Maestría Derecho Tributario

URI permanente para esta colecciónhttp://hdl.handle.net/11634/13486

Examinar

Mostrando 1 - 18 de 18

Presencia Económica Significativa en Colombia: implicaciones para la equidad tributaria y el concepto de Establecimiento Permanente
(Universidad Santo Tomás, 2026-06-22) Arias Bautista, Dailyn Marcela; Monzón Roa, Michelle Valentina; Leal Faber, Jorge Andrés; Universidad Santo Tomás
The digital economy has challenged traditional principles of international taxation, particularly those based on physical presence and the classical concept of permanent establishment. In response to these challenges, Colombia introduced the significant Economic Presence (PES), regime through Law 2277 of 2022, aiming to tax non-resident companies that generate substantial income in the Colombian market without physical presence. This research analyzes the legal and tax implications of the PES regimen in Colombia, its relationship with the permanent establishment concept, and its interaction with double taxation agreements. The study adopts a doctrinal and comparative legal approach, based on the analysis of national and international regulations, jurisprudence, specialized doctrine, and partial empirical assessment of the initial tax revenue generated by the PES regime. The research proposes a hybrid model for digital taxation that integrates the PES and permanent establishment concepts, supported by withholding mechanisms and administrative modernization, in order to enhance tax equity and fiscal sustainability in the digital economy.
Silencio Administrativo Positivo-SAP en el recurso de reconsideración tributario: tensión entre la garantía sustantiva y el formalismo procesal
(Universidad Santo Tomás, 2026-06-22) Villamizar Guarín, Jenny Lizeth; Vega Sánchez, Jennifer Paola; Romero Molina, Cesar Augusto; Universidad Santo Tomás
This research paper examines the figure of Positive Administrative Silence-SAP regarding the reconsideration appeal in tax auditing processes. The research problem arises from the evidence that the majority jurisprudence of the Council of State has distorted this guarantee by erroneously equating the positive fictive act with a procedural nullity defect, demanding a excessive formalism known as the "complete legal proposition" (proposición jurídica completa). Under an analyticalcritical methodological approach, with a documentary design and using the jurisprudential line engineering technique, the rulings issued between 2015 and 2026 are analyzed, alongside administrative gaps regarding electronic notifications. The results of the research propose a dogmatic rupture, arguing that Positive Administrative Silence (SAP) operates automatically as a legal revocation of the official determination act. Consequently, an inversion of the procedural burden is proposed through the 'acción de lesividad', so that it is the Administration who bears the costs of its omission.
Diseño de un mecanismo adecuado para gravar los ingresos generados por las plataformas digitales que prestan servicios de esparcimiento en el municipio de Ibagué
(Universidad Santo Tomás, 2026-05-12) Cuenca Vera, Andres Eduardo; Vesga Rueda, Nubia; Olivares Avila, Lorena Vanessa; Barajas Ortiz, Napoleón; Universidad Santo Tomas
Abstract Problem: The growth of digital entertainment platforms such as Netflix, Amazon Prime Video, and Disney+ has generated significant subscription-based revenues in the municipality of Ibagué, without an effective mechanism for collecting the Industry and Commerce Tax (ICA), despite the incorporation of the territoriality rule established in Law 1819 of 2016 into the Municipal Tax Statute (Agreement 015 of 2021). Objective: To design an appropriate regulatory and operational mechanism to tax the income generated by digital platforms in Ibagué, in order to prevent tax evasion and avoidance, strengthen tax equity, and optimize municipal revenue collection. Methodology: A mixed-method, descriptive, and deductive research approach was applied, including a normative analysis of the ICA regime in Ibagué and a comparative review of the tax statutes of Medellín, Bogotá, and Cali, as well as quantitative estimations of potential revenue increases based on official data and digital consumption studies. Results: The study found that Ibagué has sufficient legal grounds to tax such income but lacks a specific implementation and enforcement procedure; a positive financial impact on municipal revenues was also estimated. Discussion: A withholding tax system (reteICA) through financial institutions and electronic payment methods is proposed, articulated with technological tools and data cross-checking mechanisms, as a legally viable strategy to ensure the effective collection of tax from digital entertainment platforms. Keywords: Industry and Commerce Tax, digital economy, digital platforms, territoriality, revenue collection, Ibague
Análisis del impacto de la ley 1762 de 2015 en Colombia y su efecto fiscal en el periodo 2016-2024
(Universidad Santo Tomás, 2026-04-30) Mendoza Gómez, Yeina Lisbeth; Rivera Mantilla, Diego Ignacio; Universidad Santo Tomás
Problem: Despite the severity of Law 1762 of 2015, Colombia experiences persistent inefficiency in smuggling control, a phenomenon that causes fiscal losses exceeding 10 trillion pesos annually and distorts strategic sectors. Objective: The purpose of this research was to analyze the effectiveness of the regulatory framework and the implementation of the aforementioned law during the 2016-2024 period, evaluating its fiscal and operational impact. Method: A descriptive-analytical mixed methodology was adopted, based on a documentary approach for the evaluation of indicators from the Directorate of National Taxes and Customs (DIAN), the Fiscal and Customs Police (POLFA), and the Prosecutor's Office, incorporating a case study on the department of La Guajira. Results: The findings demonstrate a critical financial asymmetry in which the fiscal loss is 161 times higher than the investment in control, highlighting an obsolete model of physical interdiction against technical smuggling and money laundering. In La Guajira, an institutional imbalance was detected with an illegality incidence of 91% in the case of cigarettes. Discussions: The research concludes that the intensification of penalties is insufficient without a transition toward preventive technological surveillance and economic reconversion in border regions, suggesting that criminal policy prioritizes the symptom and not the financial structure of the crime.
Análisis del impacto de la prueba indiciaria en los procedimientos de fiscalización adelantados por la dian, respecto al impuesto de renta y complementarios
(Universidad Santo Tomás, 2026-04-30) Vera Beltrán, Clara Inés; Acuña Posada, José Luis; Rivera Mantilla, Diego Ignacio; Universidad Santo Tomás
This study analyzes the legal and evidentiary impact of circumstantial evidence in the audit procedures carried out by the Colombian tax administration, specifically in relation to income tax and supplementary taxes.The central issue addressed lies in the tension between administrative efficiency in detecting simulated or undeclared taxable events and the taxpayer's procedural guarantees, in particular due process and the principle of legality.The main objective of this study is to analyze the legal and evidentiary impact of circumstantial evidence in the audit procedures carried out by the Colombian tax The central issue addressed liesin the tension between administrative efficiency in detectingsimulated or undeclared taxable events and the taxpayer's procedural guarantees, in particular due process and the principle of legalityof evidence. The overall objective was to examine the normative, jurisprudential, and doctrinal criteria that define the legitimate, valid, and limiteduse of circumstantial inference in the Colombian tax context, with an emphasis onthe decisions issued by the Fourth Section of the Council of State. Methodologically, a qualitative descriptive and analytical approach was appliedthrough a systematic review of legal sources, specialized doctrineand representative judgments between 2011 and 2024. The main findings show that, although circumstantial evidence strengthens the effectiveness of taxation and allows economic realities to be reconstructed in the absence of direct evidence, its legal validity requires compliance with strict standards of motivation, contradiction, and logical reasonableness
Eficacia de la implementación del régimen especial ZESE frente a la generación de nuevos empleos directos en el Departamento Norte de Santander en el periodo comprendido entre 2020 y 2023
(Universidad Santo Tomás) Celis Velasco, Sandra Milena; Pérez Pineda, Ingrid Paola; Rivera Colmenares, Bertolt Delfin
The special tax regime includes fiscal benefits aimed at companies located in geographical areas of Colombia known as Special Economic and Social Zones (ZESE), with the purpose of boosting the regional economy and formal employment. This research aimed to analyze and establish the effectiveness of the regime in question, implemented in the department of Norte de Santander, with a specific focus on its capacity to generate new direct jobs. The methodology adopted for this study is based on a qualitative perspective, supported by an analysis of relevant documents and statistical reports. This study reveals that the implementation of the ZESE regime has had a considerable impact on job creation in the region. The results obtained from data collection and analysis indicate that the tax incentive provided by the regulation has been a fundamental factor in attracting investments and promoting the creation of new sources of employment. The collected evidence suggests that the rates of direct job creation resulting from the implementation of the ZESE measure are significant. This positive trend in job creation is directly related to the regime's capacity to stimulate investment and economic development in the Norte de Santander region. Ultimately, the benefits derived from the tax incentive provided by the ZESE regime far exceed the possible costs associated with a reduction in tax revenue. The results of this research point to the fact that the positive impact on job creation and the consequent strengthening of the local economy fully justify the adoption and continuity of this tax approach.
Límites constitucionales y jurisprudenciales a la libertad de configuración legislativa del Congreso en materia de regulación del Impuesto al Valor Agregado (IVA)
(Universidad Santo Tomás, 2024-12-12) Ramírez Aroca, Silvia Yineth; Ruiz Sánchez, Gustavo Adolfo; Rivera Colmenares, Bertol Delfin
This research is descriptive-documentary and uses the analytical and interpretive method; Initially, information was collected that was later reviewed and analyzed with the objective of determining what the constitutional and jurisprudential limits are to the legislative configuration of Congress in matters of regulation of the Value Added Tax (VAT), the above taking various theoretical positions as references, concepts and pronouncements on the study of the tax and economic implications of the value added tax (VAT) and its participation in the financing of plans, programs, projects and public policies designed by the national government with the objective of understanding the reason for being of those limits, their source or origin and importance, making a study of the principles of the tax system not only as sources of legal interpretation but also as criteria of authority in the design, structuring, approval and promulgation of laws that deal with indirect taxes and specifically on value added tax VAT.
Principios constitucionales que rigen el sistema tributario en el estado de excepción denominado emergencia económica, social y ecológica
(Universidad Santo Tomás, 2024-09-17) Alarcón Prada, Liliana Rocío; Rueda Santana, Marco Aurelio; Romero Molina, César Augusto
States of exception are responses, based on legality, imposed by the Political Charter in the face of serious and abnormal situations that cannot be faced by the State based on its ordinary powers. However, a characteristic characteristic of the constitutional State is that this competence cannot be all-encompassing or arbitrary. The higher order imposes a series of requirements and conditions that must be met, both in the legislative decrees that declare the state of exception and in those that provide for extraordinary legal measures to confront the crisis, usually known as development decrees. Likewise, there are the principles that govern the tax system, whose limits and scope in the application of tax regulations determine the limit to the tax arbitrariness that the State has and regulate the relationships with the individuals that comprise it. It is important to analyze how the constitutional principles that govern the tax system operate in the state of emergency called economic, social and ecological emergency, determine if these principles have been respected and if there has been the motivation referred to in the Statutory Law of the States of Exception due to economic, social and ecological emergency for the National Government to create such taxes, this in order to visualize how important it has been for the rulers to respect the political constitution, since these principles constitute the parameters to determine the legitimacy of the tax system, Likewise, present the analysis of the tax powers of the territorial entities under the state of economic, social and ecological emergency.
La participación en la plusvalía (PP) como instrumento de financiación de desarrollo urbano en Colombia: fortalezas, debilidades y lecciones aprendidas
(Universidad Santo Tomás, 2024-08-26) Sanabria Sierra, Yerlis Bibiana; Losada Posada, Benjamín
The 1991 Political Constitution of The Republic of Colombia promoted both administrative and tax decentralization of the country, as well as it strengthened land-use planning policies. In this regard, it established that Special Districts and other municipalities must generate their own revenues in order to guarantee self-sustainability and development. For doing so, it gave local and regional governments a free hand in terms of financial strategies for land-use management and capital gains tax (CGT) for the attainment of economic revenues. In terms of land-use management and planning policies, the surplus value allows to regulate the economic benefits and prevents land speculation by the owner, as well as it assigns a percentage of this surplus value to local administrations to be then redistributed among the community and obtain a collective benefit. In light of Law 388 of 1997, the tax-generating fact is stablished by administrative decisions that authorize a property a more profitable land use or increase the use of the land by permitting a larger built-up area to be profited. This research, based on a hermeneutic and descriptive-qualitative methodology, analyzes CGT in a critical and argumentative manner as an instrument to collect the necessary economic incomes for the development of districts and municipalities in Colombia. Therefore, its potential strengths, weaknesses, its context of application as well as relevant lessons learned through the investigation are here discussed. In conclusion, it is important to raise public awareness regarding the potential of this instrument as a collective right since more than two decades after the establishment of this tax, its implementation has been very low, not only due to institutional incapacity but also due to lack of political will.
Equidad de Género y Tributos en Colombia
(Universidad Santo Tomás, 2023-09-28) Ramírez Bustamante, Mayerly; Bonilla Angarita, Claudia Yaneth; Lopez Albán, Grety Patricia
The research entitled gender equity and taxation in Colombia had the objective of analyzing whether Colombia has implemented public tax policies with a gender perspective based on the international commitments assumed in international treaties, through a descriptive and documentary methodology, which identifies and describes the international treaties and the recommendations for the implementation of public policies and their relationship with the Colombian regulations with a gender perspective; it also describes the pronouncements of the Constitutional Court and the Council of State and the identification of the aspects in which Colombia must work to comply with the commitments acquired in the international treaties. As main findings, it was determined that although there is some progress in Colombia to achieve gender equity in tax matters, there is still work to be done. The country has a Gender Equity Public Policy classifier, which seeks to favor women in the implementation of tax, expenditure, and financing instruments. In addition, the Inter-American Development Bank has provided support in this area by conducting gender-sensitive income incidence analyses.
La tributación en el impuesto de renta en Colombia de las plataformas digitales extranjeras que prestan servicios en Colombia y las nacionales que prestan servicios en Colombia y en el exterior
(Universidad Santo Tomás, 2023-07-12) Santoyo Núñez, José Alexander; Barajas Ortiz, Napoleón
In mid-2020, when the pandemic was at its maximum expansion worldwide, digital platforms were used to face the restrictions established by the governments of each country, to stop the spread of COVID-19; Additionally, before the start of the pandemic, digital platforms gained prominence, allowing the diversification of economic and financial activities, to offer goods and services and therefore several multinationals, yielded high revenues; however, taxation by way of income tax in the countries where they provide services is not taxed on all income, nor on profits obtained, as revealed by ECLAC; In addition, digital platforms have shifted taxable profits to low or no tax jurisdictions; Given this scenario, some countries included the tax on digital platforms, called GAFA (Google, Apple, Facebook, Amazon) for the services provided by these multinationals in their territories. Therefore, the objective of this thesis is to design a model of taxation in the income tax to foreign digital platforms that provide services in Colombia and national platforms that provide services in the country and abroad, which describe the elements of the tax obligation, tax jurisdiction, and strategies to collect the tax and pay it to the Colombian state, without depending on the creation of the permanent establishment for foreign digital platforms that provide services in Colombia. The methodology applied is descriptive and analytical in deepening mode.
Principio de la Capacidad Económica y sus Efectos en la Tributación Ambiental
(Universidad Santo Tomás, 2023-03-03) Olachica Vargas, Aderson Alirio; Romero Molina, César Augusto
This paper presents a research on the principle of economic capacity and its effects on environmental taxation. To this end, a normative, jurisprudential and doctrinal analysis of the environmental taxation in Colombia will be carried out. In addition, the environmental tax structure in the country will be described from the point of view of the principle of contributive capacity to compensate the negative impacts caused to the environment. Likewise, the legal, jurisprudential and doctrinal framework of environmental taxation in Colombia is identified, while explaining how the principle of contributive capacity applies to environmental taxes in Colombia. To achieve the above, a descriptive-analytical research methodology was implemented, with a qualitative approach and documentary review design; the latter was used through primary and secondary sources, such as documents of public institutions, documentation of the Constitutional Court (jurisprudence); in such a way that it allowed concluding that environmental taxation has the objective of protecting the environment, through the exercise of the duty to contribute, therefore, everyone who has a certain level of economic capacity must contribute, which makes it necessary to classify as taxable events all the circumstances indicative of this economic capacity.
Alcance de la responsabilidad tributaria del representante legal de la sociedad por acciones simplificada s.a.s
(2022-07-25) González Toloza, Sonia Patricia; Collazos Rincón, Ruth Ester; Barajas Ortíz, Napoleón
This research has as purpose to analyze the tax liability of the Legal Representatives of the Simplified Joint Stock Companies, best known as SAS, considering that this type of company has become one of the most used in Colombia since its creation by Law 1258 of 2008. The above, due to the streamlining of registration procedures that implies less time and costs, as well as other benefits for shareholders, who are protected from any responsibility for the corporate business obligations, except when the company is used for fraudulent activities against the law or to the detriment of third parties. Thus, it can be determined that when it refers to taxes, the SAS industries do not have many differences with other types of companies. However, all the subject boils down to the liability of the partners regarding the obligations to the tax authorities. Having studied the concepts and applications of tax liability in Colombia (classified as jointly and severally and subsidiary); this study concludes that the Legal Representatives should attend -liable and subsidiarily - for the non-compliance of the formal duties of the corporation in those cases wherein the Administration has first brought a proceeding against the organization and when the payment of the tax obligations has not been completed.
Análisis del impuesto a la renta en las personas naturales en Colombia a la luz del derecho al mínimo vital
(2022-06-29) Larrota Medrano, Luz Stella; Barajas Ortiz, Napoleón
The vital mínimum is a fundamental right enshrined in the Political Constitution of Colombia. This right has been regulated by law, in order to guarantee balance in society and is closely related to human dignity; framed within a political, social, economic and fair organization. The present investigation focused on determining the impact of the right to the vital minimum and its relationship with the income tax of Colombia. The development of this research in a general sense was qualitative. Legal and tax information was analyzed using a dogmatic-legal methodology, based on historical and deductive methods; for which the documentary research tools such as hemerographic and legislative tools were used. Additionally, the jurisprudence issued by the constitutional court and the Council of State with reference to the impact of income tax and the vital minimum in Colombia was analyzed. As conclusions, a suggestion for the national government was presented, taking into account the Covid-19 pandemic, aid as a representation of the vital minimum and its relationship to income tax, the establishment of a mechanism for people, who could not follow paying the mortgage on their home to the corresponding bank, for being unemployed and the entrepreneurs who had to close their businesses, a minimum of five years to help, while the environmental crisis and the economic social crisis ends, to pay their tax payments to the rent.
Análisis del principio de la no confiscatoriedad del impuesto de industria y comercio en el transporte de carga terrestre realizado por la Cooperativa Santandereana de Transportadores Limitada “Copetran” durante el periodo 2018-2019
(2021-08-30) Saavedra RodrÍguez, Claudia Elena; Caicedo Solano, Jaime; Romero Molina, César Augusto; Universidad Santo Tomás
Non-confiscation is a constitutional tax principle that guarantees the right to private property; which is fundamental of any democratic state. This principle establishes limits to the tax authority, granted by the political constitution to the legislative bodies of national and municipal order, to guarantee the rights of taxpayers. In this sense, this research analyzed the principle of non-confiscation of the industry and trade tax inland freight transport carried out by Copetran during the 2018-2019 taxable periods. For the development of this work, a dogmatic-legal and legal-purposeful methodology was established. The legal, juridical, and tax information including the requirements issued by the territorial entities for the mentioned periods were requested in writing from the company through the tax department to define the tax environment. In turn, the possible scenarios in which the principle of non-confiscation regarding the industry and commerce tax was violated were identified through the analysis and classification of the mayors' notices to the cooperative. As the main finding of the study, a persuasive official letter issued by the Buenaventura mayor's office in 2019 was identified, where possible indications were found to violate the principle of non-confiscation attributing tax burdens to factual assumptions not determined in the regulations or the jurisprudence. Consequently, it is suggested that the territorial entity of Buenaventura violates the constitutional precepts and the right to private property, adversely affecting the economic growth of Copetran.
El principio de favorabilidad aduanera en la jurisprudencia del Consejo de Estado
(2021-06-14) Gómez Bueno, Elsa; Reyes Alfonso, Gloria Yolanda; Romero Molina, César Augusto
The favorability principle in the customs law is a figure which allows the application of the most favorable law to the taxpayer. To apply this principle, the Colombian law states that it is mandatory that the audit institution has not finished the juridical problem. In conducting the present study, it was applied a documentary methodology where it was analyzed and study some decisions from the “Consejo de Estado” in the period 2002-2019 which have analyzed the figure of the favorability principle. Subsequently, the research study the favorability principle in the cases of audit, juridical nature of merchandise, and administrative penalty law.
Evaluación de los efectos de los incentivos tributarios en el régimen de zonas francas en Colombia: estudio de caso Zona Franca Santander período 2008-2018
(2021-04-05) Martinez Moreno, Jeanelle Andrea; Nuñez Rueda, Carlos Alberto; Cabrera Cabrera, Omar Sebastián
This research assesses the effects of tax incentives granted to Free Zones, from the case of the Santander Free Trade Zone, in 2008-2018 with respect to investment and job creation. Go to the qualitative method and the analysis of documents and reports. It concludes that one of the most representative results of the investments that the ZFPS corresponds to the promotion and generation of new companies within the industrial park and that in terms of job creation, the ZFPS has a significant impact due to its significant rates of creation of new sources of employment, so the benefit with the tax incentive is greater than the cost of not collecting it.
Propuesta para el diseño de un modelo de tributación directa en las operaciones de comercio electrónico en Colombia enfocado a plataformas digitales internacionales
(2019-10) Quijano Torres, Gerson Alexander; Barajas Ortiz, Napoleón; Romero Molina, César Augusto
The great and unexpected expansion of information and communication technologies led to the development of electronic commerce; mainly framed in the commercialization of goods and services through the internet, by new elements of information transfer called digital platforms. The constant growth of this new form of commerce transformed the traditional way of doing business around the world, which created great challenges in the legal and tax systems of each nation. Several international organizations headed by the European Union, Group of 20 and the Organization for Economic Cooperation and Development have formulated unfinished guidelines to regulate electronic commerce, which causes significant losses of national and international treasury. In Latin America, most countries do not have a tax model, including Colombia; which allows the avoidance of direct taxes, specifically the income tax. Therefore, the objective of this work was to design a model of direct taxation in electronic commerce operations in Colombia focused on international digital platforms. The development of this research in a general sense was of a qualitative dogmatic-legal nature. The proposed taxation model was based on the constitutional tax principles and international tax law and established the minimum guidelines necessary to regulate these transactions, based on the substantial link determined by the creation of value and the restructuring of the concept of permanent establishment; in order to contribute to the erosion of the tax base and the transfer of benefits, to provide good competition, the free movement of capital and ensure the efficiency of collection, impacting on the increase in the public treasury for the promotion and development of projects in education, sport, culture, science and technology.

Examinar

Envíos recientes