Governmental action against tax penalties in Colombia
Governmental channels are understood to be the result of the action taken before the administration as a requirement to be able to access the jurisdiction in order for the latter to exercise control of the legality of the administrative action. This supposes the exhaustion of all the resources available to the person administered to defend himself/herself.
The Council of State by means of judgment 21971 of 2018 stated that the purpose of the exhaustion of governmental channels is that the Administration has the opportunity to review its decisions in order to be able to revoke, modify or clarify them, that is, that the administrative authorities can rectify their own errors, before they are subject to a judicial process.
In tax matters there are different punishable conducts such as filing the tax return out of time, omitting to file the tax return, correcting the tax return after the deadline for filing, not providing the required tax information, providing the required tax information in an erroneous or untimely manner, issuing an invoice without complying with the requirements, among others.
Once the sanctionable conduct is configured, the administration issues an administrative act and it becomes final when one of the following circumstances is verified;
- No appeal is allowed.
- Upon expiration of the term to file the appeals, they have not been filed or are not filed in due form.
- The appeals are expressly waived or withdrawn.
- Appeals filed in governmental proceedings or actions for reestablishment of rights or tax review have been definitively decided.
Article 720 of the Tax Statute establishes that: “Without prejudice to the provisions of special rules of this Statute, against official assessments, resolutions imposing penalties or ordering the reimbursement of amounts refunded and other acts produced, in relation to taxes administered by the Special Administrative Unit of the National Tax Directorate, an appeal for reconsideration may be filed.
The appeal for reconsideration, unless otherwise expressly provided, must be filed before the competent office of the Tax Administration that issued the respective act, within two months following the notification thereof.
When the act has been issued by the Tax Administrator or his delegates, the appeal for reconsideration must be filed before the same official who issued it”.
The term for the administration to resolve this appeal is one year from the filing of the appeal, and in the event that no resolution has been made, the administrative silence will be understood as positive.
In conclusion, it is understood that governmental channels are exhausted once this appeal is filed.