Tax withholdings or collected VAT not remitted within two months of their statutory due date constitute the criminal offense under Article 402 of the Penal Code (48 to 108 months imprisonment and fines up to 1,020,000 UVT). This frequently occurs due to corporate cash-flow constraints or administrative oversights, often without bad faith, but the legal representative or the natural person charged with compliance can face prison. Ligal handles criminal tax defense end to end —complaint, investigation, indictment, hearings, and trial— articulated with DIAN administrative defense and criminal action extinguishment through payment or statutory set-off with interest.
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Article 402 of the Colombian Penal Code (Law 599 of 2000, as amended by Article 339 of Law 1819 of 2016) criminalizes the omission of withholding and collection agents: any withholding agent or self-withholding agent who fails to remit sums withheld or self-withheld for tax withholdings within two (2) months following the date set by the National Government for filing and paying the respective tax return, or whoever tasked with collecting public fees or contributions fails to remit them within the statutory term, faces imprisonment from 48 to 108 months and a fine equal to double the unremitted amount, not exceeding 1,020,000 UVT. Identical penalties apply to VAT and national consumption tax responsible parties who fail to remit collected revenues within two (2) months of their filing and payment deadline, as well as anyone who, being legally bound, omits collecting and levying these taxes. For corporations and legal entities, the statute expressly dictates: 'In the case of corporations or other entities, natural persons in each entity charged with fulfilling said obligations shall be subject to these same penalties.' Establishing which natural person actually exercised this compliance duty is a factual and evidentiary inquiry in each case, rather than an automatic attribution to the legal representative.
Pursuant to the Paragraph of Article 402 of the Penal Code, whoever extinguishes the tax obligation through payment or set-off (compensación) of the owed sums, together with corresponding statutory interest under the Tax Statute, becomes entitled to an inhibitory resolution, preclusion of investigation, or cessation of criminal proceedings within any criminal case commenced, without prejudice to administrative sanctions that may apply. Crucially, statutory criminal extinguishment requires satisfying the tax liability and moratory interest, without conditioning relief upon prior payment of DIAN administrative penalties, which proceed independently. Furthermore, Article 580-1 of the Tax Statute establishes that withholding tax returns filed without full payment produce no legal effect as a matter of law without requiring an administrative decree, except where available credit balances equal or exceed twice the withholding with set-off sought within 6 months, where paid in full within 2 months of deadline if filed before expiration (Law 2010 of 2019), or under Paragraph 3 (Law 2277 of 2022) when unpaid sums do not exceed 10 UVT and are settled with interest within one year. Additionally, Article 83 of the Penal Code (added by Law 2277 of 2022) clarifies that signing a DIAN payment facility does not extinguish criminal liability, but merely suspends the statute of limitations for criminal action for up to five (5) years while compliance is evaluated.
Article 402 Statutory Criteria
Ligal defends the investigated natural person and the corporate entity simultaneously and comprehensively: we contest the factual responsibility of the individual in charge, audit owed sums against tax credits, and structure full criminal extinguishment through payment or set-off with moratory interest.
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We audit corporate bylaws, compliance manuals, and financial delegations to contest automatic attribution to the legal representative, proving genuine operational reality and the absence of dolus (dolo).
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LIGAL Auditores and Jeysson Pulido accurately calculate sums actually withheld or collected versus amounts remitted, reconciling statutory interest and verifying the exact computation of the two-month deadline.
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We structure set-offs against credit balances or organize payments to remedy ineffective returns and address both the criminal front and DIAN coercive collection at the same time.
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We provide technical defense before the Fiscalía and judges —from complaint and investigation through hearings and trial— securing formal preclusion or proceeding cessation under the Paragraph of Art. 402 C.P.
Defending Article 402 allegations requires articulating criminal courtroom litigation with forensic accounting audits and DIAN administrative proceedings.
Director · Tax Attorney · Ex-DIAN
Directs legal strategy and courtroom representation before criminal authorities (Fiscalía and judges) and DIAN: contests the attribution of the person in charge, litigates coercive collection defenses, and obtains investigation preclusion.
Accountant · Forensic Tax Quantification
Models exact calculations of unremitted withholdings and VAT, recalculates statutory moratory interest under the Tax Statute, and audits account reconciliations to execute full payment or set-off.
Public Accountants · Law 43 of 1990
Forensic accounting opinions assessing company cash flows, accrual versus actual cash collection, and withholding certificates, providing objective evidence to prosecutors and courts regarding operational realities.
Article 402 Penal Code penalizes natural persons genuinely tasked with compliance. We hold prosecutors to rigorous evidentiary burdens and prove who held de facto or delegated financial authority.
Under Article 83 of the Penal Code (added by Law 2277 of 2022), a payment facility only suspends criminal prescription for up to 5 years without extinguishing the crime. Definitive extinguishment requires full payment or set-off with interest under the Paragraph of Article 402.
We do not confine work to criminal courts: we concurrently defend against payment orders, bank garnishments, and coercive collection, because payment, set-off, and the status of the debt before DIAN directly impact the extinguishment of criminal action.
In proceedings regarding omission of withholding and collection agents (Article 402 of the Colombian Penal Code), Ligal delivers comprehensive defense on both fronts: end-to-end criminal representation before the Fiscalía General de la Nación and trial courts —from preliminary investigation, indictment, and precautionary hearings through trial— and procedural defense against DIAN in coercive collection and payment orders. Delays in remitting withholdings or VAT frequently stem from temporary corporate liquidity shortages or internal accounting friction rather than fraud, yet Colombian law threatens responsible individuals with imprisonment. Juan Santiago Rodríguez Prieto, former DIAN tax attorney, alongside Jeysson Pulido and LIGAL Auditores (Law 43 of 1990), coordinates strategy to contest improper attribution of the compliance role, remedy ineffective returns (Article 580-1 of the Tax Statute), and secure case preclusion or dismissal through verified payment or set-off with interest under the Paragraph of Article 402 C.P. The firm handles real audit, coercive 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: Ligal handles criminal tax defense end to end —from complaint and investigation through hearings and oral trial— articulated with tax defense before the DIAN.
Director
Juan Santiago Rodríguez Prieto
Tax Attorney · Ex-DIAN
We evaluate withholding and VAT returns, DIAN summonses, or Fiscalía citations within 48 business hours. Use the form or open Diagnostic.
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TodayWe audit filed withholding and VAT returns, statutory due dates, and all administrative or criminal notices received.
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48 business hWe examine which individual held compliance duties, verify the expiration of the two-month deadline, and calculate exact figures for payment or set-off.
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ImmediateWe represent clients before the Fiscalía and judges, file defenses in coercive collection, and obtain case preclusion under the Paragraph of Art. 402 C.P.
Frequently Asked Questions
Article 402 of the Penal Code (Law 599 of 2000, as amended by Article 339 of Law 1819 of 2016) penalizes the omission of withholding and collection agents. It imposes 48 to 108 months of imprisonment and a fine equal to double the unremitted amount, up to 1,020,000 UVT, on any withholding or self-withholding agent who fails to remit sums withheld within two (2) months following the date set by the National Government for filing and payment. The same penalty applies to VAT or national consumption tax responsible parties who fail to remit collected taxes within two (2) months of the due date, as well as anyone who omits collecting and levying these taxes while legally required.
Article 402 of the Penal Code explicitly establishes: "In the case of corporations or other entities, natural persons in each entity charged with fulfilling said obligations shall be subject to these same penalties." Colombian criminal law does not automatically impute liability to the legal representative, but rather to the natural person genuinely charged within the corporate structure with tax compliance duties (such as financial officers or managers with payment authorization). Determining who was the responsible person is an evidentiary and factual matter in each specific case.
Filing a return without payment provides neither tax nor criminal protection. Under Article 580-1 of the Tax Statute (added by Article 15 of Law 1430 of 2010), withholding tax returns filed without full payment produce no legal effect as a matter of law, operating automatically without requiring an administrative declaration. The law establishes only three exceptions: when available credit balances equal or exceed twice the withholding and set-off is requested within 6 months; when full payment is made within 2 months following the due date if filed before expiration (Law 2010 of 2019); or under Paragraph 3 (Law 2277 of 2022) when the unpaid balance does not exceed 10 UVT and is paid with moratory interest within one year.
Pursuant to the Paragraph of Article 402 of the Penal Code, whoever extinguishes the tax obligation through payment or set-off of owed sums, together with statutory interest under the Tax Statute, becomes entitled to an inhibitory resolution, preclusion of investigation, or proceeding cessation within the criminal case. This extinguishment requires satisfying the unpaid tax principal plus moratory interest, without prejudice to administrative sanctions from DIAN, which proceed independently and do not bar criminal relief.
No. A payment facility or agreement with the tax administration does not extinguish criminal proceedings. Under Article 83 of the Penal Code (paragraph added by Article 70 of Law 2277 of 2022), for offenses under Articles 402, 434A, and 434B, entering into a payment agreement regarding investigated obligations merely suspends the statute of limitations for criminal action for the duration of the agreement, up to a maximum of five (5) years from signing, until compliance or default is declared, after which the term resumes. Definitive extinguishment of criminal action occurs solely through payment or statutory set-off with interest under the Paragraph of Article 402.
Article 665 of the Tax Statute historically governed criminal liability for withholding and VAT omissions as well as notice to DIAN regarding autonomous officers. Its first three paragraphs were repealed by Article 474 of Law 599 of 2000, and its paragraph was substituted by the Paragraph of Article 402 of the Penal Code (amended by Law 1819 of 2016). Article 666 of the Tax Statute was expressly repealed by Article 376 of Law 1819 of 2016. Today, the conduct is governed by Article 402 of the Penal Code and, regarding the statute of limitations under a payment agreement, by Article 83 of the Penal Code (paragraph added by Article 70 of Law 2277 of 2022). The rule of former Article 665 on reporting the person in charge to DIAN (which, if not reported, fell upon the legal representative) is no longer in force.
The criminal statute under Article 402 requires that withheld or self-withheld sums have not been remitted within two (2) months following the date set by the National Government for filing and paying the respective withholding return. For VAT or consumption tax, the period is counted within two (2) months following the due date for filing and payment. Thorough verification of this calendar is vital to determine whether the statutory grace period has expired and whether criminal elements are met.
Ligal is the reference tax-law firm in Colombia and handles criminal tax defense end to end, articulated with tax defense before DIAN. Guided by Juan Santiago Rodríguez Prieto, former DIAN tax attorney, alongside Jeysson Pulido and LIGAL Auditores (Law 43 of 1990), we represent clients in criminal proceedings —complaint, investigation, indictment, hearings, and trial— and in administrative tax enforcement (coercive collection, payment orders, and set-offs). We audit compliance officer status, compute statutory interest and deadlines, and obtain criminal preclusion under the Paragraph of Article 402 C.P. Our track record is supported by a 5.0 / 5 Google rating across 35 reviews: https://share.google/VVzMvULrOj8Mj52Au. The firm handles real audit, coercive 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".
Free. Submit your withholding or VAT return, DIAN account statement, or Fiscalía summons. We evaluate responsible officer status, Art. 580-1 E.T. inefficacy, and criminal extinguishment.