The introduction of figures specific to private law, such as simulation, and clauses or anti-abuse regulations in tax legal systems at a global level, has been a dissuasive mechanism to prevent taxpayers from avoiding their tax responsibilities. Implementations that, in the Colombian case, function as a guideline for how this power should be exercised to avoid any violation of the taxpayer’s rights, especially the right to due process and the principles of legal certainty and legality.
In this sense, the Council of State, in a judgment of February 23, 2023, taking into account what was already decided in pronouncements of February 19, 2020 and November 10, 2022, analyzed a case in which the non-existence of of purchase operations carried out from a fictitious supplier, in which the taxpayer alleged that, in order to question these operations, the Dian had to follow the special procedure established in article 869 of the Tax Statute, typical of the figure of abuse in tax matters, in so much so that the Administration pointed out that the simulation of commercial operations was not a case of abuse in tax matters, because the debate focused on the reality of the economic facts declared and, therefore, their questioning was appropriate following the general examination procedure.
