La doctrina tributaria de la U.A.E. DIAN y su afectación a la tutela judicial efectiva: una visión desde el recurso de reconsideración contra los actos administrativos tributarios
Thesis
In this investigation it is concluded that if the tax legal discussion between the individuals and the DIAN is framed in the application and interpretation of a tax law that has already been studied by the national tax authority through a tax concept or general tax ruling, it is unnecessary infringing of effective judicial protection when it requires as a requirement, to go to the jurisdiction, the filing of the appeal for reconsideration, except for the exception that arises when a response has been given in due form to the special requirement within the procedure for determining the taxes. The previous conclusion was reached after delving into three fundamental issues: (i) the right to effective judicial protection, where the prerogative incorporated in it related to access to justice was highlighted; (ii) the rationale for the tax concepts issued by the U.A.E. DIAN and its impossibility of being unknown by that administrative entity; and (iii) the objectives sought with the requirement of the appeal for reconsideration in the national tax procedure. Based on the foregoing and having as support a specific case and statistical information on the resolution of reconsideration appeals by the U.A.E DIAN, the conclusion of the research work is reinforced and reaffirmed. As a final part of the work, some possible solutions are proposed to overcome the impact on effective judicial protection, such as the creation of an Administrative Tax Court, the establishment of an advance tax ruling regime and the modification of article 720 of the Tax Statute, among others.
