The DIAN may make payment agreements with its debtors or with third parties acting in the name of these. In order to avail oneself of this benefit it is necessary to meet the requirements specified in article 814 of the ET tax statute. In case of non-compliance the DIAN national tax and customs office may file an order of payment.
Requirements for establishing a payment agreement with the DIAN
In accordance with article 814 of the ET, the debtor or third party acting in their name, wishing to reach a payment agreement with the DIAN must satisfy some of the following conditions:
–Demonstrate an escrow guarantee.
–Offer goods for seizure or capture.
–Offer guarantees, which may be personal, provided the value of the debt does not exceed 3,000 UVT tax value units (equivalent to $89,259,000 for the 2016 fiscal year), whether these be real, in banking or insurance companies, among others. However, in the case that the debtor requests payment agreement of less than one year, this may be granted without collateral, provided he or she reports to the entity, the assets that could be seized and captured.
Additionally, the DIAN may provide payment facilitations with different guarantees, lower interest rates and greater payment time-frames than those previously stated, with the necessary full satisfaction of the following conditions:
–The debtor has signed an agreement for re-structuring of their debt with financial organisations and this debt amounts to less than 50% of their liabilities.
–The payment time-period for outstanding liabilities with the DIAN must be less than the shortest term agreed for payment to any financial institution taking part in the re-structuring agreement.
–There must be a similarity between the collateral provided to the DIAN with those generally established in the agreement.
–The interests resulting from the payment agreement with the DIAN must be settled at the rate agreed in the re-structuring agreement with the financial institutions; it is nevertheless necessary to bear in mind:
•The interest rate to be applied in the payment agreement will be higher than that negotiated with any of the financial institutions.
•The interest rate in the payment agreement must be higher than the IPC consumer price index, certified by the DANE and increased by 50%.
Consequences for not complying with the payment agreement
Non-compliance with the instalments and rates established in the payment agreement as well as non-payment of a tax liability originating before its concession will entail a notification by the DIAN regarding said situation. Depending on the circumstance, this body may leave invalid, through a conceded payment-facilitation resolution, as well as order the activation of the guarantee offered by the beneficiary at the time in which the application for the payment agreement was made. In view of this the debtor or third party may file an appeal for reversal within the 5 days following notification.
Once the resolution is conclusively in place, the beneficiary of the agreement for payment will have a period of 10 days to place the collateral in effect; non-compliance of this deadline will lead to an order for payment against the guarantor, who may in turn be burdened with the seizure and appraisal of his or her assets.