VAT is a national tax levied on, among other things, the sale of movable tangible property within Colombia. ”Sales” are regarded as all acts involving the transfer of the ownership of goods against consideration or for free.
The above ruling was issued to resolve a dispute between the tax authorities and a taxpayer involved in the delivery of goods under an employees’ incentive scheme. The taxpayer marketed and sold its products via catalogues and a network of promoters that received goods as rewards for achieving their sales objectives.
Although there was a transfer of ownership of a movable tangible property, the taxpayer did not charge VAT, which triggered questions from the tax authority. The dispute was ultimately solved by the Council of State.
The Council of State ruled that VAT was not due because the operation was not a sale by the taxpayer, but an incentive structure constituting an expense associated indirectly with the income producing activity. It can be inferred from this ruling that not all deliveries of goods are subject to VAT.
This conclusion was unexpected, given the broad definition of a sale mentioned previously. Theoretically, the decision is only binding for the parties involved in this case. Taxpayers involved in similar transactions should nevertheless monitor rulings on this topic. If the Council of State follows the same line in other cases, it could generate opportunities to reduce the tax burden.