By: Alejandra Fuentes-Pieruccini
The monthly Value Added Tax (VAT) return form SAT-2237 establishes that taxpayers must submit a detail of local suppliers of the tax credit. In this section the taxpayer must enter the total number of suppliers, the Tax Identification Number (NIT), the name, number of invoices, base amount and amount of credit per supplier. In the event that the taxpayer does not submit the information indicated in the form, it is not possible to file the tax return, in accordance with the deadlines indicated in the law.
By virtue of said requirement in the form, a general unconstitutionality of the form was raised, alleging that it contravenes articles 44, 135 literal d) and 152 of the Constitution. Among the main arguments was that the Superintendence of Tax Administration conditioned the presentation of the information with the payment of the tax and did not request the information in accordance with the mechanisms established in the law. The Tax Administration has the power to carry out inspections and investigations necessary to establish compliance with tax regulations, it can only do so through the appropriate means established by law. Also, failure to submit the information will result in the impossibility to file the tax return, in accordance with the law.
By virtue of the approach, the Constitutional Court, in an order dated June 1, 2021, suspended the challenged paragraph. However, in the ruling dated March 31, 2022, the Court declared the unconstitutionality presented to the VAT supplier section in the Form SAT-2237 unconstitutional.
The Court indicated that the Superintendence of Tax Administration (SAT) is the entity that has within its attributions to require taxpayers to provide the elements that constitute the taxable base for the correct determination of the tax obligation and to authorize the forms and means other than paper to facilitate compliance with the obligations. Likewise, it has the power to organize and administer the system of collection, collection, inspection and control of taxes under its responsibility and to operate the procedures that facilitate taxpayers’ compliance with their tax obligations. Therefore, based on the regulations, the Tax Administration authorized the analysis section within the form, indicating that the form does not prevent taxpayers from complying with their tax obligations, but rather exercises a control to review compliance with their tax obligations. According to this argumentation, it is indicated that there is no violation of the articles indicated.
The Court also indicates that although a public official is only allowed to do what an express regulatory provision authorizes him to do and, therefore, he is prohibited from doing anything that is not expressly authorized, it is the Tax Administration’s power to establish the procedures for the payment of taxes, which are mandatory. Therefore, he considers that requesting the information of the suppliers in the form is within the powers of the Tax Administration.
Additionally, it indicated that although there are other methods to obtain information, these are applicable when the Tax Administration acts in its control and auditing work, which is different from its work of debugging amounts and details on the tax obligations of the taxpayers.
In accordance with the aforementioned arguments, the Court declared the unconstitutionality action unconstitutional.