El principo de lesividad y la obligación tributaria

Abstract

The State, to function, needs to finance expenses and investments; it must have sources of income to guarantee the fulfillment of its purposes; for this purpose, it has an exceptional power, which is tax collection. This power of the State to collect taxes is based on the principle of tax legality, according to which taxes can only be created, modified, or abolished by law. This principle is enshrined in Article 338 of the Colombian Political Constitution, and in accordance with Article 150, paragraph 12, of the same Constitution, Congress has the power to establish tax contributions. Pursuant to Article 95 of the Political Constitution, citizens are required to contribute to the financing of state expenditures and investments. Furthermore, to ensure compliance with tax obligations, the State is granted sanctioning powers. A procedure is established to determine the possible sanctions applicable in the event of non-compliance. The sanctioning procedure in tax matters must respect the principles of harmfulness and favorableness. In such a way that the State, when imposing sanctions, must guarantee due process and the fundamental rights of taxpayers. This is where the question may arise: ¿Does every omission really generate harmfulness for the State ?. Because situations that do not constitute harm to the State may arise, and in this study we will determine whether the criterion of harm should be interpreted restrictively or, on the contrary, should yield to the principle of favorability.