DIAN REVENUE RULING
The presumption of an infraction to the foreign exchange regime may be rebutted
DIAN recently issued a revenue ruling where it is states that the presumption of infraction to the foreign exchange regime, set out on Article 6 of Law 383 of 1997, is a presumption of law that can be rebutted
In its Revenue Ruling No. 12323 of May of 2016, DIAN clarifies that in the case of the presumption of infraction of the foreign exchange regime set out on Article 6 of Law 383 of 1997, doctrine has stated that its application does not necessarily implies that a penalty should be imposed. This, considering that such presumption only provides an indication of a possible liability but in any case, it may be rebutted throughout the administrative process.
In addition, for the presumption to apply it is necessary that it is deemed certain. In this vein, it is necessary that through the customs procedure there is certainty that the merchandise was introduced to the national customs territory through an unauthorized place or that it was not declared before the authorities or, in the event that it was declared, the value by which it was declared is lower than its customs value.
Finally, the Authority notes that when the merchandise is confiscated for the aforementioned reasons, for purposes of applying the penalty it is feasible to consider the value set on the invoices, when it is demonstrated that this was the amount subject to channelization.