Las cláusulas de limitación de beneficios y propósito principal del CDI Colombia–Brasil frente a la seguridad jurídica del contribuyente

Abstract

The Double Taxation Convention (DTC) between Colombia and Brazil, aimed at eliminating double taxation and preventing tax evasion and avoidance, was signed in Brasília on August 5, 2022. It serves as a significant instrument for cooperation, incorporating measures to prevent instances of non-taxation or reduced taxation resulting from avoidance strategies or abusive practices. This study analyzes the compatibility of the Limitation on Benefits (LOB) and Principal Purpose Test (PPT) clauses found in the Colombia–Brazil DTC with taxpayer legal certainty, considering their role as mechanisms to prevent the abusive use of treaty benefits. The issue arises from the need to reconcile two distinct objectives within the DTC: preventing the abusive use of treaty benefits and ensuring that taxpayers can reasonably foresee the tax consequences of their transactions. To this end, the study examines the evolution of anti-abuse measures in double taxation conventions and analyzes Article 28 of the Colombia–Brazil DTC, identifying the criteria established by the LOB and PPT clauses while incorporating expert commentary and an analysis of Colombian Constitutional Court jurisprudence. The findings indicate that the DTC clauses are not incompatible with legal certainty, provided that their future application is grounded in an interpretation aligned with the text, object, and purpose of the convention. The study concludes that preventing abuse and fostering legal certainty are compatible objectives within DTCs, provided that a distinction is made between legitimate tax planning and abusive exploitation through predictable criteria that limit administrative discretion.