Some may remember that in the year 2020, after the closures of both gambling halls and Coljuegos offices, one of the first acts of "reactivation" by the entity was the opening of processes for inaccuracies in the payment of exploitation rights and administration expenses.

Apparently, the cessation of activities to which we were all forced due to the pandemic gave Coljuegos enough time to review possible inaccuracies from years ago, even in contracts already terminated.

Thus, since the end of last year many casino operators were linked through Orders of Formulation of Charges for possible inaccuracies of fees paid from 2018 onwards (interests on exploitation rights payments); which obviously implies concern for these companies, since we are talking about responding to these accusations with evidence consigned in documents that have been archived for some years, which depend on online connection service providers with whom sometimes there is no longer any commercial relationship, or simply it is about contracts already terminated and companies that no longer operate their corporate purpose.

Now, we do not denounce that Coljuegos is somehow proceeding in an irregular manner with the opening of these sanctioning processes, since in principle the supervision of contracts is one of the functions of the administrative entity of the rent monopoly, and on the other hand it is evident that the actions are being carried out in compliance with the procedures set forth in the law and guaranteeing the fundamental right to due process of the operators.

What is frankly striking in this matter is that we are talking about exploitation rights fees and administration expenses from several years ago.

Is there any expiration term in which the entity can no longer sanction for possible very old inaccuracies?

In this respect, Law 643 of 2001, which regulates our activity, in Article 44 of the Regime of Gambling, in which it presupposes a penalty of 160% of the value of the inaccuracy in case it is proven, also states textually that "The term to issue the liquidations and penalties... will be of two (2) years counted from the moment of presentation of the declarations".

This rule, clear and simple to understand for anyone, in our opinion indicates that currently Coljuegos could not impose a penalty for inaccuracy for exploitation rights declared, submitted and paid prior to November 2019. However, it seems that the matter is not that simple.

We have known the sense of some decisions of the Vice-Presidency of Operations that in this type of cases dismisses the application of article 44 of Law 643 of 2001 regarding the term for issuing settlements and penalties in case of inaccuracies.

The above, since in the opinion of the entity, given that article 16 of law 1430 of 2010 added article 41 of law 643 of 2001 including the following clause: "The declarations of exploitation rights and administration expenses of gambling presented without total payment, will not produce any legal effect, without the need of an administrative act declaring it".

In this way, at the discretion of the Vice Presidency of Operations of Coljuegos, this article allows not taking as a reference date the liquidation and payment of the fee of the exploitation rights to start the two-year count, since according to this analysis, since it does not produce any effect, the term of expiration for the presumed inaccuracy does not begin to run.

In our opinion this conclusion besides being erroneous is a violation of the constitutional guarantees of the operators of gambling, since what the clause of article 41 proposes is an ineffectiveness of these liquidations declared inaccurate but not an inexistence of the declaration.

To put it in simpler terms, the presentation, declaration, and payment of exploitation rights in a presumably inexact manner generates a situation that must be investigated by the entity and therefore it has a legal term of two years to advance such investigation and, if it is the case, sanction the inexactness when there is no doubt about it.

However, what the entity proposes based on the final paragraph of Article 41 of Law 643 of 2001 is that since no effects are produced, the expiration term of its sanctioning action does not begin either; thus, leaving the situation open so that at any time the action can be initiated and even sanctioned with fines of 160% of the value allegedly not declared.

This inadequate interpretation of the rule, in our opinion, is already violating the fundamental rights of some concessionary companies, so we hope that Coljuegos will study and determine the real scope of this final paragraph of article 41 of Law 643 of 2001 so that in future occasions it can be applied in its correct scope.

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*César Emilio Pacho Algarra is Legal Director of TECNASEG, insurance placement agency specialized in compliance policies for gambling industry PBX (1) 236 3645- 236 0834