DIAN Sanctioning Regime
Introduction: Fundamentals of Tax Sanction Law in Colombia
The sanctioning regime administered by the National Tax and Customs Directorate (DIAN) constitutes one of the most direct manifestations of the punitive power of the State, known as ius puniendi.
This power, essential to ensuring compliance with tax obligations and the fiscal sustainability of the Social State of Law, is not absolute: it is limited by constitutional and legal principles.
The regulatory basis of this regime is found in the Political Constitution, the Tax Statute (Decree 624 of 1989) and the Single Regulatory Decree on Tax Matters (1625 of 2016).
Guiding Principles of Tax Sanction Law
The application of sanctions must respect principles such as legality, due process, harmfulness, proportionality, favorability, and non bis in idem.
Legality and Typicality: No sanctions without prior law. The DIAN cannot impose sanctions by analogy.
Due Process: Guarantees notifications, defense, evidence and challenges.
Harmfulness: The sanction is only applicable if the conduct affects the treasury.
Proportionality and Graduality: Fair relationship between the seriousness of the conduct and the sanction. Article 640 of the ET regulates reductions.
Favorability: The most lenient rule applies as long as the act is not final.
Non Bis in Idem: It prohibits punishing the same conduct twice.
Part I: Typology and Settlement of Tax Sanctions
The Tax Code provides for multiple penalties: for declarations, formal obligations, invoicing, accounting books, RUT (Tax Identification Number), and others.
Summary table of sanctions
| Infringement | ET Article | Sanction |
|---|---|---|
| Untimeliness | 641 | 5% per month of delay (max. 100%). If summoned, double the amount. |
| Do not declare | 643 | 20% income (rent), 10% (VAT/INC), 100% omitted withholdings. |
| Correction | 644 | 10% voluntary, 20% after placement. |
| Inaccuracy | 647 | 100% difference; aggravated up to 200%. |
| Exogenous information | 651 | 1%, 0.7% or 0.5%. Max. 7,500 UVT. |
| Billing | 652, 657 | 1% up to 950 UVT or closure. |
| Accounting books | 654-655 | 0.5% income or assets (max. 20,000 UVT). |
| RUT | 658-3 | 1 UVT per day up to 100 UVT. |
| Unfair return | 670 | 10% volunteer, 20% by DIAN. |
Part II: Sanctioning Procedure in the Administrative Phase
The DIAN imposes sanctions through a regulated procedure: inspection, preliminary actions, decision, and appeal for reconsideration.
Table of the sanctioning procedure
| Stage | Description |
|---|---|
| Audit | Information requests, visits, crossings. |
| Site | To declare or correct, prior to sanction. |
| Special requirement | Justify the proposed sanction. |
| Statement of Objections | Formal notification of the planned sanction. |
| Provisional settlement | Proposal for temporary adjustment. |
| Decision | Sanctioning resolution. |
| Appeal for reconsideration | Deadline: 2 months. DIAN must resolve the issue within 1 year. |
Part III: Judicial Review in Contentious Jurisdiction
Once administrative channels have been exhausted, legal action for annulment and reinstatement may be brought before the courts and the Council of State.
Table of judicial review
| Instance | Competence | Observations |
|---|---|---|
| Administrative Courts | First instance | Lawsuits against DIAN actions are decided. |
| Council of State | Second instance | Unifies jurisprudence in tax matters. |
| Action for annulment and reinstatement | Contentious jurisdiction | It allows the act to be annulled and rights to be recognized. |
Conclusions and Strategic Recommendations
The DIAN's sanctioning regime is complex, formal, and has a high economic impact. It requires prevention, controls, and technical defense.
Main risks: Penalty for inaccuracy and penalties for exogenous information.
Good practices: Robust accounting, use of technology, timely responses to the DIAN, and ongoing training.
Defense: In administrative proceedings, focus on evidence and reductions. In judicial proceedings, address procedural flaws and base your case on principles.
