Silencio Administrativo Positivo-SAP en el recurso de reconsideración tributario: tensión entre la garantía sustantiva y el formalismo procesal

Abstract

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.