Procedencia de sanciones del artículo 616 del Estatuto Tributario en contribuyentes no responsables del IVA

Abstract

The sanctioning regime of Article 616 of the Colombian Tax Code has been applied to taxpayers who are not liable for Value Added Tax and who lack formal accounting obligations, generating an unresolved legal tension between the punitive power of the tax administration and the constitutional principles of legality, specificity, and proportionality. The study analyzed the legal grounds for imposing such sanctions on this group of taxpayers, considering the limits of the sanctioning authority of the Dirección de Impuestos y Aduanas Nacionales in the absence of verifiable information about their actual income. To this end, a qualitative socio-legal approach was adopted, with descriptive and analytical components, based on the systematic analysis of normative, jurisprudential, and administrative sources organized into normative, jurisprudential, and administrative case analysis matrices. The results showed that the obligation to issue invoices is contingent upon holding the status of VAT liable taxpayer, that the constitutional principles of sanctioning law materially limit the applicability of the sanction to subjects who do not hold that status, and that the absence of verifiable accounting records creates a structural evidentiary gap that undermines the validity of sanctioning administrative acts issued by the tax authority against this group. It is concluded that sanctioning proceedings conducted without verifiable accounting information not only lack legal effectiveness but also produce institutional strain, erode the legitimacy of the tax system among small taxpayers, and discourage voluntary formalization — effects that run contrary to the fiscal policy objectives set forth by Law 2277 of 2022.