April 1 is the deadline to access the temporary reduction of exogenous sanctions!
Law 2277 of 2022 modified article 651 of the Tax Statute
Law 2277 of 2022 modified article 651 of the Tax Statute by introducing novelties in the sanctioning regime applicable to the reporting of exogenous information.
With article 80 of Law 2277 of 2022, article 651 of the Tax Statute -ET- was modified, reducing the rates for sanctions applicable to natural and legal persons obliged to provide tax information, as well as those who have been requested information or evidence, which is not provided, is provided outside of the established deadlines or whose content contains errors or does not correspond to what was requested.
In addition, it modified the reduction to said sanctions, as well as incorporated a new transitory benefit for those who have failed to comply with their obligation to provide information (see our editorial Sanctions in exogenous information: these are the changes of the tax reform).
Note: although article 651 of the ET contemplates the sanctions for not sending information in general, it is well known that in most cases they apply to the reporting of exogenous information. However, it is also applicable in the case of non-compliance with the obligation of not duly transmitting the billing system documents provided for in article 616-1 of the ET.
However, on February 7, 2023, the Dian issued General Concept 165, through which it clarified the most frequent doubt regarding the reduction of the sanctions of article 651 of the ET, in addition to providing clarity on the temporary benefit of the new paragraph transitory of the article in question:
If the infringements are voluntarily corrected exogenously before the Dian issues a statement of objections, can a reduced sanction be liquidated?
Regarding this question, it is necessary to take into account that the new version of paragraph 1 of article 651 of the ET, modified by article 80 of Law 2277 of 2022, indicates that the person obliged to inform may voluntarily correct their faults before that the Dian issues a statement of charges, in which case it must liquidate and pay the corresponding sanction of numeral 1 of the article in question, reduced to 10% (it is worth specifying that this norm has an indefinite validity in time).
Thus, for example, if a penalty is initially settled at 200 UVT ($8,482,000 for 2023), by applying the above it could be reduced to 20 UVT ($848,000 for 2023).
However, the transitory paragraph of the same article establishes a temporary benefit for those who have incurred in the infractions of article 651 of the ET and have not notified them of the statement of objections, giving them the opportunity to correct or rectify the information no later than December 1. April 2023 applying the penalty reduced to 5%.
"If the person obliged to report information presents or corrects it before the statement of objections is notified, and does so until April 1, 2023, they will have the right to have the penalty reduced not to 10% but to 5%"
The foregoing is that if the person obliged to report information presents or corrects it before being notified of the statement of objections, and does so until April 1, 2023, they will have the right to have the penalty reduced not to 10% but at 5%.
Taking the aforementioned example as a reference, we have that a penalty initially settled at 200 UVT would be reduced to 10 UVT (5% of 200 UVT; $424,000).
However, it is important to specify that, in addition to the reductions in paragraph 1 and the transitory paragraph of article 651 of the ET (which are not appropriate at the same time), the controller may additionally apply the reductions provided for in article 640 from ET. The foregoing was ratified by the Dian in Official Letter 030291 of 2019, in which it clarified that the reduction provided for in the paragraph of article 651 of the ET can be applied together with the regime of proportionality, gradualness and favorability in the sanctioning regime.
However, it should not be forgotten that the sanction paid after the respective reductions cannot be less than the minimum sanction of article 639 of the ET (10 UVT).