Sunday , December 5 2021

Legal ball of the day without VAT Opinion


The pandemic has had both positive and negative effects. One of the key factors is the acceleration of the widespread use of computer platforms in business, business and trade relations.

Today, the use of the Internet has a positive impact on the way we do business, provide health services, analyze, and take steps before public and judicial bodies, among other things.

Many lines have already been written about the latter about the deplorable impact they have had on the economy, employment, business, physical and mental health, families, and so on.
Given the disastrous impact on the survival of Colombian democracy, it is important to highlight the derivative of government decisions repeatedly adopted by the executive, without respecting the rule of law inherent in our institutional organization.

As a result of the protests of November 21, 2019, the National Government promoted in the Republican Congress the approval of the figure for “VAT-free days” for some products, achieving a three-day annual provision in the latest tax reform. To indicate to DIAN which specific days it should operate with the authority. The approved rule provided for an exemption from sales made only physically and electronically.

Later, the economic emergency decree, with the force of law, introduced several changes on the subject:

1. The exceptional advantage was extended to contactless sales and a lithographic invoice or POS equivalent document was authorized.

2. Indicated on June 19, July 3, and July 19, 2020 as the first day without VAT.

3. It decided that Articles 22 to 26 of the 2010 Law of 2010, which regulates this special exemption, will not apply during 2020.

Everyone remembers the deplorable experience of living in the country on the first day without VAT and the impact this had on public health, resulting in greater and indiscriminate pollution of Colombia’s population.

Due to this situation, the suspension of the third date of this year was determined. Unfortunately, in the absence of legal aid to make it effective, the president of the Nariño Palace caused a legal explosion in the issuance of a regulatory decree based on the powers of the National Police Code.

In addition, and without showing the slightest error, the same regulatory body established a notice of post-new notice of the date for the acquisition of the exempt goods, based on the provisions of Articles 22 et seq. The 2010 Act of 2010, with its signature and a few weeks earlier, had the connotation of the Law and expressly led to the emphasis on the non-application of these rules in 2020.

Now, through a TV program called “Prevention and Action,” the government has announced that it will celebrate the third day of “VAT-Free Day” next Saturday, November 21st.

The Political Constitution requires a strict principle of legality in tax matters. Therefore, there can be no tax without a law expressly stating its elements by the legislature.

Also, only laws passed by Congress can require exemption from existing taxes, in the case of the announced “VAT-free Day,” a budget that is clearly missing from the November 21 reduction.

In the face of this defining panorama of the regulatory framework for tax issues, with the transcendental flow of resources to the state budget the state would be able to meet its goals and the critical scenario of public finances as a result of the pandemic. Knowing whether the continuation of the announced concession could lead to the fiscal liability of committed officials, as structured “State property damage”, the law defines as follows: … injury, impairment, impairment, damage to public property and damage to public resources and state property interests. or deterioration, wasteful, efficient, effective … and untimely fiscal management … “that” … caused by the actions or omissions of public officials … that fraudulently or irresponsibly create or contribute directly to the detriment of public property ”.

If the scheduled “VAT-free day” is so complied with, it will be up to the Comptroller General to determine whether these events cause damage to property and possible penalties. And to the rest of the control authorities, determine whether the Code of Criminal Procedure and the disciplinary statutes of civil servants are configured for conduct that is censored.

It is understandable to make the best efforts to create greater consumption.
The stimulus of this variable, along with others, is necessary to stimulate the recovery of the deteriorating economy. However, the search for economic reactivation must proceed without violating the existing constitutional rule.

Sectors involved in the marketing of tax-deductible products should stop trying to rebuild their businesses and do nothing to justify the actions of the authorities in this way, let alone be indifferent.

Their tacit acceptance will affect them later than ever, because if the attacks on the current legal order continue, the country will condemn itself to plunge into dark and incomprehensible abysses.

Gustavo Humberto Cote
Former CEO of DIAN.

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