Principio de favorabilidad: Omisión legislativa en las cargas tributarias

Abstract

The principle of favorability is that citizens can preferably apply the rules that are most favorable to them; We find this principle as a benefit in different areas of law. From the Political Constitution of 1991, its application can be evidenced both in the criminal and labor fields; For its part, Article 29 of the Magna Carta stipulates that this principle is applicable in criminal matters, which indicates that, “in criminal matters, the permissive or favorable law, even when it is later, will be applied in preference to the restrictive or unfavorable"; on the other hand, we find article 53 also of the Political Constitution, which protects the principle of favorability in labor matters, stating: “Congress shall issue the labor statute. The corresponding law will take into account at least the following fundamental minimum principles:… a situation more favorable to the worker in case of doubt in the application and interpretation of the formal sources of law… ”; however, in the Political Constitution we do not find that the principle of favorability can be applied in tax matters; In addition to the above, Article 363 of the Magna Carta indicates that “the tax system is based on the principles of equity, efficiency and progressiveness. Tax laws will not apply retroactively. ” Against the principle of favorability in tax matters, there is a legislative advance with Law 1607 of 2012, which in its article 197 # 3 established the principle of favorability in tax penalties; this article was repealed with Law 1819 of 2016 article 376, which also contemplates the principle of favorability in tax sanctioning matters; however, the application of this principle for tax burdens has not yet been established by law. In many cases, controversies between taxpayers and the Directorate of National Taxes and Customs (DIAN), which is the entity in charge of collecting national taxes such as Income Tax, Value Added Tax (VAT), Tax on Heritage, among others; Due to the fact that officials do not apply the principle of favorability, despite the fact that on several occasions the principle has been extended in tax matters through jurisprudence from both the Council of State and the Constitutional Court. Based on the above, the objective of this article is to analyze the regulatory gap that exists against the principle of favorability in tax burdens. The Political Constitution of 1991 is taken as the basis for determining the application of the principle in criminal and labor matters, the Colombian Tax Statute and different jurisprudential advances both from the Council of State and from the Constitutional Court.