Prepared By Valeria Guevara
The Association of Trusts in exercise of the means of control of nullity of article 137 of the Code of Administrative Procedure and Administrative Disputes – CPACA – requested the partial nullity of Concept 100208192-224 of February 24, 2023 and the total nullity of Concept 100202208-1124 of August 2, 2023 (hereinafter, the “Concepts”), both issued by the Directorate of National Taxes and Customs (DIAN). These concepts established that the transfer of real estate within a commercial trust agreement constituted a transfer and, therefore, was subject to stamp tax.
What did the lawsuit argue?
The Association of Trusts argued that the Concepts were issued with false motivation due to an error of law, which is when a rule is assigned a meaning or scope that does not correspond to it. The above, by virtue of the fact that Article 519 of the Tax Statute does not expressly mention that the contribution of real estate to a mercantile trust generates the stamp tax. In addition, he alleged that the interpretation of the DIAN did not comply with the rules of the Civil Code and the Tax Statute that establish exceptions in the qualification of certain acts as alienations.
Likewise, it argued that the mercantile trust is a mechanism for asset management and not for disposition, therefore, the tax generating event is not configured. Finally, he warned that the DIAN’s interpretation violated (i) the principle of legality, since they reconfigured, the fact generated by the stamp tax and (ii) the principle of taxpaying capacity, since the contribution of real estate to a mercantile trust does not imply an increase in assets for the trustor.
What was the response of the DIAN?
The DIAN, in its answer to the claim, stated that the expression “alienation for any title” should be interpreted in a broad manner, no longer discriminating between operations carried out for valuable consideration or free of charge, in order to avoid abuses and tax evasion. Thus, it argued that the term “alienate” implies to sell or assign and that, although the mercantile trust imposes certain limitations, there is an effective transfer of goods. Furthermore, it held that the stamp tax is constitutionally valid and that the transparency principle of Article 102 of the Tax Statute only applies to income tax.
What was the conclusion of the Council of State?
After analyzing the case, the Fourth Section of the Council of State concluded that the DIAN’s interpretation was erroneous and determined the following:
- It declared the partial nullity of Concept 100208192-224, eliminating the statement that the transfer of property within a mercantile trust constitutes an alienation.
- Declared the total nullity of Concept 100202208-1124, for having been issued with false legal reasoning.
- The magistrates concluded that the mercantile trust does not constitute a real alienation of the assets, since these continue to be linked to the trustor until the agreed conditions are fulfilled. Consequently, the DIAN’s interpretation distorted the figure of the trust and generated an undue tax burden.
For Brick Abogados, this pronouncement has important implications for the trust sector, since it provides legal certainty to trust entities and their clients, avoiding interpretations that discourage the use of commercial trusts. With this decision, the Council of State reinforces the importance of the principle of tax legality and protects taxpayers from tax burdens not expressly established in the law.
Do not hesitate to contact Brick Abogados if you have any concerns or if you would like more information on the topic discussed above.
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This document is for informational purposes only and does not constitute legal advice, nor does it engage the responsibility or professional opinion of Brick Abogados.