Without prejudice to the special figures and treatments expressly established in the Colombian regulatory framework, it can be broadly stated that all goods entering Colombian territory from abroad must be nationalized, for which the declarant must have the supporting documents applicable in each case and pay the corresponding customs duties (Tariff and VAT).

Article 177 of Decree 1165 of 2019, a rule that summarizes the customs legislation in force in Colombia, provides regarding the supporting documents that:: the declarant is obliged to obtain them prior to the presentation and acceptance of the declaration, and to keep them for a period of five (5) years.

Note how the rule in question establishes that the original of the supporting documents must be obtained before filing the import declaration, which raises the concern regarding the feasibility of obtaining these documents later, particularly in the case of supporting documents that allow access to tax benefits.

I. Supporting documents for VAT exclusions on imports of goods

In order to approach the proposed analysis from a theoretical-practical perspective, we will take as a reference numeral 7 of article 424 of the Tax Statute, rule that establishes the VAT exclusion in the importation of goods to Colombia, conditioned to the obtaining of the corresponding environmental certification.  

Paragraph 7 of article 424 of the ET establishes: that national or imported equipment and elements destined to the construction, installation, assembly and operation of control and monitoring systems, necessary for the compliance with the environmental dispositions, regulations and standards in force, will be excluded from VAT, for which such condition must be accredited before the Ministry of Environment and Sustainable Development.

From the reading of the mentioned norm, it is possible to conclude that if the declarant does not have the environmental certification at the time of nationalization, the VAT exclusion is not applicable.

Now, in the scenario where the certification is obtained after the nationalization, the Council of State has referred to the issue, among others, in Judgment 18080 of August 28, 2013, stating that the refund of the tax is applicable.   

Covered by the precedent of the highest Administrative Contentious Body, the Directorate of National Taxes and Customs - DIAN has also pronounced on several occasions through its Doctrine, particularly in Concept 563 of October 20, 2020, stating:

"From the transcribed rules it is deduced that the certification that supports the origin of the VAT exclusion referred to in numeral 7 of article 424 of the Tax Statute, must be obtained prior to the filing of the import declaration so that the exclusion of the tax can be applied at the time of liquidating the customs duties.

The above without prejudice to access the benefit of the exclusion when the certification has been requested prior to the presentation and acceptance of the import declaration and the same is accredited after obtaining the release of such declaration, in which case the corresponding refund procedure may be carried out".

As a corollary, it is possible to point out that the environmental certification (Supporting Document) referred to in the article under analysis, being an element of evidentiary nature, is not limited exclusively to the moment in which the generating event of the import occurs, so that its accreditation is feasible later, and consequently it is appropriate to refund the tax paid at the time of the presentation and acceptance of the import declaration.

II. Supporting documents for tariff preferences on imports of goods.

Regarding the proof of origin in imports of goods, Article 308 and following of Decree 1165 of 2019, provide:

• The terms used in matters of origin of goods, shall adhere to the definitions established in the texts of the Trade Agreements in force in Colombia.
• Goods imported under a Trade Agreement in force signed by Colombia shall benefit from the tariff preferences with the compliance of the origin requirements established. For this purpose, the proof of origin or means of proof that accredits the originating condition of the goods according to the provisions of the Agreement shall be submitted.

Thus, it is observed how the Colombian customs regulations regarding the aspects related to the origin of imported goods expressly refer to the provisions of each Trade Agreement, thus achieving an adequate harmonization of the local regulations with the supranational ones, and in case of discrepancy, it grants prevalence to the latter.

Now, regarding the subject of analysis of this article, that is, the legal opportunity for the accreditation of the respective proof of origin (Supporting Document), as in point I) above, the support must be available at the time of filing and accepting the respective import declaration.

However, in cases where the proof of origin is presented after the release of the goods, article 314 of Decree 1165, provides:

"When a Trade Agreement in force for Colombia has provided for the possibility of requesting preferential tariff treatment subsequent to the release, the importer shall follow the procedure established in the respective Trade Agreement. The request for refund of the customs duties paid shall be made in accordance with the provisions of this decree".

The clarity derived from the transcribed normative paragraph allows concluding that if the respective Trade Agreement establishes the possibility of presenting the proof of origin after the release, the application for the refund of the customs duties paid before the Tax and Customs Authority shall proceed.

III. Conclusions

Based on the foregoing, it is clear that the supporting documents for the importation of goods into Colombian territory must be accredited at the time of carrying out the nationalization process.

However, although each situation requires its own and individualized analysis, it is possible to point out that in the cases mentioned in this article, applying the constitutional principle of the prevalence of the substantial over the formal, it is feasible to prove the supporting documents after the presentation and acceptance of the import declaration, and consequently request the refund of the customs duties paid.   

Best regards.

Erwin