This English translation is provided for general information and has not been legally verified. Consult the Spanish text and the official sources for legal interpretation. The editorial update date is shown below.
Failure to remit withheld taxes: liability and case assessment
Article 402 of Colombia’s Criminal Code requires an assessment of the obligation, tax periods and responsible individual. We explain what to examine when collected taxes have not been remitted.
A withholding or collecting agent’s failure to remit taxes, addressed by Article 402 of Colombia’s Criminal Code, may have consequences beyond tax collection proceedings. Assessing a case requires reconstructing the obligation, the relevant periods and the roles of the people involved; an outstanding balance cannot replace that assessment.
Conduct and deadlines
Article 402 covers failure to remit withheld or self-withheld amounts and certain taxes collected, together with other expressly defined conduct. For withholding taxes, VAT and national consumption tax, it sets a two-month period linked to the relevant statutory deadline. For public fees or contributions, the applicable legal deadline must be examined.
The assessment must establish the obligation, the person required to fulfil it and what happened during each period. In Ruling 20039 of 2025, the DIAN explained that a criminal complaint does not require prior administrative enforcement proceedings. Filing a return and remitting the funds are separate acts.
Who may be liable within a company?
A company’s tax debt does not automatically make the legal entity the perpetrator of the offence. Article 402 refers to the individuals responsible for fulfilling those obligations within the entity. Identifying the responsible person requires examining duties, the period in office and the circumstances, without inferring guilt from a job title alone.
The provision sets imprisonment of 48 to 108 months and a fine within the statutory limits. These ranges do not predict the outcome of an individual case. DIAN Ruling 3357 of 2024 explains the distinction between the company’s obligations and the liability of the individuals responsible.
Payment and other steps
The proviso to Article 402 addresses the criminal-law effects of extinguishing the obligation through payment or an offset, including the corresponding interest. Recognition of those effects requires establishing that the conditions are met and obtaining the appropriate procedural decision; announcing an intention to pay is insufficient.
A payment agreement, partial payment and full settlement should not be treated as equivalent. Nor should the limitation period be calculated using a fixed number of years without examining the applicable rules, dates and procedural events. Constitutional Court Judgment C-290 of 2019 examines the role of interest in the statutory mechanism.
Documents for an initial assessment
We recommend organising the following by tax and period:
- Returns, amendments, deadlines and evidence of payments or offsets.
- Accounting records allowing a comparison of amounts withheld or collected.
- Documents establishing duties and responsibilities during the period under investigation.
- DIAN notices and correspondence from prosecutors or courts.
Reviewing these records together helps identify inconsistencies, evidential issues and options requiring further assessment. No single document supports a promise that an investigation will be closed or that liability can be ruled out.
Sources
- Criminal Code, Article 402 — Public Service Department.
- DIAN Ruling 20039 of 2025.
- DIAN Ruling 3357 of 2024.
- Constitutional Court Judgment C-290 of 2019 — DIAN compilation.
Editorial update as at 7 October 2026. The outcome of a matter depends on its facts, evidence and applicable rules.