Some may remember that on some occasion Dr. Leon Dario Montoya, raised in a column of opinion, that the contracts that were already running could not be applied the rate of exploitation rights with the amendment of Article 14 of the Law 1393 of 2010, but very much in spite of everything that we discussed and argued, it was applied to all by the contracts, even though COLJUEGOS, at that time headed by CRISTINA ARANGO, resorted to a series of legal and even ingenious resources, including He called the contract holders to sign an additional clause committing the operator to take advantage of the new regulation of MET's Online Interconnection System, which included the new form of settlement based on a percentage of revenues.

Well now the discussion returns and plays, only the other way around, now the entity hopefully does not intend to contradict its interpretation at that time, arguing that the current contracts must continue with the same method or formula for the liquidation of exploitation rights until its termination. and that the new tariff, which turns out to be more favorable for the concessionaires, only applies to contracts signed after the entry into force of the new rule that brings Article 59 of Law 1955 of 2019 or National Development Plan 2018- 2022

Here I try to explain some reasons why I do not think it is presentable or reasonable that eventually COLJUEGOS refuses to give immediate application to the new liquidation formula of Exploitation Rights (gross income summed from all MET entries of a contract minus the sum of all the prizes paid by all MET's during the same period):

1. Being clear that the principle of favoritism does not apply in tax matters, the Constitutional Court and the Council of State have already accepted that it be applied in state contracts to non-consolidated situations and for reasons of justice and equity.

2. It would not be applied retroactively, which is the clear prohibition, but in new fiscal periods that for the case of liquidation of exploitation rights has a monthly cut.

3. The rule did not establish periods of transition or phased application, therefore it is not given to the entity to try to create them against the principles of legality and equality.

4. It is clear and so has the Vice Minister of Finance and the Senator who led the reform, that the new norm has an objective of relief to safeguard the industry of those located that had been suffocated with tax surcharges, to give it a boost and apply principles of equity and encourage legality.

5. The principle of legality of the tax is imperative and the entity does not have legal floor to apply a "presumptive rate" understanding this as the floor that brought Article 14 of Law 1393 of 2010, when it imposed the application of the highest value and left the tariff of Article 34 of Law 643 of 2001 unaltered as a minimum payment.

Finally, it is worth briefly mentioning the pronouncements of high courts that I mentioned:

In Sentence C-527 of 1996, the Constitutional Court with a presentation by Judge Jorge Arango Mejía, was forceful in interpreting the philosophy of article 338 of the Constitution, indicating that if a rule benefits the taxpayer, avoiding that his charges be increased, in a general, for reasons of justice and equity, it can be applied in the same period without breaking article 338 of the Constitution ".

For its part, the Council of State, in 1998 with sentence No. 8331, fixed its position under which it considers that taxes are not more than a duty of all citizens to contribute to the State's burdens, therefore it cannot be considered that a tax rule can be applied retroactively wielding favorability "because taxes do not constitute a punishment, nor a tort to the taxpayer". This means that the application of a new tax law should be immediate.

It is to note that I bring up the meaning of taxation in a broad way to call taxes, fees, state fees and contributions.

Extra: Another thing that does not admit discussion is that the VAT tax should never be part of the base for the liquidation of the Exploitation Rights because this has been contemplated by several mandates that are in force, and now it is ratified once again by the Paragraph 2 ° of Article 59 of the new National Development Plan: "Paragraph 2 °. In no case the VAT tax will form part of the basis for calculating the exploitation rights provided in the following article. "

The other norms are Decree 427 of 2004, Article 1 that says: "Paragraph 2º. In no case shall the sales tax referred to in this article form part of the basis for calculating the exploitation rights provided for in Law 643 of 2001. " And Article 14, of Law 1393 of 2010, has the following content: PARAGRAPH 2o. In no case shall the VAT tax form part of the basis for calculating the exploitation rights provided for in the following article. "

The truth is that COLJUEGOS has always turned a blind eye to this and is coming an avalanche of claims by dealers to get back the highest value liquidated.

Taking into account that the entity has never allowed total freedom, as is due, for the settlement, declaration and payment, imposing through the so-called "suggested liquidations" its sacred will, has induced the concessionaire to pay more for this item, preventing First, the VAT value of each MET is discounted before paying the monthly value of the exploitation rights.

* Gloria Eugenia López is a specialist in administrative law and state contracting, leads several legal projects in regulation and advises regional entities.