Análisis de la inexistencia del título ejecutivo en el cobro coactivo de la retención en la fuente en Colombia: la ineficacia de pleno derecho vs. El debido proceso.

Abstract

This article analyzes the profound legal and doctrinal tension between the concept of ineffectiveness by operation of law"—applicable to withholding tax declarations filed without full payment (Art. 580-1 of the Tax Statute)—and constitutional guarantees of due process. Specifically, it questions the administrative practice of the National Directorate of Taxes and Customs (DIAN) of initiating coercive collection proceedings based on instruments that, by express statutory mandate, lack legal existence and binding effect due to their ineffectiveness. It explores whether the absence of a prior, reasoned administrative act—which would formally declare this status and allow the taxpayer to exercise their right to contest the matter—vitiates the legality of the enforcement action and violates the principle of legal certainty for the taxpayer. Through a detailed analysis of regulations and an exhaustive review of jurisprudential evolution, the article examines the procedural paradox that arises when the legislature, in its zeal to prioritize collection efficiency for the achievement of essential objectives, seeks to confer executive force (clarity, specificity, and enforceability) upon a document that the law itself has excluded from the legal system. Finally, the article establishes the validity of the defense based on the non-existence or lack of an enforceable title as the appropriate and robust technical mechanism to counter coercive collection efforts. The conclusions demonstrate that, although ineffectiveness by operation of law aims to optimize and ensure the efficiency of state revenue collection, the pursuit of these goals cannot be built upon the violation of legal certainty, legitimate expectations, and the taxpayer's procedural guarantees.