Ambigüedad y vacíos normativos en la clasificación del IVA en alimentos (tortillas): implicaciones fiscales y estrategia para reducir la incertidumbre en TORTI S.A.S.

Abstract

This paper analyzes the impact of regulatory ambiguity on the tax classification of tortillas produced by TORTI S.A.S. and its effect on the determination of Value Added Tax (VAT) and the generation of tax contingencies. Using a doctrinal and jurisprudential methodology, the constitutional (Political Constitution of Colombia, 1991), legal, and administrative framework governing VAT treatment for bakery products in Colombia is examined. It identifies that the absence of an express definition in Article 424 of the Tax Code (Senate Secretariat, 1992) leads to divergent interpretations as to whether tortillas should be treated as taxable goods or as exempt from the tax. Four viable interpretations are presented and evaluated, based on literal, functional, technical-tariff, and procedural criteria, and the fiscal risk and economic impact of each are weighed. The results demonstrate that tariff classification according to the Andean Nomenclature (NANDINA), complemented by a binding ruling from the Colombian National Tax and Customs Directorate (DIAN), constitutes the most robust strategy for ensuring legal certainty in compliance with tax obligations. It is concluded that the ambiguity detected reflects a deficiency in legislative drafting that requires express intervention from the Colombian legislature to establish objective classification criteria for bakery products and strengthen the principles of legality, equity, and coherence of the tax system.