Revista de Derecho Fiscal

Presentación

César J. Sánchez Muñoz — Wed, 24 Apr 2024 00:00:00 -0500

The Infraction and the Tax Crime from the Point of View of the Theory of the Sole Ius Puniendi of the State and Human Rights

Alejandro Díaz Reyes, José Fernando Vázquez Avedillo — Wed, 24 Apr 2024 00:00:00 -0500

The purpose of this research is to analyze the offense and the crime, which constitute legal figures of punitive nature in the tax field, in which its legal classification is given in the exercise of the right to punish of the State under the need to protect the tax revenues of the State that allow it to achieve its purposes.

This analysis starts from the study of the different theories that dispute the ownership of ius puniendi, to arrive at the theory that proposes the State entity as the only holder of the right to punish through the administrative sanctioning law and the criminal law where the unlawful conducts considered as infraction or crime are regulated, a circumstance that will allow examining the exercise of ius puniendi by the authorities in the tax field in the light of the human rights that limit the exercise of this punitive power.

ICA: Taxation of Health Services (Not POS) Provided by EPS and IPS

Julia Andrea Pardo Pérez — Wed, 24 Apr 2024 00:00:00 -0500

Regulatory changes in the health sector have generated different jurisprudential positions regarding the taxation or not of the provision of health services that are not included in the subsidized health plan (no POS) with the industry and commerce tax.

From the normative and jurisprudential study, this article aims to establish which is the thesis or the criterion that fits the current reality in tax matters regarding the provision of health services outside the Compulsory Health Plan (POS) by the health promoting and providing entities (EPS and IPS) and thus, determine whether it is feasible to apply the non-taxation provided for in paragraph d) of numeral 2 of article 39 of Law 14 of 1983 or if on the contrary, this service is taxed with the industry and commerce tax according to the change of the legal provisions in the health sector.

Applicability of the Tax Benefits of Law 2010 of 2019, Law 2155 of 2021 and Law 2277 of 2022 in Colombia

Janeth Lozano Lozano, Edna Carolina Montaña Lozano — Wed, 24 Apr 2024 00:00:00 -0500

The objective of this article is to generate a reflection on the applicability and acceptance of the tax benefits granted by the legislator in reduction of interest rates, penalties and the principle of favorability granted to taxpayers of national taxes in Colombia administered by the Directorate of National Taxes and Customs (DIAN). Presenting analysis of acceptance and applicability of tax exemptions, application of the principle of favorability in the collection process, reduction in interest rates and others, which may normalize the taxpayers’ statements of account, but which may also affect collection goals and therefore the economic situation of the country by relieving the tax burden.

Constitutionality of Articles 178 and 180 of Law 1607 of 2012

Nicolás Toro Garcés — Wed, 24 Apr 2024 00:00:00 -0500

The application of articles 178 and 180 of Law 1607 of 2012, by virtue of which the determination and sanctioning procedures carried out by the UGPP were regulated within the framework of the exercise of its powers related to the control and monitoring of compliance with the obligations associated with parafiscal contributions to the general social security system could constitute legal situations that generate conflicts or differences in criteria between taxpayers and the administration; the foregoing, since in the aforementioned provisions the legislator omitted to establish a peremptory term for the notification of the requirement to declare and/or correct and for the notification of the statement of objections. Appearance that without a doubt warrants a review of the constitutionality of these articles as they may be in violation of fundamental principles and/or rights of individuals.

The importance of transit and multimodal transport in the customs regulation

Roberto Meisel-Lanner — Wed, 24 Apr 2024 00:00:00 -0500

The Colombian state, in harmony with the increase of illegal associations and their application of overseas exchange opportunities, began the notion of risk management in institutions law to deactivate these activities. This piece of thinking will then consent to us to understand the range and significance of the structure of ways danger administration and what rotates about it in that situation, and I outline includes lower… Then is necessary describing the operation and the customs control again of the law.

The Economic Taxable Event and the Legal Tax Base: Distinction and Practical and Theoretical Usefulness

Iván Guillermo Fonseca Forero — Wed, 24 Apr 2024 00:00:00 -0500

This article aims to analyze the theoretical and practical usefulness of the distinction between the economic taxable event and the legal tax base. Although they are close-related concepts, their separation provides a better understanding of the legal and economic function of a tax, allowing a comprehensive perspective of the tax phenomenon. Special emphasis will be made on the inherent relationship between the economic taxable event and the identification of the person who will be the economic addressee of a tax.

Liability of the Administrator in Hypothesis of Tax Inaccuracy

Daniel Ochoa Giraldo , Esteban Villegas Palacio — Wed, 24 Apr 2024 00:00:00 -0500

Colombian corporate regulations establish duties of conduct for the administrators of commercial companies, who in case of breaching them, may see their responsibility compromised. However, it can be affirmed that case law has established, especially by the Delegation for Commercial Procedures of the Superintendence of Companies and recently by the Supreme Court of Justice, the Business Judgment Rule as a standard for judicial review of the actions of administrators.

For its part, Colombian tax regulations provide several obligations for companies in their role as taxpayers, to which the administrator must comply despite the complexity, vastness, constant modification and specialty of tax regulations, which , not infrequently it is reviewed by the tax administration, resulting in official determination processes due to inaccuracy or correction, leading to higher taxes to pay or lower balances in favor, penalties for inaccuracy or correction, late interest and even criminal proceedings.

This article proposes to address the liability of administrators in cases in which the company managed by them is subject to such determination procedures initiated by the tax administration.

Back-to-Back withholding loan rules and their anti-treaty shopping effect in Canada

Juan Carlos Díaz — Wed, 24 Apr 2024 00:00:00 -0500

The Income Tax Act imposes withholding tax typically; article 11 of Canadian tax treaties allow Canada to tax interest arising in Canada and paid to residents of the other treaty country at a reduced rate of 10 or 15 percent from the statutory rate that could otherwise apply. Exclusively, under Canada-United States Treaty, no Canadian withholding tax applies to interest on non-arm’s length debt, for example, when a Canadian subsidiary pays interest on money borrowed from its U.S. parent corporation. Nevertheless, as treaties are intended to provide tax benefits only to residents of the treaty countries, residents of third countries, for example, the parent of a multinational enterprise in a third country, might seek to arrange lending transactions indirectly through the United States or perhaps other countries to qualify for treaty benefits that would not otherwise be available on a direct loan from the ultimate lender or some other member of the corporate family. This is often called “treaty shopping,” structuring loans to reduce the withholding tax to the least possible tax treaty rate. These arrangements generally may and frequently involve interposing a non-resident financial intermediary located in a tax treaty jurisdiction between a Canadian taxpayer and a resident of a nonta treaty jurisdiction to reduce the withholding tax that would apply if a loan were made and interest paid on the loan directly. As a response, subsections 212(3.1) and 212(3.2) of the ITA provide specific objective rules to address back-to-back loan arrangements through treaty shopping schemes, attuned to the common commercial characteristics of commercial lending transactions and the interests of genuine self-interested participants in them.

Colombian Tax Bill – Significant Economic Presence

Camilo Otálora — Wed, 24 Apr 2024 00:00:00 -0500

Taxing the digital economy is a challenge from a political and economical point of view. Since long time it has been discussed that income taxes should be levied where value is created. The present article aims at explaining why Significant Economic Presence is not factor of value creation. Furthermore. taking into consideration that current nexus and transfer pricing rules are based on physical presence, the article explores the critical points of the implementation of a unilateral income tax on the digital economy in light of international tax treaty law.

Application of the ECE Regime in Colombia for Legal Entities

Yulier Andrea Rodríguez Sánchez , David Andrés Camargo Mayorga — Wed, 24 Apr 2024 00:00:00 -0500

With Law 1819 of 2016, the ECE Regime was included, which was motivated by the OECD for BEPS Action 3. The application of this regime is regulated in articles 882 to 893 of the Tax Code with its 6 pillars. The ECE Regime originates when a company abroad without tax residence in Colombia is controlled by one or more Colombian tax residents, according to the linkage rules of article 260-1 of the Tax Code. However, in this regime the regulations can be complex to apply and different interpretations can be derived. Starting from this premise, this article aims to identify the problems in the application of the Foreign Controlled Entities Regime (ECE Regime) in Colombia for legal entities. For this purpose, a methodology was applied under the qualitative approach that used the interview for the collection of information.

Fictitious Suppliers and their Tax Penalty Regime in Colombia

María Fernanda Amaya Torres — Wed, 24 Apr 2024 00:00:00 -0500

The purpose of this article is to structure and compile the available information on the penalty regime applicable to individuals declared as fictitious providers, with special emphasis on the application of the rules carried out by the jurisprudence of the State Council, particularly in the resolution of specific cases. To achieve this, it will study, the sanctions established in articles 671, 647 and 648 of the Tax Statute; the jurisprudence of the State Council on the matter and the doctrine issued by the DIAN. Finally, a brief reference is made to electronic invoicing as a mechanism to combat fraud and tax evasion carried out through these suppliers.

Most Favored Nation Clause with the Entry into Force of the Agreement to Avoid Double Taxation with the United Kingdom

Shelesthe Moreno Prieto — Wed, 24 Apr 2024 00:00:00 -0500

The Most Favored Nation Clause (MFN) is used in international trade to eliminate discrimination between domestic and international markets. However, its application has not been restricted to this area, given that States have also opted to include it in Double Taxation Avoidance Agreements (DTA). About this new incorporation, this paper analyses the scope of the MFNC incorporated in the DT A signed by Colombia, particularly with a view to providing an analysis in relation to the vicissitudes that arose because of the entry into force of the agreement with the United Kingdom. This is due to the fact that the Colombian negotiators did not -for the first time-include in the definition of royalties the payments received for technical assistance, technical services and consultancy, despite the fact that, until that time, the aforementioned extension in the definition of the concept was part of the Colombian foreign policy on agreements to avoid double taxation -a practice that allowed preserving the taxation at source of the aforementioned qualified services, in accordance with the provisions of articles 24 (ordinals 7 and 8) and 408 of the Tax Statute.

From the Tax Base Erosion to the Tax Sovereignty Shifting from States to OECD/Inclusive Framework

Felipe Yáñez — Wed, 24 Apr 2024 00:00:00 -0500

Base erosion and profit shifting (BEPS) by multinational companies is a growing global concern. This practice deprives countries of tax revenue, distorts competition, and challenges tax sovereignty. International initiatives such as the OECD BEPS Action Plan seek to address these problems through coordinated actions between countries and international organizations. This essay critically examines the impact of said Plan on the concept of fiscal sovereignty of individual States and the displacement of said power towards international organizations. Its starting point is that States must preserve fiscal sovereignty, since it is fundamental for democracy, based on the consent of citizens to pay taxes to transparent and auditable governments. In contrast, the shift of fiscal sovereignty to international organizations raises concerns about its effects on democratic principles. The author advocates a balanced approach to addressing global fiscal problems, respecting fiscal sovereignty and democratic values. From this perspective, the solution to these problems, instead of focusing exclusively on increasing global coordination, could imply that States renew social contracts with their citizens, achieving a balance between state coercion and the freedom of taxpayers to link with other jurisdictions.

Practical Theoretical Analysis of the Requirements to Qualify as Belonging to the Special Tax Regime

Luisa Fernanda Higuita Martínez — Wed, 24 Apr 2024 00:00:00 -0500

This document provides a practical theoretical analysis of the requirements to qualify for the Special Tax Regime (RTE, for it is acronym in Spanish) and the problems faced by Non-Profit Organizations (NPO). Aforementioned , we start firstly with a theoretical analysis of the concepts required to understand the RTE; secongly we analyze the figures obtained through a response to a right of petition filed with the DIAN and finally we examine the qualification process from the perspective of the administration and taxpayers through interviews conducted with the Taxpayer and Customs User Ombudsman as administrative authority in the DIAN and the accountant of an NPO that underwent the process of qualification to the RTE. This research aims to identify the problems of access to the RTE and the causes that give rise to such issues.