One of the most widespread myths in tax criminal law is that if the Colombian Tax and Customs Authority (DIAN) does not issue a prior request, the taxpayer cannot be criminally charged. This interpretation has been upheld by numerous defenses in legal proceedings. However, the recent Supreme Court ruling SP1593-2025 refutes this argument, clarifying the autonomy of criminal law with respect to administrative procedures.
The specific case:
In this ruling, the Court resolved the case of a legal representative accused of the crime of withholding agent omission for failing to deposit the collected VAT within the legal deadline. The defense argued that, since the DIAN (National Tax and Customs Directorate) had not exhausted a persuasive collection process, a procedural requirement had not been met.
However, the Court was emphatic:
“The procedural requirement is NOT in Law 906 of 2004, nor can it be derived from extra-penal regulations such as Decree 3050 of 1997.”
The Supreme Court’s position:
The ruling clarifies that criminal law does not depend on prior administrative procedures. The withholding agent’s omission is an independent crime that is established when three essential conditions are met:
- Filing the tax return.
- Failure to pay within the following two months.
- The awareness of the obligated party regarding their legal duty to deposit those resources.
In this sense, the mere expiration of the deadline without the corresponding payment already constitutes a punishable offense, regardless of the action —or inaction— of the DIAN.
Legal consequences:
This precedent marks a turning point. In this specific case, the defendant was sentenced to:
- 48 months in prison.
- A fine close to $10 million.
- Disqualification from holding public office.
- Denial of benefits such as house arrest.
This implies a tightening of criminal policy towards non-compliance with tax obligations, especially in medium and large companies where the collection and withholding of taxes is constant.
Implications for business owners, accountants, and legal representatives:
With this decision, the Court reinforces a clear message: tax evasion or simple non-compliance with tax obligations, when there is withholding of funds belonging to others, can lead to direct criminal liability, even without any formal request.
What can you do?
At Paez Martin, we support executives, business owners, and accounting teams in preventing criminal risks with a strategic approach. We diagnose critical tax situations, advise on tax audits, and, if necessary, design a technically sound, robust criminal defense that respects fundamental rights.
