La efectividad del crédito tributario en el proceso de liquidación judicial ¿Un desafío para los principios constitucionales de justicia y equidad tributaria?

Abstract

In Colombia, Law 1116 of 2006 allows distressed merchants to resort to two bankruptcy mechanisms: the Business Reorganization Process and the Judicial Liquidation. This paper will analyze the Judicial Liquidation process, which seeks to recover credits, where several creditors compete, including the State, which participates with the tax credit, which may be affected by the decisions made by the bankruptcy administrators, which may violate the principles of tax justice and equity. The objective of this paper is to examine whether the effectiveness of the tax credit in the business insolvency regime is limited by the decisions made by the liquidators. To this end, the systemic-qualitative method is used to describe the powers of the trustees and other bankruptcy subjects within the judicial liquidation process, and to determine their influence on the tax credit and, therefore, their impact on the principles of tax justice and equity. This is a relevant topic, as bankruptcy administrators may make decisions that negatively affect the recovery of the tax portfolio, such as prioritizing the payment of other debts over tax obligations or selling assets at prices lower than their market value, which compromises the general interest of the Nation and creates inequities in the distribution of tax burdens, violating established constitutional principles.