Apart from having obligations before the State and the Tax Administration, the taxpayer also has rights that are applicable in different aspects from the payment of taxes, exemptions, collections, adjustments, or SAT requirements.
Tax experts explain the rights that exist in Guatemalan legislation in this area, and provide some examples of how or when to apply them.
The Tax Code establishes the right of defense, which allows the taxpayer to carry out a due process of defense once morest adjustments for taxes, fines and interests, to be notified appropriately, as well as to have access to information, and to be able to make petitions or challenge, state the auditors: Walfred Corado, Tax and Business coach and director of Taxes and Transfer Pricing at the firm Expertos Tributarios, SA; Juan Carlos Paredes, managing partner of the firm Paredes, Saravia y Asociados, SC (Parsa); and Mario Coyoy coordinator of the Tax Commission of the Guatemalan Institute of Public Accountants and Auditors (IGCPA) and partner of the Deloitte firm.
In 2016, the Taxpayer’s Bill of Rights was introduced into the Guatemalan Tax Code, since with decree 37-2016, article 21 “A” was incorporated establishing the rights, Corado states.
The article in question contains:
- Guarantee confidentiality of taxpayer data (fiscal secrecy).
- Challenge tax resolutions.
- Due process, hearing and defense, as well as presenting allegations and evidence.
- Be informed and assisted by the SAT of your rights in compliance with your tax obligations, as well as obtain copies of files, reports or administrative tax actions and also be informed at the beginning of the inspection actions regarding their nature and scope, as well as their rights and obligations under the law.
- Any information request made by the SAT to taxpayers for audit purposes must be made through an information request and any extensions to this must be related to the same process.
- Make inquiries and obtain answers and make requests in accordance with procedures for the application of taxes.
- Do not provide information already presented for your registration, registration or tax update.
- Refund of excess payments.
- Tax prescription to determine obligations, impose penalties and demand payment of taxes owed.
- Know the status of administrative actions.
- SAT personnel who process a tax file or action must identify themselves.
The taxpayer has the obligation to pay their taxes and do so within the deadlines set by the law and provisions, says Paredes, but he states that he also has rights and mentions some examples of what application they may have or what they may include.
Access to information includes, among others, access to files to verify your situation on tax issues.
You have the right to petition the President of the Republic to have fines exonerated in any state in which the file is found in the SAT. Or, you may resort to the prescription of taxes and penalties in the cases that arise, for this it must be determined that the provisions of the Tax Code are complied with.
There are others related to what is established in various taxes, such as the right to request a refund of excess payments or improper payments, which may be in various taxes, including value added tax (VAT), income tax (ISR), income tax. solidarity (ISO) and others in force. In addition, to the refund of tax credit in companies that by their nature carry out export sales and entities exempt from the State.
Also, to destroy perishable inventories in accordance with the VAT-ISR Law for purposes that are deductible and to report deductible expenses as established in article 21, 22 and 23 of the law that establishes the ISR.
Right to apply exemptions and exemptions from VAT, ISR and ISO, and others, as well as current tax benefits.
Some cases
- The taxpayer must be clear that he is not obliged to comply with orders that are not based on law and issued in accordance with it, warns Paredes.
- Additionally, you must analyze what the call, summons, or adjustment that the SAT is making refers to.
- Agrees with Coyoy, regarding not admitting any required tax payment if due process and the right to defense are not exhausted.
- When determining that an omission is confirmed, you must immediately resolve your situation. However, in some cases the SAT requests to rectify statements, but it should not be admitted or made until you are clear regarding what it is regarding and review the terms of the 4-year prescription for taxes and 5 years for sanctions, explains Paredes.
- In the case of business closure, you must resort to proper tax defense to avoid admitting illegalities.
- And, when it comes to adjustments for taxes and fines, you must ensure that the notification is made as established by law, meet the hearing deadlines, presentation of evidence and carry out the defense as established by law, he recommends.
Corado, citing various sources, explains that in the tax administration-taxpayer relationship, the values and principles that the Political Constitution of the Republic recognizes must be incorporated.
This establishes two fundamental pillars of Guatemalan tax law such as legality and capacity to pay, and other principles of mandatory observance, such as tax justice and equity, prohibition of double or multiple taxation, non-confiscatoriality, he said, citing Gaceta 21. , which refers to the ruling of August 1991 for file 34-91.
The expert mentions that the Magna Carta also contains fundamental rights in taxation such as tax equality, legal security and certainty, petition, defense and due process (with hearing), freedom of action, and access to administrative or judicial actions, in addition , effective judicial protection and private property.
What to do and your legal appointments
Coyoy and Corado provide legal citations, depending on the situation faced by the taxpayer, derived from the payment or non-payment of taxes, and the measures that the SAT is carrying out.
The coordinator of the IGCPA Fiscal Commission mentions articles 28 and 41 of the Constitution.
The first establishes the right to petition, directing it individually or collectively to the authority, which is obliged to process and resolve them in accordance with the law. It adds that in administrative matters, the period to resolve the requests and notify the resolutions may not exceed 30 days, while, in fiscal matters, it adds, that “to challenge administrative resolutions in files that originate in objections or adjustments for any tax , the taxpayer will not be required to pay prior tax or any guarantee.”
Article 41 is mentioned, regarding the protection of property rights, which prohibits the confiscation of property and the imposition of confiscatory fines, and that the latter may in no case exceed the value of the omitted tax.
Corado, separately, refers to the legislation that can be addressed in the processes that the SAT carries out in inspections or other actions:
- The Tax Code establishes in articles 21 “A” and 126 that every taxpayer in the administrative field can act alone or exercise their right through an authorized third party (which may be, for example, a tax advisor).
- You can exercise the rights recognized by the Constitution and the Tax Code, through different means and when appropriate, such as appeals for revocation before the Tax Administration, for protection when there are violations of your rights or a request to restore them, and when ordinary means are exhausted. corresponding “principle of definitiveness”.
- Article 160 of the Tax Code establishes a procedural remedy such as amendment or nullity. For example, amendment is appropriate when there are defects or omissions in the administrative procedure and nullity when there are substantial defects, for example, among other cases when there is an error in the determination of the tax obligation and imposition of sanctions by the Tax Administration, and there is The deadline to file the amendment or annulment is three days following the violation is known.
- However, the taxpayer is obliged to attend to SAT summons, according to numeral 3 of article 21 “B” and numeral 6 of 112 of the Tax Code. If you do not comply, the penalty is a fine of Q1 thousand each time you are summoned and do not attend, according to article 94 of that code, adds Corado.
- The expert mentions, citing resolutions of the CC to files 183 and 235 of 2019, that, if the SAT requires information for the purposes of inspection, determination of adjustments and imposition of sanctions (collection of taxes and fines), it must request it or notify it by through a request for information that must be notified personally as established in articles 129 and 130 of the Code and not electronically.
- In case of tax collections or penalties, articles 145 “A”, 146, 150, 154, 161, 171 and 172 of the Tax Code must be taken into account.
Sources: Auditors: Walfred Corado, Tax and Business coach and director of Taxes and Transfer Pricing at the firm Expertos Tributarios, SA; Auditor Juan Carlos Paredes, managing partner of the firm Paredes, Saravia y Asociados, SC (Parsa); and Mario Coyoy is coordinator of the Tax Commission of the Guatemalan Institute of Public Accountants and Auditors (IGCPA) and partner of the firm Deloitte.
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