Abstract

RESTREPO-PINEDA, Carlos Mario. Favorability Principle of the Substantive Rule on Tax Matters. Train Wreck Between the Constitutional Court and the State Council. Cuad. Contab. [online]. 2015, vol.16, n.41, pp.429-456. ISSN 0123-1472.  https://doi.org/10.11144/Javeriana.cc16-41.pfns.

In special tax administrative law, the substantive rule refers to the structural elements of tax: taxpayer, tax collector, taxable event, basis of assessment, and the rate. The favorability principle of the substantive rule on tax matters, regarding period taxes, is understood as the application of substantive rules that reduce or eliminate tax burdens, favoring the taxpayer in the same period the rule became effective. The way paragraph three of article 338 of the Constitution is redacted, when interpreted under the light of paragraph two of article 363 of the Constitution creates confusions or quandaries regarding the application of this principle. The purpose of this article is to clarify the case law line of the Constitutional Court and the State Council as to carry out a comparative analysis of the application of the favorability principle of substantive rule on tax law. The case law line of each one of these two Corporations was built using the methodology proposed by Diego Eduardo López-Medina, which is based on the formulation of a guiding question. In this case, that would be: Does the favorability principle of substantive rule apply on tax matters? With two sides for an answer -yes and no- and to this end we took the period between 1993 to 2014, we tracked the rulings of both corporation and identified the most recent ruling, called Archimedes' ruling. Then, by means of citations in the ruling, we detected other rulings referring to the same topic until we tracked down the founding ruling of the line: between the two extremes -the Archimedes' ruling and the founding ruling- all other rulings were chronologically organized. After that, we observed the result obtained, which may be a coherent or a chaotic line (López-Medina, 2000, pp. 142-147). In the case of the State Council we found 18 rulings and for the case of the Constitutional Court, 15 rulings. This article presents the case law line of the Constitutional Court and the State Council alongside the findings, conclusions, and recommendations on the topic.

Keywords : substantive law; favorability; favorability principle; retrospective application of law; retroactive application of law; acquired rights; vested rights; mere expectations of law.

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