The Crime of Failing to Remit Withheld or Collected Taxes: Key Points
By Jonathan Guerra Bohórquez, Specialist in Criminal and Criminological Sciences
The concept of "white-collar crime"[1] is relatively recent. It reshaped how criminality is perceived, influencing states' criminal policy. Since then, lawmakers have focused increasing attention on financial, tax, and private-corruption crimes, among others.
Colombia offers one example of this trend: Law 1819 of 2016, which added the crime of "failure to remit withheld or collected taxes"[2] to the Criminal Code. This offense targets the individual who, acting on their own behalf or on behalf of a company, fails to remit sums withheld or self-withheld for withholding tax, VAT, or the national consumption tax.
What's striking is that this offense allows prosecutors to go after the individuals actually responsible behind a company — an innovative approach in a country where companies themselves still have no direct criminal liability.
What can I do if I'm being investigated for this crime?
The law provides alternatives for anyone caught up in a criminal case over this offense. The withholding or self-withholding agent can choose to:
- Pay or offset the amounts owed.
- Enter into a payment agreement, which suspends the criminal case.
- Once payment is complete, use the mechanisms the law provides to seek early termination of the criminal case.
Additionally, under Constitutional Court case law[3], individuals or companies undergoing proceedings such as compositions with creditors, forced administrative liquidation, takeover by the Financial Superintendency, or restructuring agreements — tied to events that occurred before December 29, 2016 — may have the criminal action extinguished under the principle of favorability.
Key aspects of the offense.
In our experience as litigators, we consider it essential to highlight two points that provide important tools for defending someone allegedly caught up in this offense:
- The requirement of actually having received the withheld sums:
The duty to remit only applies if the amounts owed were actually received by the person accused. For example, if VAT was reported but never actually collected, the offense doesn't apply. That's because omission crimes like this one require that the accused actually had the real ability to fulfill the obligation they're accused of failing to meet.[4]
- Liability of the legal representative:
In cases where the legal representative is a mere "figurehead" appointment who doesn't actually exercise management functions, the Supreme Court[5] has held that, while a legal representative can be held liable, that liability depends on direct involvement in the conduct. If actual management of the company rests with someone else — a partner, for instance — the absence of any action by the legal representative can be argued to seek an acquittal.
This offense reflects a significant step forward in prosecuting economic and tax crime, but it also demands careful analysis to ensure the right to a proper defense is exercised.
[1] White Collar Criminality, Edwin Sutherland, 1940. [2] Colombian Criminal Code, article 402. [3] Constitutional Court, Ruling C-137 of 2023. [4] Tax Crimes. Editorial Legis, 2nd Edition, 2023. [5] Supreme Court of Justice, Case No. 38638, April 18, 2012.
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