Título IV Capítulo V. Proceso administrativo

The proceedings before the Tax Administration shall be advanced on its own initiative.

Final decisions issued in these proceedings are challengeable before the competent tribunals.

The first request submitted to the Tax Administration shall contain:

1.Designation of the authority, public official or office to which it is addressed. If the request was addressed to a public official, authority or office that lacks jurisdiction to hear the matter raised, on its own initiative and as soon as possible it shall forward it to where appropriate, under its responsibility.

2.Full first and last names of the applicant, indication of being of legal age, civil status, nationality, profession or occupation and place to receive notifications. When the applicant does not act in his or her own name, he or she shall prove his or her authority to represent.

3.Account of the facts to which the petition refers.

4.Requests made.

5.Place and date.

6.Signature of the applicant.

If the applicant does not know how or is unable to sign, another person shall sign at his or her request.

In subsequent requests, it is not necessary to record the applicant's identity information, except for his or her full first and last names.

The omission of one or more of the above-listed requirements shall not be grounds for rejecting the request.

The Tax Administration shall not refuse to receive any matter submitted in writing. Once received, it may reject those that are contrary to decency, to the respectability of the laws and of the authorities or that contain injurious words or phrases, even if they appear crossed out. Any rejection must be duly reasoned and founded in law.

Matters may be handled before the Tax Administration, personally or through a legal representative or agent.

Documents evidencing representation may be submitted in legalized copy.

All proceedings before the Tax Administration are exempt from the tax on stamped paper and fiscal stamps.

The acts of the Tax Administration carried out through the issuance of documents by computer, electronic, mechanical or other similar systems shall be deemed legitimate, provided that such documents, without needing to bear the original signatures, contain the data, legal bases and information necessary for the accurate understanding of their origin and content. Signatures in facsimile form or printed by other means may also be used therein.

Authorizations made by the Tax Administration by means of electronic identification codes shall likewise be valid.

In all cases, the records of electronic identification codes and of the corresponding notices of receipt shall be preserved by the Tax Administration for a period of not less than ten (10) years.

The Tax Administration is empowered to have the documents, records, information or files it receives digitized, kept, stored and integrated into computer, electronic or other similar systems that guarantee their preservation, their faithful reproduction and facilitate administrative management, without prejudice to the provisions of Article 24 of the Political Constitution of the Republic of Guatemala.

The certification of the documentation on record with the Tax Administration in computer, digitized, electronic, mechanical or other similar systems, issued by a public official competent for that purpose, shall be admissible as means of evidence in any administrative or judicial proceeding and shall have full validity and evidentiary value.

The information and operations transmitted by means of electronic communications and signatures shall be recognized in accordance with the regulation on the subject matter and the administrative provisions issued in this regard by the Tax Administration.

In accordance with what is established in Article 101 of this Code, taxpayers, liable parties or their legal representatives duly accredited before the Tax Administration shall have access to the proceedings and may consult them with no further requirement than proof of their identity. University professionals advising taxpayers or liable parties shall also have such access, provided that the latter authorize in writing and with a signature legalized by a Notary the consultation of the proceedings in question.

Every hearing, opinion, advisory report or decision must be made known to the interested parties in the form prescribed by law, and without it they shall not be bound, nor may their rights be affected.

The other persons to whom the decision refers shall also be notified.

Notifications to applicant taxpayers or liable persons shall be made at the place indicated by them in their first application, as long as they have not designated in writing another different place for such purpose.

Notifications shall be made according to the case:

a)Personally.

b)By another suitable procedure.

In the notification, no arguments nor filing of remedies shall be admitted, unless otherwise provided in the law or in the decision.

The following decisions shall be personally notified:

a)Those that determine taxes.

b)Those that determine interest.

c)Those that impose sanctions.

d)Those that grant or deny hearings.

e)Those that order or deny the opening to evidence.

f)Those that deny offered evidence.

g)Those that set a time limit for a person to do, refrain from doing, deliver, acknowledge or express agreement or disagreement in relation to any matter.

h)The decisions in which a warning is ordered and those that enforce it.

i)The decisions in which an appeal is granted or denied and those that decide it.

These notifications may not be waived.

Every personal notification shall be recorded on the same day it is made and shall state the time and place where it was made and shall be signed by the person giving notice, but if he refuses to sign it, the notifier shall attest to such fact and the notification shall be valid.

When making any of the notifications referred to in the preceding article, a copy of the decision issued and of the documents on which it is based shall be delivered and the file shall be identified.

Every personal notification shall be effected within the time limit of ten (10) working days, counted from the day following issuance of the decision in question, under penalty for the notifier in case of non-compliance, of ten quetzales (Q. 10.00) of fine the first time; of twenty-five quetzales (Q.25.00) the second time and of removal the third time.

To effect the notifications, the notifier or a notary designated by the Tax Administration shall go to the tax domicile of the taxpayer or, failing that, to the residence, office, commercial establishment owned by him or to the place where the person to be notified is habitually found or attends, and if he does not find him, he shall make the notification by writ which he shall deliver to his relatives, domestic employees or employees of another nature, or to the suitable person of legal age who is found in any of the places indicated. If he does not find a suitable person to receive the writ or if, there being one, such person refuses to receive it, the notifier shall post it on the door, stating at the foot of the writ the date and time of the action; he shall also make a record in the file of having notified in that manner, specifying that he did not find a suitable person, or that having found one, such person refused to receive the writ.

When it is personally known to the notifier or through reports given to him at the place where the taxpayer is to be notified that the latter has died, he shall refrain from delivering or posting the writ and shall make a record in the proceedings stating how he learned of it and who gave him the information, so that the Tax Administration may proceed to confirm the death.

The notifications may also be made by delivering the writ into the hands of the addressee wherever he may be found. Likewise, by certified mail and by any other suitable means that allows confirmation of receipt, provided that the taxpayer's right of defense is guaranteed.

The Tax Administration may, for those taxpayers who so request, notify at the electronic addresses reported for such purpose by the taxpayers or liable parties, which is evidenced by the notice or record of receipt or delivery showing that the notification was received or delivered at the electronic address of the taxpayer or liable party. Once such notice or record is received by electronic means, the employee of the Tax Administration in charge of the notification must print it on paper and add it to the corresponding file, which shall serve as evidence that the notification was effected.

When notification is made by a notary, the original and a copy of the respective decision shall be delivered to him, the notary being required to sign the record of receipt in a book authorized for that purpose. Notaries shall deliver the copy to the interested party and shall record the notification immediately following the decision.

Attorneys who represent the parties may not act as notifying notaries in the file in question.

The certificate must contain: given names and surnames of the person being notified, place, date and time at which the notification is made, given names and surnames of the person to whom the copy of the decision is delivered, where applicable, the statement of having been delivered or affixed to the door, signature of the notifier and seal of the Tax Administration or of the notary, where applicable.

The promoter of an administrative file has the obligation to designate a house or place to receive notifications and those that are applicable shall be made to him there, even if he changes it, while he does not state in writing another place where notifications are to be made to him. When in the initial requests the interested party does not establish a place to receive notifications, the time limit referred to in article 122 of this code shall be granted for him to do so and, in the meantime, the processing thereof shall be suspended. The other persons to whom the decision refers shall be notified the first time at their tax domicile, at the place indicated by the interested party or at that appearing in the file. Notifications so effected shall have full validity but admit evidence to the contrary.

The Tax Administration may establish, for non-personal notifications, another suitable procedure for these purposes, provided that the taxpayer's right of defense is adequately guaranteed.

A complete and legible copy shall be kept of every decision, which the Secretary of the respective office, or whoever acts in his stead, shall sign and seal, recording the date and time when he signs it and adds it to the bundles, of which he shall enter a notation in the same identified file. Such copies shall be collected duly ordered and paginated, according to the different classes of matters being processed.

The Secretary or whoever acts in his stead must comply with the obligations imposed on him by this article, within twenty-four hours after issuance of the decision, under penalty of a fine of ten quetzales (Q.10.00) the first time he fails to comply; of twenty-five quetzales (Q.25.00) the second time and of dismissal the third time.

The copies of the decisions shall also serve for the reconstitution of any file that is lost.

Notwithstanding the provisions of the preceding articles, if the interested party has stated in the case file that he is aware of the decision, the notification shall produce its effects from that time, as if it had been lawfully made; but the notifier shall not be relieved of the liability that may correspond to him for breach of the obligations imposed on him by his office.

When a person residing outside the place where the central offices of the Tax Administration have their seat is to be notified, the head of the respective General Directorate or office where the file is being handled shall commission the Revenue Administrator of the Department where the person to be notified is domiciled, so that the latter shall in turn designate the employee who is to effect the notification. The commissioned Revenue Administrator is obligated to inform the principal, without any delay and by telegraph, that the respective notification has been effected, indicating the place, day and time at which it took effect. At the same time, he shall return the decision remitted to him to notify, complying with what is indicated by the pertinent articles.

The notifications made in a form different from that prescribed in this Chapter are null. The notifier or the notary who authorizes them incurs a fine of ten to twenty-five quetzales and shall be liable for the damage and losses caused.

*Amended by Article 21, of Decree of Congress Number 03-04 on 22-01-2004 *Provisionally suspended by File Number 112 and 122-2004 on 20-02-2004 *Article 21 of Decree Number 03-04 of the Congress of the Republic repealed by Article 68 of Decree 20-2006 on 06-07-2006 *Proceeding of the partial general unconstitutionality action against Article 21 of Decree Number 03-04 of the Congress of the Republic definitively suspended by File Number 112-2004 and 122-2004, on 23-06-2008

In proceedings before the Tax Administration, all means of evidence admitted at law may be used. Documents submitted as evidence may be presented in original or simple photocopy; for such purpose, the following procedure shall apply:

a)In the case of presentation of the original documents, the taxpayer must also attach a simple photocopy of the document, so that it may be collated with the original, to subsequently be incorporated into the file, with the tax auditor certifying having had the original in view.

b)In the case of presentation of photocopies legalized by a notary, the Tax Administration reserves the right to request exhibition of the original document to collate it with the copy.

c)Accounting certification of the financial statements or other accounting operations of the taxpayer.

When questions of fact are disputed, the evidence period shall be thirty (30) working days, which may not be extended.

The evidence period may be declared expired before its completion, when the evidence had been submitted and the interested parties so request.

Evidence presented outside the evidence period shall not be admitted, except evidence gathered for better resolution, even if it had not been offered.

The Tax Administration, before issuing a final decision, may, on its own initiative or at the request of a party, order, for better resolution:

a)That any document deemed advisable be brought into view.

b)That any proceeding deemed necessary be carried out or that those already carried out be expanded.

c)That any pertinent action on record be brought into view.

*These proceedings shall be carried out within a time limit of no more than fifteen (15) working days. No appeal shall lie against the decision ordering the proceedings for resolution.

When the Tax Administration must require compliance with the tax obligation and the taxpayer or the responsible party fails to comply, a determination on its own initiative shall be made, in accordance with the provisions of Article 107 of this Code.

If the person required complies with the obligation, but such obligation gives rise to objection or adjustments by the Tax Administration, a hearing shall be granted to the obligated person as provided in Article 146 of this Code, on the understanding that upon conclusion of the procedure the amounts paid shall be credited to such person, as provided in the following article.

The Tax Administration, after verifying the returns, determinations, supporting documentation and tax payment documents, if inconsistencies, errors, actions or omissions are established with respect to the determination of their tax obligation that do not constitute crimes or criminal misdemeanors, after the report has been submitted by the auditors who carried out the review where the corresponding inconsistencies are established and prior to granting a hearing, may summon the taxpayer or liable party to remedy them.

In case of express acceptance, total or partial, by the taxpayer or liable party of the inconsistencies, errors, with respect to the determination of their tax obligation, they must pay the resulting tax, and the payment of interest with a reduction of forty percent (40%) and the corresponding sanction for default, reduced by eighty percent (80%), provided that payment is made within the following five (5) days from the date of signing of the administrative record referred to in this article.

If only violations of formal duties are established, upon applying the same procedure described in the preceding paragraph and the taxpayer or liable party expressly accepts them, they must pay the corresponding fine reduced by eighty percent (80%), provided that payment is made within the following five (5) days from the date of signing of the administrative record referred to in this article.

To document the foregoing, an administrative record shall be drawn up in which public officials and employees of the offices of the Tax Administration shall participate, where the express acceptance, total or partial, of the taxpayer or liable party and of the amounts they must pay shall be placed on record.

If the taxpayer or liable party does not pay or does not correct by paying the tax and determined sanctions, after accepting, the file shall continue its corresponding processing.

The file shall continue its processing for the inconsistencies, errors, actions or omissions not accepted by the taxpayer or liable party.

The Tax Administration shall verify the declarations, determinations and documents for payment of taxes; if appropriate, it shall formulate the corresponding adjustments, shall specify the factual and legal grounds, and shall notify the taxpayer or the liable party.

Likewise, the taxpayer or the liable party shall be notified when sanctions are imposed on him, even when they do not arise from omission of payment of taxes.

Upon notifying the taxpayer or the liable party, if adjustments are formulated, he shall be granted a hearing for thirty (30) non-extendable working days, so that he may submit defenses and offer the means of evidence justifying his opposition and defense. If, in responding to the hearing, an opening to evidence is requested, the provisions of Article 143 of this Code shall apply. The evidence period shall be deemed granted, with no further formality, decision or notification other than the request, and the thirty (30) non-extendable days shall run from the sixth (6th) working day following the day of expiry of the time limit granted to respond to the hearing.

If only sanctions are imposed or only interest is collected, the hearing shall be granted for ten (10) non-extendable working days. If, in responding to the hearing, an opening to evidence is requested, the period for this purpose shall be granted for ten (10) non-extendable working days, applying the same procedure described in the immediately preceding paragraph.

The taxpayer or the liable party may express agreement with one or more of the adjustments or the sanctions, without partially objecting to them, in which case the Administration shall declare them final, shall formulate the corresponding assessment and shall set the non-extendable time limit of ten (10) working days for payment thereof, warning that if payment is not made, collection shall proceed through the Economic Coercive Proceeding. In this case, the sanctions shall be reduced to twenty-five percent (25%) of their original amount.

If the taxpayer agrees to voluntarily pay the amount of the taxes with respect to which adjustments have been formulated, without challenging them by means of the application for revocation or waiving the same, a reduction of fifty percent (50%) of the fine imposed shall be applied to him. If the taxpayer opts not to challenge through Administrative Litigation proceedings or withdraws therefrom, a reduction of twenty-five percent (25%) of the fine imposed shall be applied to him.

The file shall continue its proceedings with respect to the adjustments and the sanctions with which the taxpayer or liable party disagrees. In the event that the taxpayer or liable party disagrees with the adjustments formulated, but agrees with and accepts to pay the sanctions imposed, the Tax Administration is obligated to receive payment thereof immediately.

If the taxpayer or the responsible party fails to respond to the hearing, the corresponding decision determining the tax, interest, surcharges and fines shall be issued. Once the decision is final, payment shall be demanded.

Whether or not the hearing has been held, on its own initiative or at the request of a party, the Tax Administration may issue a decision for better resolution in accordance with the provisions of Article 144 of this Code.

Once the procedure is concluded, a decision shall be issued within the following thirty (30) working days:

Upon expiry of the foregoing time limit, if the Tax Administration does not decide and notify the taxpayer of the decision, within one hundred fifteen (115) working days following notification of the conferral of hearing for adjustments in cases in which an evidence period has occurred, or within eighty-five (85) working days following said notification, in cases in which an evidence period has not occurred, the public official or public employee responsible for the delay shall be sanctioned in accordance with articles 74 and 76 of the Civil Service Law, as follows: The first time, with suspension from work without pay for fifteen (15) days; the second time, with suspension from work without pay for thirty (30) days and the third time, with justified dismissal from their post.

The decision shall contain at a minimum the following requirements:

1.Number of the decision and identification of the file.

2.Place and date.

3.Full surnames and given names, corporate name or legal denomination of the taxpayer or responsible party and, as applicable, of the legal representative and his tax identification number (NIT), tax domicile of the taxpayer or responsible party, if such particulars are on record in the file.

4.Indication of the tax and of the corresponding tax period, if applicable.

5.Consideration of the facts presented and evidence submitted.

6.The elements of judgment used to determine the tax obligation.

7.The specification of the sums payable for taxes, interest, fines and surcharges, as applicable.

8.Where applicable, determination of the credit resulting in favor of the taxpayer or responsible party, ordering that it be credited or refunded as provided in Article 111 of this Code.

9.Consideration of the opinions issued, and of the factual and legal grounds of the decision.

10.The signature of the public official who issues it.

If errors of a formal nature are committed upon issuance of the decision, they may be corrected on its own initiative by the Tax Administration. The corrected decision shall be notified to the taxpayer or responsible party and to the other parties, if any.

Facts that may constitute noncompliance with obligations or violations in tax matters shall be documented in writing, and the instruction of the corresponding procedure shall be ordered.

The taxpayer presumed to be in violation shall be present and may request that whatever he deems pertinent be placed on record. In his absence, said right may be exercised by his legal representative or the employee in charge of the corresponding business, premises or establishment, who shall be warned that he must inform the taxpayer immediately.

In case of refusal to comply with any audit act or appearance, a record shall be signed, stating such fact therein.

The records drawn up and the reports rendered by the auditors of the Tax Administration shall have full legal validity unless their inaccuracy or falsity is proven.

Every procedure shall be initiated by a public official or employee, duly authorized for that purpose by the Tax Administration. Such status shall be evidenced to the taxpayer or liable party.