In a criminal proceeding for omission of assets, inclusion of non-existent liabilities, or tax fraud or evasion, the Prosecutor's Office can ask a pre-trial (guarantees) control judge for measures over assets: seizure or occupation and suspension of the power of disposal for purposes of forfeiture, or attachment and sequestration to protect compensation for damages. They are not the same as the attachment DIAN orders in coercive collection, and they are requested and lifted through different channels. Ligal handles the defense end to end, with lawyers, accountants and ex-DIAN experience, without promising results.
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Law 906 of 2004 provides for two families of measures over assets. The first seeks to secure forfeiture: article 83 establishes seizure and occupation as material measures and, as a legal measure, suspension of the power of disposal, which apply when there are well-founded grounds to infer that the assets or resources are the direct or indirect product of an intentional crime, that their value is equivalent to that product, that they were used or intended to be used as a means or instrument of an intentional crime, or that they are its material object. Seizure or occupation must go through a legality review hearing before the pre-trial control judge within the following 36 hours (art. 84); suspension of the power of disposal is requested by the prosecutor at the charging hearing or at a preliminary hearing, the judge orders it if the circumstances of article 83 are verified, and it remains until forfeiture is decided or return is ordered (art. 85). Forfeiture applies to assets that come from the crime or serve to commit it, and may reach assets of equivalent value, without prejudice to the rights of victims and good-faith third parties (art. 82). The second family seeks to protect compensation for damages: the pre-trial control judge may order, over the assets of the person charged or accused, at the request of the prosecutor or the victims, the attachment and sequestration that are necessary (art. 92), limited to what is necessary (art. 93) and not disproportionate to the seriousness of the harm and the probable sentence (art. 94). Whether a tax crime fits any of these scenarios, and who acts as the victim, is reviewed case by case; it is not taken for granted.
A DIAN attachment is something else. In coercive collection, the Administration may order, before or simultaneously with the payment order, the preventive attachment and sequestration of the debtor's assets (Tax Statute, art. 837), and the value of the attached assets may not exceed twice the debt plus interest (art. 838). There the Administration itself decides in order to secure payment of a tax; in the criminal proceeding a judge decides, at the request of the Prosecutor's Office or the victims, on the basis of forfeiture or compensation for damages. They can coexist, and each is challenged on its own front: see DIAN attachment and precautionary measure. The tax crimes are omission of assets or inclusion of non-existent liabilities (Criminal Code, art. 434A: from 1,000 SMMLV) and tax fraud or evasion (art. 434B: from 100 and up to less than 2,500 SMMLV), with the amount defined by an official assessment; their paragraphs condition the criminal action on there being no administrative appeals pending and no reasonable interpretation of the law, and provide that payment of taxes, penalties and interest extinguishes the action up to two times. For those pieces see tax evasion 434B and extinction of the criminal action by payment.
Keys to understanding the measures over your assets
Ligal identifies which assets are at risk, takes part in the hearings where the measure is requested, reviewed or lifted, and conducts the criminal and tax defense, without promising results.
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We determine which assets are in your name, which belong to the company or to third parties, which have documented origin and which could be the target of a measure. What can be requested and what can be opposed depends on that.
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A Ligal lawyer takes part in the legality review hearing, in the suspension of the power of disposal hearing and in the attachment and sequestration hearing: demanding that the well-founded grounds, the necessity and the proportionality of the measure be demonstrated.
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Jeysson Pulido reconstructs the figures of the official assessment and of the estate involved to argue that the measure is disproportionate and to calculate the cost of a bond, a payment or an agreement.
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We ask for the return of assets that are not necessary, the reduction or replacement of excessive measures and the release of attachment with a bond when appropriate, and we present good-faith third parties so that they can assert their rights.
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What is said in the criminal proceeding must be consistent with what is argued before DIAN, including coercive collection and payment. We handle both fronts and the defense on the merits through trial, with the same team.
Protecting assets in a criminal proceeding is decided between the criminal reading of the measure and the exact calculation of what is owed. At Ligal the same team handles it, from the first hearing.
Director · Tax lawyer, ex-DIAN
Directs the legal strategy and the representation in tax and criminal proceedings: defines how to oppose the measure, when to ask for lifting and how to coordinate the defense with the DIAN front.
Accountant · Quantification and traceability
Reconstructs the figures of the official assessment and of the estate, demonstrates the origin of the assets and models the cost of each scenario.
Criminal and tax defense
They attend the hearings, prepare the requests and handle the case from start to finish, from the charges to trial.
From the charges onward, the person charged may not dispose of registrable assets for six months without securing compensation or without a ruling on the merits of their innocence, and any transaction without the judge's authorization is void (Law 906, art. 97). And getting rid of one's estate to harm a creditor can be concealment of assets (Criminal Code, art. 253).
The legality review (36 hours, art. 84), the suspension of the power of disposal (art. 85) and the attachment (arts. 92 to 94) are decided at a hearing before the pre-trial control judge. Without technical defense, arguments of necessity and proportionality are lost.
Assets not necessary for the investigation or over which forfeiture does not apply are returned (art. 88), excessive measures are reduced or replaced (art. 93) and release of attachment with a bond is possible (art. 96). They are requested and supported; they are not waited for.
When the Prosecutor's Office requests measures, who owns each asset matters. Mixing the company's accounts, assets and expenses with those of its partners or managers opens the door to measures over assets that did not have to be affected.
With the report, the summons or the charging document in hand, the first thing is to identify the crime, the stage of the proceeding and whether any measure has already been requested; gather the official assessment that defines the amount; and map your own assets, the company's and third parties', with their supporting evidence of origin. Then it is decided whether to oppose the measure, ask for its lifting, offer a bond, pay or combine these. In the meantime, it is advisable not to sell, transfer or encumber assets without advice, because of the criminal risk that may create. Ligal handles the defense end to end. Juan Santiago Rodríguez Prieto, tax lawyer and ex-DIAN, directs the strategy together with the accountant Jeysson Pulido and Ligal's team of lawyers. The team, with lawyers, accountants and direct experience inside DIAN, handles real cases of audits, coercive collection and tax and tax criminal litigation.
Please note: each case depends on the crime, the assets and the stage of the proceeding. Ligal evaluates the situation and defines the strategy without promising results.
Director
Juan Santiago Rodríguez Prieto
Tax lawyer · Ex-DIAN
Each stage of the proceeding changes which measures can be requested and how they can be contested. We evaluate your case within one business day. Use the form or open Diagnosis.
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TodayWe review the report, the summons or the charging document, the official assessment, any rulings on assets if they already exist and the list of your own assets, the company's and third parties'.
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One business dayWe specify which measures can be requested or have already been requested, at which hearing, on what basis and what the routes are to contest or lift them.
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ImmediateWe define whether it is advisable to oppose, ask for lifting, offer a bond, pay or combine these, and we take on the defense end to end.
Frequently asked questions
It can request measures before a pre-trial control judge, who decides whether to order them. For purposes of forfeiture there are seizure and occupation and suspension of the power of disposal, when there are well-founded grounds to infer that the assets are the product, instrument or object of an intentional crime (Law 906 of 2004, arts. 83 and 85); and to protect compensation for damages, attachment and sequestration at the request of the prosecutor or the victims (art. 92), limited to what is necessary and proportionate (arts. 93 and 94). Protecting them means acting at the hearings, proving the origin and ownership of the assets, asking for lifting, reduction or a bond, and not moving assets in a way that could be read as fraud. Ligal handles the defense end to end.
In coercive collection, the Tax Administration may order the preventive attachment and sequestration of the debtor's assets, before or simultaneously with the payment order (Tax Statute art. 837), and the attached assets may not exceed twice the debt plus interest (art. 838). In the criminal proceeding, attachment and sequestration are ordered by a pre-trial control judge at the request of the prosecutor or the victims, to protect compensation for damages (Law 906, art. 92), and the measures for purposes of forfeiture follow a different logic (arts. 82 to 86). They can coexist and are contested through different channels. See DIAN attachment and precautionary measure.
It is a legal measure for purposes of forfeiture (Law 906, art. 83): the owner keeps the asset but cannot dispose of it. The prosecutor may request it at the charging hearing or at a preliminary hearing; the pre-trial control judge orders it if the circumstances of article 83 are verified, and it remains until forfeiture is definitively decided or return is ordered (art. 85). Assets subject to measures for purposes of forfeiture are placed at the disposal of the Special Fund for the Administration of Assets of the Prosecutor's Office and the measures are recorded in the registries within the following three days (art. 86).
Seizure or occupation for purposes of forfeiture may be ordered by the Attorney General or their delegate, or carried out by the judicial police in the cases the code provides, but within the following 36 hours the prosecutor must appear before the pre-trial control judge for the legality review hearing of what was done (Law 906, art. 84). There it is contested whether there were well-founded grounds and whether guarantees were respected. Those 36 hours mean the first response has to be fast.
It depends on the measure. For assets that are seized, occupied or subject to suspended power of disposal, article 88 of Law 906 provides that, before the indictment and within a period that may not exceed six months, assets are returned when they are not necessary for the investigation or are not in a circumstance in which forfeiture applies, and that the pre-trial control judge orders the lifting of the suspension of the power of disposal, at the request of the prosecutor or of anyone with a legitimate interest. For attachment and sequestration, the person charged may ask the judge to examine the necessity of the measures and replace them with less burdensome ones or reduce them if they are excessive (art. 93), invoke disproportion (art. 94) or request release of attachment with a bond (art. 96); the attachment is also lifted upon preclusion or an acquittal. Which route suits your case is defined with the case file in view.
Each asset has its owner and the measure is evaluated on who owns it and why affecting it would be justified. Measures for purposes of forfeiture apply to assets of the criminally responsible person that come from the crime, or are used as a means or instrument, without prejudice to the rights of good-faith third parties (Law 906, art. 82), and forfeiture may reach assets of equivalent value. A good-faith third party may assert their rights, personally or through a lawyer, at a preliminary hearing that may be proposed from the charges until before the oral trial (art. 97). In addition, the Prosecutor's Office may request suspension of legal personality or temporary closure of premises when there are well-founded grounds to infer that they have been devoted in whole or in part to criminal activities (art. 91). The analysis of each company and each asset is done case by case.
With restrictions. The person charged may not dispose of registrable assets during the six months following the charging hearing, unless they first secure compensation for damages or there is a ruling on the merits of their innocence; this prohibition is expressly imposed at the hearing and any transaction without the judge's authorization is void (Law 906, art. 97). The judge may authorize operations necessary to pay damages or belonging to the ordinary course of business (art. 98). Beyond that, selling or transferring assets to put them out of a creditor's reach can constitute the offense of concealment of assets (Criminal Code, art. 253).
“Fraudulent insolvency” is the popular expression for someone who gets rid of their estate in order not to pay, but it is not the name of an offense in the Criminal Code. The conduct is analyzed as concealment of assets (art. 253): whoever absconds with their assets, hides them or commits any other fraud to harm their creditor faces prison of 16 to 54 months and a fine of 13.33 to 300 SMMLV. Legitimate estate planning is that which is done in advance, with a real purpose, at market value and with supporting documents, and not as a reaction to a complaint to frustrate measures or payments. Doing it in fraud can aggravate your situation. See fraudulent insolvency with DIAN debts and asset protection.
Payment is a different and parallel path. The paragraphs of articles 434A and 434B of the Criminal Code provide that the criminal action is extinguished up to two times when the active subject pays the taxes, tax penalties and interest; once those occasions are exhausted or the principle of opportunity has been applied, payment only allows a sentence reduction of up to one half. How each payment affects measures already ordered, and when it is advisable to pay, is evaluated in each case; one should not pay blindly. See extinction of the criminal action by payment to DIAN.
The main ones are omission of assets or inclusion of non-existent liabilities (Criminal Code, art. 434A), for an amount equal to or greater than 1,000 SMMLV defined by an official assessment, and tax fraud or evasion (art. 434B), for an amount equal to or greater than 100 and less than 2,500 SMMLV, also defined by an official assessment. The paragraphs of those articles condition the criminal action on there being no administrative appeals pending or no reasonable interpretation of the applicable law, with complete and true facts and figures, and DIAN requests its start through a special petition of a committee. See tax evasion 434B and DIAN criminal complaint.
Gather and date what you received (summons, order, seizure record or ruling), do not sign or state anything without a lawyer, do not move or hand over assets, and contact your defense the same day. If there was a seizure or occupation, the legality review must take place within 36 hours (Law 906, art. 84); if a hearing is announced, evidence of the origin and ownership of the assets has to be prepared. Ligal evaluates your case within one business day.
Ligal is a firm specialized in tax, customs and tax criminal law. Under the direction of Juan Santiago Rodríguez Prieto, tax lawyer and ex-DIAN, together with Jeysson Pulido, accountant, and Ligal's team of lawyers, we combine the criminal reading of the measures with the exact calculation of what is owed and we handle the defense end to end: the measures hearings, the lifting, the front before DIAN and, if necessary, trial. Our work is backed by 5.0 / 5 on Google with 36 reviews: https://share.google/VVzMvULrOj8Mj52Au. The team handles real cases of audits, coercive collection and tax and tax criminal litigation. No result is guaranteed.
Free. Attach the report, the summons or the charging document, the official assessment and any ruling on your assets. We evaluate the risk and the paths of defense.