Evasion becomes a crime when there is intent to defraud and an understated tax or inflated refund of 100 SMMLV or more, set by official assessment. Prison of 36 to 60 months, with increases by amount.
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Article 434B of the Penal Code (Law 599 of 2000, amended by Law 2277 of 2022) defines tax fraud or evasion. Provided the conduct does not constitute another offense carrying a higher penalty, the offense is committed by anyone who, being obliged to file a return, does not file, or who in a tax return omits income, includes non-existent costs or expenses, or claims improper tax credits, withholdings or advance payments, with the purpose of fraud or evasion, resulting in a lower tax payable or a higher balance in favor of 100 monthly legal minimum wages (SMMLV) or more but under 2,500 SMMLV, defined in every case by official assessment of the tax authority. The penalty is prison of 36 to 60 months. If the amount is between 2,500 and 5,000 SMMLV, the penalties are increased by one third; above 5,000 SMMLV, by one half. The offense therefore has four elements that the defense examines one by one: one of the described conducts (not filing, or omitting, including or claiming in the return), the purpose of fraud or evasion, a minimum amount of 100 SMMLV, and that the amount be defined by official assessment.
It should be told apart from nearby figures. Article 434A punishes omitting assets or declaring non-existent liabilities with the purpose of fraud or evasion from 1,000 SMMLV, with prison of 48 to 108 months; 434B concerns income, costs, expenses and tax credits or balances and starts at a threshold ten times lower, and for unjustified differences in net worth there is, on the administrative side, the income determined by net worth comparison. As to administrative inaccuracy (arts. 647 and 648 of the Tax Code), the difference is one of kind: inaccuracy is a penalty of 100% of the difference (160% or 200% in the aggravated cases) imposed without having to prove any purpose, and there is no inaccuracy when the lower amount stems from a reasonable interpretation of the applicable law with complete and true facts and figures. Not every inaccuracy is a crime: the offense requires the purpose of fraud or evasion, an amount of at least 100 SMMLV defined by official assessment, and that no administrative appeals be pending. In addition, paragraph 2 provides that the criminal action is extinguished up to two times when taxes, tax penalties and interest are paid; if the principle of opportunity was already applied or the action was already extinguished twice by payment (under 434A or 434B), payment only reduces the sentence by up to one half. If you have already received a summons or complaint, see what to do now on our page about DIAN criminal complaints; here we deal with the offense itself.
The essentials of Article 434B
Because the amount is set by the official assessment, the dispute with DIAN and the criminal defense are connected. Ligal handles both with the same team and, when needed, the criminal tax defense end to end.
01
We answer the special requirement and, if there is an official assessment, file the reconsideration appeal, because the amount fixed by the assessment is what is compared to the 100 SMMLV threshold, and while appeals are pending the criminal action does not proceed.
02
Jeysson Pulido and LIGAL Auditores rebuild the books and supporting records of the questioned income, costs and expenses, to support the facts and, where the records allow, reduce the base on which the amount is calculated.
03
We analyze whether the lower amount stems from a reasonable interpretation of the applicable law with complete and true facts and figures, and whether the purpose of fraud or evasion that the offense requires exists; it is not presumed merely because there is a difference.
04
We quantify taxes, penalties and interest and assess with you whether paying to extinguish the criminal action is advisable, bearing in mind that this route operates only up to two times and its effect on the administrative dispute.
A tax evasion case is decided on the numbers and the procedure. That is why lawyers and accountants work on the same file.
Director · Tax Attorney · Ex-DIAN
Leads the legal strategy: the dispute over the official assessment, the analysis of the elements of the offense and, if the case requires it, representation in the criminal proceeding.
Accountant · Tax Quantification
Calculates precisely the difference that sets the amount, the interest and the penalties, and models the scenario of a possible payment to extinguish the criminal action.
Public Accountants · Law 43 of 1990
Review the books and supporting records of income, costs and expenses, and prepare the accounting evidence that supports the dispute over the amount.
The offense requires the purpose of fraud or evasion and an amount of at least 100 SMMLV defined by official assessment. We carefully separate the administrative dispute from the criminal one.
The special requirement and the official assessment have terms to answer and appeal. Meeting them on time is part of the defense, because the amount depends on them.
Each case depends on its facts, its figures and its stage. We assess the options frankly, including payment, and explain them before you decide.
In a possible Article 434B case, the first step is to understand where the amount comes from: the official assessment defines whether the 100 SMMLV threshold is reached and in which penalty bracket it would fall. That is why the defense begins with the answer to the special requirement and the reconsideration appeal, with accounting evidence of income, costs and expenses, and with the analysis of whether a reasonable interpretation of the applicable law exists or the purpose of fraud is missing. Juan Santiago Rodríguez Prieto, a tax attorney and former DIAN official, leads the strategy together with accountant Jeysson Pulido and LIGAL Auditores (public accountants, Law 43 of 1990). Ligal takes on criminal tax defense end to end, and the same team handles the dispute before DIAN and, if it comes to that, the criminal proceeding. The firm works on real audit, collection and tax litigation cases: in a verified Google review, client Julian Rodriguez shares that, thanks to representation before DIAN, "we achieved the closure of a tax lawsuit pending against my company".
Please note: each case depends on its facts and stage. Ligal assesses the situation and defines the strategy without promising results.
Director
Juan Santiago Rodríguez Prieto
Tax Attorney · Ex-DIAN
We review the figure, the stage of the dispute and the options, including payment, within 48 business hours. Use the form or open Diagnosis.
01
TodayWe gather the returns, the special requirement or official assessment, and the accounting records behind what is questioned.
02
48 business hWe calculate the amount against the 100 SMMLV threshold, check whether appeals are pending and review the reasonable interpretation and the purpose of fraud.
03
ImmediateWe define the defense on the amount at the administrative stage, assess payment to extinguish the criminal action and, if the case requires it, take on the criminal defense.
Frequently asked questions
Article 434B (amended by Law 2277 of 2022) punishes, provided the conduct does not constitute another offense with a higher penalty, anyone who, being obliged to file, does not file, or who in a tax return omits income, includes non-existent costs or expenses, or claims improper tax credits, withholdings or advance payments, with the purpose of fraud or evasion, resulting in a lower tax payable or a higher balance in favor of 100 SMMLV or more and under 2,500 SMMLV, defined in every case by official assessment. The penalty is prison of 36 to 60 months.
The threshold is 100 SMMLV, defined by official assessment of the tax authority. Below that value, the dispute is administrative. Between 100 and 2,500 SMMLV the penalty is 36 to 60 months in prison; between 2,500 and 5,000 SMMLV the penalties are increased by one third; and above 5,000 SMMLV by one half.
434A punishes omitting assets or declaring a lower value of assets or non-existent liabilities, with the purpose of fraud or evasion, when the amount is 1,000 SMMLV or more defined by official assessment, with prison of 48 to 108 months (increased by one third above 2,500 SMMLV and by one half above 5,000 SMMLV). 434B concerns omitted income, non-existent costs or expenses, improper credits, withholdings or advances, or failure to file, and its threshold is 100 SMMLV, with prison of 36 to 60 months.
No. Inaccuracy (arts. 647 and 648 of the Tax Code) is an administrative infraction: the penalty is 100% of the difference, 160% in abuse or fictitious suppliers and 200% in omitted assets or non-existent liabilities. There is no inaccuracy when the lower amount stems from a reasonable interpretation of the applicable law with complete and true facts and figures. For a crime, you also need the purpose of fraud or evasion, an amount of at least 100 SMMLV defined by official assessment, and no administrative appeals pending.
Under paragraph 1, the criminal action proceeds provided no administrative appeals are pending, or when no reasonable interpretation of the applicable law exists, provided the declared facts and figures are complete and true. DIAN may request the start of the criminal action through a special petition from a committee headed by the Director General or their delegate.
It can. Paragraph 2 provides that the criminal action is extinguished up to two times when taxes, tax penalties and interest are paid. If the principle of opportunity was already applied or the action was already extinguished twice by payment (under 434A or 434B), payment only reduces the sentence by up to one half, with no extinction or principle of opportunity. Whether paying is advisable is assessed case by case, with the figures in hand.
Because the amount is set by the official assessment, the defense starts at the administrative stage: answer to the special requirement and reconsideration appeal, with accounting evidence of income, costs and expenses. In parallel, we analyze the reasonable interpretation of the applicable law, the absence of fraudulent purpose and the possibility of paying to extinguish the action. If you have already received a summons or complaint, see what to do now on the page about DIAN criminal complaints.
Ligal is the reference tax-law firm in Colombia and handles the defense end to end: the same team deals with the dispute before DIAN and, if it comes to that, the criminal proceeding. Under the direction of Juan Santiago Rodríguez Prieto, a tax attorney and former DIAN official, together with Jeysson Pulido and LIGAL Auditores (public accountants, Law 43 of 1990), we review your case, quantify the figures and define the strategy without promising results. Our work is backed by 5.0 / 5 on Google with 35 reviews: https://share.google/VVzMvULrOj8Mj52Au. In a verified Google review, client Julian Rodriguez shares that, thanks to representation before DIAN, "we achieved the closure of a tax lawsuit pending against my company".
Free. Attach your return, the special requirement or the official assessment. We assess the amount against the threshold, the stage of the dispute and your options.