The Tax Penalty for Late Payment and the Taxpayer’s Guarantees (Rights)

Abstract

The purpose of this paper is to analyze the application of the penalty established in Article 110 of the Organic Tax Code (Código Orgánico Tributario, COT), referring to the material tax offense for delay in the payment of the tax debt. The aforementioned legal precept qualifies as delay the payment made by the taxpayer of a tax obligation after the date established by law, without the mediation of an administrative procedure. The delay, understood as a contravention of the law, brings as an unfavorable consequence for the obligated taxpayer the imposition of a fine, which according to the COT operates as a matter of course, since the taxpayer has no opportunity to allege or prove the existence of circumstances beyond they control that made it impossible to comply with the tax obligation. However, given that the National Constitution provides that in all administrative actions due process must be applied, a right of individuals –including taxpayers– which in turn constitutes a guarantee that contains within its attributes, the right to defense, the right to be heard, and the right to the presumption of innocence. According to the analysis it can be concluded that the eventual imposition of the sanction for this concept in the terms established in the COT, would be an administrative act that violates the rights and guarantees established in the Constitution, therefore null and void.

Key words: tax penalty, material offence, administrative procedure.