The crime of omission of the withholding agent: legal perspectives

The crime of omission of the withholding agent, regulated under Article 402 of the Colombian Penal Code, represents a key concept within criminal tax law. This concept penalizes the failure to deposit the amounts withheld or collected as taxes within the deadlines established by law. The conduct constitutes a crime against public administration, as it directly affects state assets and resources intended for public purposes.

The regulation allows the extinction of criminal proceedings if the withholding agent fulfills the tax obligation by fully paying the amounts owed, including interest and penalties, before a court ruling is issued. This provision, as noted by the Supreme Court of Justice, reveals a tension between criminal law and the administrative mechanisms of tax collection, highlighting the instrumentalization of criminal law as a pressure tool rather than its traditional punitive function.

The principle of ultima ratio requires that criminal law be used only when administrative mechanisms are insufficient to ensure compliance with tax obligations. This approach underscores the need to balance the protection of the tax system with proportionality in the application of criminal law, avoiding excesses that may distort its essential purpose.

Hugues Bruges Viloria from Auren Barranquilla, Colombia