By: Rodrigo Garcia Ocampo
Partner director
Email: rgarcia@sfai.co
The national tax on single-use plastic products used to pack, pack or pack goods was created by Law 2277 of 2022 in order to reduce the use and disposal of single-use plastics that generate negative externalities for the environment. , falls on the producers and importers of single-use plastics that use them to pack, pack or pack goods that they sell, withdraw for their own consumption or import for their own consumption.
The taxable base of the tax is the weight in grams of the container, packaging or single-use plastic packaging and the rate is 0.00005 UVT for each gram. The tax is incurred on the date of issuance of the invoice in the sales made by the producers, in the withdrawal date in the withdrawals for the consumption of the producers and in the date in which the good is nationalized in the imports.
In accordance with current regulations, the Tax Declaration is annual, its expiration for the fiscal period of 2023, is as follows:
If the last digits of the NIT are Deadline
1-2 February 19, 2024
3-4 February 20, 2024
5-6 February 21, 2024
7-8 February 22, 2024
9-0 February 23, 2024
The General Concept issued by the DIAN, No. 100208192-0091 and virtual file No. 000I2023000641 dated January 23, 2023 regarding the national tax on single-use plastic products used to pack, pack or pack goods establishes the criteria for determine what is meant by single-use plastics and what are the exceptions to the tax; However, some entities have requested reconsiderations of the General Concept arguing that there are inconsistencies, ambiguities and contradictions in its content, with respect to the rules that regulate the Tax, such as articles 50 to 53 of Law 2277 of 2022 and articles 641, 642, 644, 646, 647 and 648 of the Tax Statute, for which the DIAN has issued Official Letter 100202208-0728 and virtual file No. 000I2023006427 dated May 30, 2023 through which an analysis of the articles of Law 2277 of 2022 that gives life to this environmental tax on the use of single-use plastics.
The applicants for the reconsideration argued that the general concept did not take into account the definition provided by Law 2277 of 2022 of what is meant by importer or producer of single-use plastics, and that the buyer of single-use plastic to pack, pack or package a product if he was a taxpayer and responsible for the tax.
For example, if a company buys plastic packaging to package its products for sale to the public, the applicants considered that the company should pay the tax for the plastic packaging used.
When making its argument, the DIAN indicates that the legislator, when determining the taxpayers of the tax contained in article 51 of Law 2277 of 2022, did not use the expression “Producer and/or importer of single-use plastic products” contained in article 50, but rather defined two taxpayers -who in turn are responsible- for the Tax as follows: (i) producer; or (ii) importer.
“In other words, at no time did the legislator, when defining the essential elements of the Tax in article 51 of Law 2277 of 2022, use the expression «Producer and/or importer of single-use plastic products». And, it is worth emphasizing, the terms “producer” or “importer” are not equivalent to “producer and/or importer of single-use plastic products” which is the expression defined in article 50. Thus, in view Since the legislator did not use the term that he expressly defined, it is not possible to apply it in light of article 51 of Law 2277 of 2022 in accordance with the rule of interpretation of article 28 of the Civil Code. Therefore, it is the legislator himself who in article 51 of Law 2277 of 2022 ignores the term “Producer and/or importer of single-use plastic products” that he previously defined in article 50 of the same Law. Thus , it is up to the interpreter to make sense of the expression producer or importer making use of the rules of interpretation provided for in articles 27 to 32 of the Civil Code”ends up indicating the DIAN in its official letter of May 30, 2023.
The DIAN Legal Management Department continues arguing that “As expressed in the General Concept of the Tax, the generating event is the sale, withdrawal for own consumption or import for own consumption of “single-use plastic products used to pack, pack or pack goods”. As evidenced, there is a contradiction in terms of taxed products and producers between the definition of article 50 and the triggering event of article 51 of Law 2277 of 2022. On the one hand, the definition refers to products contained in containers, packaging or plastic packaging and on the other, the generating event -like the title of the Tax whose expression is repeated seven (7) times in the text- refers to plastic products to be packaged, packed or packaged. Thus, for the sake of discussion, if the definition of article 50 of Law 2277 of 2022 were used to interpret the taxable person, the event generating the tax would never be verified in it. In effect, the following contradiction would be reached: the producer or importer of a product contained in a single-use plastic container, packaging or packaging would never sell or import a single-use plastic product to pack, pack or pack goods”.
On the other hand, the DIAN indicates that, “It is the producer or importer of the single-use plastic packaging, packaging or container who has the best information to settle and pay the Tax, to the extent that he knows exactly its weight. In this way, he can accurately settle and pay the Tax while harmonizing its eventual inspection, since it occurs in the first stage of the production chain. That is to say, since the Tax is a single-phase first stage, it is levied on the first person who carries out the generating act and has contact with the taxed product in the national territory -ie, the producers or importers of packaging, containers or plastic packaging-. The foregoing also explains why this tax does not have exceptions in relation to small marketers of packaged products. By taxing the products in the first stage of production, it is not necessary to make multiple traders incur transactional costs of complying with the tax”.
The DIAN, after carrying out its analysis, concluded that General Concept No. 100208192-0091 and virtual file No. 000I2023000641 dated January 23, 2023 regarding the national tax on single-use plastic products used to pack, pack or pack goods, was in accordance with current regulations and with the legislator’s purpose of creating the tax as an environmental and collection instrument. Therefore, it confirmed that the taxable person and person responsible for the tax is the one who acts as importer or producer of the single-use plastic product used to pack, pack or pack goods, and not the final buyer of said product. Thus, continuing with the previous example, the tax must be paid by whoever imports or produces single-use plastic containers, and not by whoever buys them to pack their products.
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