3315.
