Juan David Bazzani Montoya

Managing Partner

[email protected]

Colombia's National Tax and Customs Directorate (DIAN) has launched an aggressive campaign aimed at ensuring that taxpayers who fail to pay their taxes are subjected to criminal prosecution. This is an unfortunate strategy that places businesspeople in a more discreditable position than some of the most serious criminals in the country.

A concerning legal theory has begun to gain traction: that the mere failure to pay taxes is sufficient to justify criminal charges for tax offences. This position should be firmly rejected, as it disregards a longstanding principle of criminal law doctrine that unequivocally prohibits strict liability.

From the perspective of criminal law, the existence of a criminal offence requires both an objective and a subjective element of the offence. In other words, it is not enough to establish the objective conduct—which, in this context, would be the failure to pay a tax obligation. It is also necessary to prove the subjective element, namely that the individual acted with criminal intent (dolo).

An official tax assessment issued by the DIAN, or a report identifying the tax periods in which a particular tax was not paid, is not sufficient on its own to conclude that a criminal offence has been committed. If the Prosecutor's Office were to bring charges based solely on such evidence, the case would almost certainly result in an acquittal.

The Colombian Supreme Court of Justice has adopted a similar approach in relation to the offence of possession of controlled substances. In that context, the Court has held that "the isolated act of carrying a controlled substance is, in itself, atypical unless accompanied by the specific purpose [of trafficking]."1 According to the Court, "there is an implicit subjective element within the criminal offence, requiring verification of the carrier's intention, namely whether the purpose is personal use or distribution and trafficking."2

A clear parallel can be drawn with tax offences. Criminal law does not punish the mere omission of paying taxes, since that conduct is already subject to administrative sanctions. Rather, criminal liability arises only where the failure to fulfil a tax obligation is accompanied by an underlying intention to defraud the tax authorities.

Readers may wonder why, if this principle is so clear, there is little specific case law addressing the issue. The explanation lies in a practical feature of Colombian criminal procedure. Tax offences generally allow the criminal proceedings to be terminated once the outstanding tax obligation has been fully paid. Consequently, taxpayers who are able to extinguish the criminal action through payment will almost invariably choose that course rather than pursuing lengthy litigation that could establish judicial precedent. As a result, very few cases reach the Supreme Court for review. Nevertheless, this does not alter the underlying legal principle, and should such a case eventually reach the Court, it should, in our view, be decided consistently with the approach outlined above.

This is precisely where criminal defence lawyers play a critical role in advising clients on tax-related criminal matters. Such cases extend well beyond the accounting verification of whether taxes have been paid. Once a matter enters the realm of criminal law, it is the principles and safeguards of criminal law that must govern the proceedings.

References

1.Colombian Supreme Court of Justice, Criminal Chamber, Judgment SP025-2019.

2.Ibid.