Principle of opportunity in tax crimes: not just any deal with the Fiscalía
Learn when it can be raised, how it differs from the plea agreement and from payment, and defend your criminal case and your DIAN case with one team of ex-DIAN attorneys and CPAs.

Ground 1 of Article 324 (as amended by Law 2477 of 2025) is limited to crimes whose maximum prison penalty does not exceed six years, or with a principal fine, provided the identified victim has been comprehensively repaired or a bond is set as a guarantee of reparation. In concurrence of offenses, each conduct must meet the limit on its own. Applied to tax offenses: Article 434B in its base band (36 to 60 months) falls within it; with the one-third (80 months) or one-half (90 months) increase for amount, it exceeds it; Articles 434A and 402 (48 to 108 months) also exceed it. In those cases ground 1 is not the route; other grounds require a separate analysis and none is automatic.

They are three distinct figures. The principle of opportunity is a decision by the Fiscalía not to prosecute (suspend, interrupt or waive) on exhaustive grounds and under judicial control; there is no conviction. The plea agreement (preacuerdo, Arts. 348 to 351 of Law 906) is a negotiation between the Fiscalía and the person charged in which the latter pleads guilty to the charged offense or a related lesser one, in exchange, for example, for removal of an aggravating circumstance or a favorable classification of the offense: there is a conviction with a reduced penalty and therefore a criminal record. Extinction by payment is not a negotiation with the Fiscalía: it is a legal effect of paying taxes, penalties and interest under the paragraphs of Articles 402, 434A and 434B.

Under Article 327 of Law 906, the judge of guarantees must review the legality of the Fiscalía's determination within the following five days. The review is mandatory and automatic and takes place in a special hearing in which the victim and the Ministerio Público may contest the evidence; the judge decides de plano. In addition, neither the principle of opportunity nor plea agreements may compromise the presumption of innocence: they proceed only with a minimum of evidence from which authorship or participation and the elements of the offense can be inferred. That is why the request must be prepared with evidentiary and technical support.

Under Article 323 of Law 906 (as amended by Law 2477 of 2025), the Fiscalía may apply it during the indagación, the investigation or the trial, until before the trial hearing. It is a constitutional power exercised for reasons of criminal policy, subject to the Attorney General's regulations and to review by the judge of guarantees. The beneficiary must comply with the commitments within a maximum of one year, extendable for the same time. Raising it early allows the quantification and the DIAN dispute to be organized, but the right moment depends on the case, and no stage ensures that the Fiscalía will accept it.

Article 86 of the Criminal Code, with the paragraph added by Article 11 of Law 2477 of 2025, provides that when the principle of opportunity is applied (in its forms of suspension, interruption or waiver) the limitation period of the criminal action is suspended for up to three years, counted from the date on which the judge of guarantees declares its application lawful. This effect should be considered when evaluating the route, because it is not equivalent to an immediate end of the criminal risk. The limitation periods of each offense are analyzed case by case.

Paragraph 2 of Articles 434A and 434B of the Criminal Code (Art. 69 of Law 2277 of 2022) extinguishes the criminal action upon payment of taxes, tax penalties and interest up to two occasions, counted jointly across both offenses. If the principle of opportunity was already applied, or the action was already extinguished by payment on two occasions, for either offense, a further payment only allows a penalty reduction of up to one half, and neither extinction nor the principle of opportunity can then be applied. That is why it is important to know which routes have been used before deciding which one to employ.

Not necessarily. The criminal and administrative fronts are separate tracks: the Fiscalía suspending, interrupting or waiving prosecution does not by itself resolve the official assessment or the tax debt, which is disputed and collected through the DIAN procedure. In Article 402 the law expressly says that extinction by payment operates without prejudice to administrative penalties. In Articles 434A and 434B the amount is defined by official assessment, and the criminal action depends, under paragraph 1, on there being no administrative remedies pending or no reasonable interpretation of the law. That is why we coordinate both defenses.

It depends on the offense, the amount, the evidence and the stage. If the maximum penalty exceeds the six-year limit of ground 1, that ground is not the route. If the paragraphs of Articles 402, 434A or 434B apply and the extinction occasions have not been exhausted, payment with strategy may close the criminal front without a conviction. A plea agreement means admitting guilt and accepting a conviction: accepting charges at the formulation of charges carries a reduction of up to one half of the penalty (Art. 351) and, if there was a patrimonial increase, Article 349 requires returning at least 50% and securing the rest; its application to each tax crime is analyzed case by case. No route is the default exit.

There are five main ones. The Fiscalía and the judge of guarantees may not accept the request. Commitments must be met within a maximum of one year (extendable for the same time) and failure to comply has consequences that must be reviewed in the specific case. Reparation or the bond requires defining who the identified victim is and how much; in tax crimes the debate usually centers on payment of taxes, penalties and interest. Using the principle of opportunity or exhausting the extinction occasions limits later options (paragraph 2 of Arts. 434A and 434B). And what is said in the negotiation must be consistent with the dispute before DIAN.