Rewards for reporting evasión

The Ministry of Justice is currently developing a pilot project aimed at purging from the legal system all norms that are obsolete, useless or have fallen into disuse. Already 12,745 norms have been identified that will be expelled from the legal system because their purpose has already been fulfilled, or because they were issued in the framework of a state of exception and were not adopted as permanent legislation, or because they are simply inapplicable.

The purpose of this column is to analyze a rule that generates great legal uncertainty and that -as recognized by the Dian- is inapplicable, so it must necessarily be part of this inventory of rules that will be removed. This is Article 37 of Law 863 of 2003 (tax reform of 2003) which establishes incentives and rewards for reporting tax evasion. According to the text of this "whoever reports facts that constitute inaccuracy, providing evidence or concrete information that allows to officially liquidate the evaded taxes and sanction the offender, shall be entitled to a cash reward equivalent to 50% of the inspection costs".

The Dian, through Official Letter 020254/2012, ratified the doctrine set forth in Official Letters 355/2007, 78852/2009 and 733/2011 according to which such benefits for reporting evasion are inapplicable since the law did not define the concept of "audit costs" and, based on such criterion, denied a request from a citizen who argued that, given that the concept of control costs is implicitly specified in the legal system and that it could be determined by analogy with the rewards recognized for smuggling, he requested that the regulations concerning the recognition of the rewards be made and that the budgets of the entity be added with the necessary items for their recognition. In the referred Official Letter 020254 the Dian expressed that "there is no doubt about the impossibility of applying Article 37 of Law 863 of 2003 until the legislator expressly establishes the system and the method to define the judicial costs".

The unconstitutionality of this provision was challenged and, in judgment C-910/2004, the Constitutional Court refrained from issuing a ruling on the merits under the argument that the plaintiff had merely pointed out the gaps in the provision and thus predicated its unenforceability for violating the principle of legality, but had not built a real charge of unconstitutionality and therefore the Court should refrain from issuing a decision on the merits in this regard.

This rule is not only obsolete because it is inapplicable, but it also confuses dangerously by appearing to offer rewards (that will never be paid) for acts that could constitute crimes, as is the case, for example, of the crime of omission of assets and inclusion of nonexistent liabilities. This is also because, according to numeral 3 of article 3 of Decree 4048 of 2008, the Dian is responsible for recognizing and paying rewards and participations in cash or in kind for "effective collaboration of third parties in the control of smuggling, evasion and corruption", which gives it an appearance of legality and motivates massive and irresponsible denunciation of hypothetical acts of evasion in search of rewards that will never be paid.

Thus, this is an ideal norm to be part of this process of purging useless and obsolete regulations, since its existence only generates legal insecurity.