Naturaleza jurídica del recargo del 20% sobre determinaciones tributarias desde el punto de vista de la facultad determinadora y sancionadora.

Abstract

Tax Administrations’ purposes are correlated with the powers that tax regulations have granted to them. Those faculties are: the power to regulate the tax law; to determinate a tax obligation; to resolve claims; to impose penalties; to collect taxes; and, a control power that is established on many normative precepts of our legal system. It should be noted that each tax power manifests itself as autonomous since, in each of them, the legislator has made clear a procedure to follow with provisions and legal effects that are its own At a glance, it can be seen how the surcharge of 20% is considered a substantial element within a determination act and, as part of the exercise of the determining power. However, there are judicial and doctrinal pronouncements which allow to consider that surcharge as part of the sanctioning power and, therefore, its imposition is related to the procedure and legal effects of that power. The statute of limitations of the actions aimed at imposing penalties for contraventions and regulatory faults is 3 years from the commission of the offense; but, this rule is not clear for knowing when this period of time is interrupted; Therefore, if it is ensured that surcharge is part of the sanctioning power, as I conclude; this period would not be affected by the initiation of a determination through an order of tax verification, but only from the moment the Administration issues the respective act. Thus, a limit to the determining tax power is established