De la rigidez a la incertidumbre jurídica: Tensiones y desafíos del modelo ecléctico en la potestad tributaria territorial en Colombia

Abstract

This article analyzes the evolution of the jurisprudence of the Colombian Constitutional Court regarding territorial taxing power, with particular emphasis on the tension between territorial fiscal autonomy, recognized in Article 287 of the 1991 Constitution, and the principles of tax legality, predetermination, and stability established in Article 338. The study adopts a doctrinal-jurisprudential approach to identify the main stages in the Court’s interpretation: an initially rigid or centralist approach, followed by a more flexible approach, and ultimately an eclectic model based on shared competence and the doctrine of determinability. The analysis examines constitutional provisions, judicial precedents, and doctrinal contributions, and considers cases concerning the industry and commerce tax, the motor vehicle tax, and territorial fees and surcharges. The findings show that, although the eclectic model has contributed to balancing territorial autonomy and the statutory reservation principle, significant practical challenges remain in the exercise of territorial taxing powers. In particular, the lack of uniform criteria regarding concepts such as the “minimum legal framework,” “general parameters,” “determinable taxable event,” and “minimum regulatory intensity” has generated divergent interpretations, regulatory heterogeneity, and increased litigation. Consequently, while shared competence strengthens fiscal decentralization and gives substantive effect to territorial autonomy, it also creates legal uncertainty for both territorial entities and taxpayers. The article concludes that greater legal precision is required to define the distribution and limits of taxing powers between the national government and territorial entities, in order to reconcile fiscal autonomy with tax legality, legal certainty, and the predictability of the tax system.