Tax crimes have taken center stage in the criminal prosecution carried out by the Attorney General’s Office through its Specialized Directorate against Tax Crimes, due to the most recent changes in tax collection policy. Thus, it is estimated that, according to the Shock Plan against Evasion, between 2020 and 2022, around 80 criminal structures dedicated to tax evasion, among other related crimes, were dismantled, of which at least 500 people have been prosecuted.
In this context, the tax collection policy of recent years has been characterized by one constant: the creation of new crimes and, once these are included in the Penal Code, the expansion of their scope of the prohibited. Proof of the first is the introduction into the Colombian legal system of the crime of omission of assets or inclusion of non-existent liabilities – through Law 1819 of 2016 – and, with the next tax reform of the national government – that is, Law 1943 of 2018 – , the addition of the crime of tax fraud or evasion.
Regarding its expansion, its verification is evident, since, for example, in the case of the crime of tax fraud or evasion, its punishability started from 250 legal minimum monthly wages in force, however, today this punishable act is erected as a relevant conduct for criminal law from 100 salaries, an unencouraging panorama for the limiting principles of the ius puniendi that see their postulates being flexibilized for utilitarian reasons based on tax collection and the expansive phenomenon that criminal law has been facing.
Now, it is no secret to anyone that the company, on many occasions, is the one that really holds the power to contribute to the support of public charges and, as a result, it is on whom the quality of taxpayer falls, so that, even recognizing that in Colombia there is no criminal liability of legal entities, it is true that for these, as a result of the tax crime, a series of risks arise – eventually, given its materialization, we would speak of responsibilities -, such as:
1. Legal and criminal risk arising from Article 91 of Law 906 of 2004: This entails the suspension and cancellation of the legal entity that has been totally or partially engaged in criminal activities.
2. Administrative sanctioning risk stemming from the possible application of Law 2195 of 2022 against the legal entity or branch of a foreign company that has benefited from and tolerated or consented to the crime of one of its administrators or -in a broad sense- officials.
3. Risk of asset forfeiture due to its possible connection: This refers to assets that are the direct or indirect product of an illicit activity, such as a tax crime, or that correspond to the material object of such an activity, that are part of an unjustified increase in assets, among other hypotheses that could fit into an asset forfeiture cause in which the Colombian state would pursue a declaration in its favor of the assets that are the patrimonial consequence of illicit activities or that have seriously deteriorated social morals.
4. Reputational risk: This would be the consequence of the above, leading to a commercial stigma towards the company linked to any process of the nature and gravity just mentioned, which, of course, would represent serious barriers when it comes to carrying out commercial agreements with other companies, since the company would present a series of alerts within the compliance program of its business partners, which could lead, in certain cases, to a refusal to enter into such agreements.
In this context, the Colombian state has been implementing a strong criminal tax collection policy hand in hand with two of its strongest entities: the Attorney General’s Office of the Nation and the National Tax and Customs Directorate. The purpose is a shrewd fight against tax evasion: This is represented by the tax crimes contemplated in the Criminal Code, from which a whole complex panorama arises for the company that is complacent with the fact that, for its benefit, its administrators or officials commit this type of crime, which would lead to a series of risks that would take any organization that faces them to a commercial crossroads.
For these reasons, we have considered that the path should be a risk-based approach: This should be accompanied by constant advice that allows for the prevention and mitigation of the entire panorama of risks faced by the Colombian business sector, which is the engine and driving force of our national economy and an insurmountable example of drive and hard work.
