1. The following constitute tax infractions:
- a)Omitting to file self-assessment returns. This infraction is configured when the taxpayers (sujetos pasivos) fail to pay, within the legally established deadlines, the corresponding tax quotas, through the omission of the self-assessment returns they are obliged to file.
In this case, the penalty base shall be constituted by the amount determined ex officio.
- b)Filing inaccurate self-assessment returns. This infraction is configured when the taxpayers (sujetos pasivos) fail to pay, within the legally established deadlines, the corresponding tax quotas, through the filing of inaccurate self-assessment returns. For these purposes, inaccuracy shall be understood as:
i. The use of false, incomplete, or inaccurate data, from which a lower tax, a lower balance payable, or a higher balance in favor of the taxpayer or responsible person is derived.
ii. Arithmetic differences contained in the returns filed by the taxpayers (sujetos pasivos). These differences occur when, upon performing any arithmetic operation, an erroneous value results or rates different from those legally established are applied that imply, in either case, lower tax values or higher balances in favor than those that should have corresponded.
iii. In the case of the withholding at source return, the omission of some or all of the withholdings that should have been made, or those made and not declared, or those declared for a value lower than what corresponds.
The penalty base shall be the difference between the amount determined in the ex officio determination and the amount self-assessed in the taxpayer's (sujeto pasivo) return.
- c)Requesting the offset or refund of taxes that are not due. This infraction is configured when the taxpayer (sujeto pasivo) has requested the offset or refund of taxes on non-existent sums or for amounts higher than those that correspond.
The penalty base shall be constituted by the difference between the requested amount and the due amount.
- d)Unduly obtaining refunds derived from the regulations of each tax. This infraction is configured when the taxpayer (sujeto pasivo) has unduly obtained the refund of taxes on non-existent sums or for amounts higher than those that correspond.
In this case, the penalty base shall be the amount unduly refunded.
2. Classification of tax infractions. Each tax infraction, established in this article, shall be classified unitarily, in accordance with the provisions of subsection 3) of this same article. The applicable fine shall be applied to the total penalty base that corresponds in each case.
Without prejudice to the foregoing, when the ex officio determination performed results in non-penalizable amounts, the proportion corresponding to the non-penalizable amounts must be excluded from the penalty base, so that such amounts are not affected by the penalty intended to be imposed. For these purposes, the penalty base shall be the result of multiplying the amount to be paid by the coefficient, which shall be established by multiplying by one hundred the result of a fraction in which the following appear:
- a)In the numerator, the sum of the result of multiplying the penalizable increases by the tax rate provided in sub-subsection c) of this subsection, plus the penalizable increases made directly to the tax quota or to the amount to be paid.
- b)In the denominator, the sum of the result of multiplying all increases, whether penalizable or not, by the tax rate provided in sub-subsection c) of this subsection, plus the penalizable increases made directly to the tax quota or to the amount to be paid.
- c)For the purposes of the provisions in sub-subsections a) and b) above, if the penalizable increases occur in the portion of the base taxed at a proportional tax rate, that rate shall be the one applied. When the increases occur in the portion of the base taxed by a scale of rates or tariffs, the average rate resulting from the application of that scale shall be applied.
The coefficient shall be expressed rounded to two decimal places and, in its calculation, the determined amounts that reduce the base, the quota, or the amount to be paid shall not be taken into account.
3. Applicable penalties. The material infractions described in sub-subsections a), b), c), and d) of subsection 1 of this article shall be penalized with a monetary fine of fifty percent (50%) on the penalty base that corresponds.
For all the aforementioned infractions that could be classified as serious or very serious, as described below, and provided that the penalty base is equal to or less than the equivalent of five hundred base salaries (salarios base), the penalties established for each case shall be applied:
- a)Those infractions committed through the concealment of data from the Tax Administration (Administración Tributaria) shall be classified as serious, provided that the amount of the debt resulting from the concealment exceeds ten percent (10%) of the penalty base.
Concealment of data shall be deemed to exist when:
i. Returns are not filed.
ii. Returns are filed that include non-existent facts or transactions or with false amounts, or in which transactions, income, rents, products, goods, or any other data that affects the determination of the tax debt are totally or partially omitted.
In those cases where the infraction is classified as serious, a penalty of one hundred percent (100%) on the total penalty base that corresponds shall be imposed.
- b)Those infractions in which fraudulent means have been used shall be classified as very serious, understood as such:
i. Substantial anomalies in the accounting and in the books or records established by tax regulations. Considered substantial anomalies are: absolute non-compliance with the obligation to keep accounting or the books or records established by tax regulations; keeping different sets of accounts that, referring to the same activity and economic period, do not allow the true situation of the company to be known; keeping the accounting books or the books or records established by tax regulations incorrectly, through the falsification of entries, records, or amounts, or recording in incorrect accounts in such a way that their tax classification is altered. The application of this last circumstance shall require that the incidence of keeping the books or records incorrectly represents a percentage greater than fifty percent (50%) of the penalty base.
ii. The use of false or falsified invoices, supporting documents, or other documents, provided that the incidence of the false or falsified documents or supports represents a percentage greater than ten percent (10%) of the penalty base.
iii. The use of intermediary persons or entities when the offending subject, with the purpose of concealing their identity, has caused the ownership of goods or rights, the obtaining of income or capital gains, or the carrying out of transactions with tax significance from which the tax obligation derives, whose non-compliance constitutes the infraction being penalized, to appear in the name of a third party, with or without their consent.
When the infraction is classified as very serious, a penalty of one hundred fifty percent (150%) on the total penalty base that corresponds shall be imposed.
4. To establish the amounts equivalent to the five hundred base salaries (salarios base) referred to in this article, it must be understood that:
- a)The omitted amount shall not include interest, nor automatic surcharges, nor fines or surcharges of a punitive nature.
- b)To determine the mentioned amount when dealing with taxes whose period is annual, the quota corresponding to that period shall be considered, and for taxes whose periods are less than twelve months, the amounts omitted during the twelve months comprising the income tax period of the audited subject shall be considered.
For other taxes, the amount shall be understood to refer to each of the concepts for which a taxable event is susceptible to determination.
(Thus reformed by Article 1 of Law No. 9069 of September 10, 2012, "Ley de Fortalecimiento de la Gestión Tributaria")