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The tax of $ 4 per kilowatt hour consumed was approved last year in President Iván Duque’s Development Plan. However, the Constitutional Court found it to be unconstitutional.
Users of the energy service in strata 4, 5 and 6, as well as commercial and industrial users, who since last year were paying a surcharge of $ 4 pesos per kilowatt / hour consumed, will no longer have to respond for that surplus. In a recent decision, the Constitutional Court determined that this charge was unconstitutional because it was intended to pay the obligations of private public service companies such as Electricaribe, which is prohibited by Article 359 of the Political Constitution.
The surcharge of $ 4 pesos per kilowatt hour for said population was ordered in article 313 of the Development Plan of President Iván Duque (Law 1955 of 2019). However, the norm was sued and the high court reviewed the case finding that, in effect, the tax does not correspond to the notion of “social investment” as established by the Constitution, but rather it was a specific destination income, which which is prohibited. In that sense, with a presentation by magistrate Alejandro Linares, the Court overturned the item.
“There is no doubt that public services are inherent to the social purpose of the State, which has the duty to ensure their efficient provision to all the inhabitants of the national territory. However, this purpose is not specified in the specific destination of a national income ”, stated the Constitutional Court, indicating that the collection in question is intended to pay the obligations of the electric power companies through the Business Fund of the Superintendency of Services Public.
In other words, what the high court explained is that the provision of public services in the country is an obligation of the State, which has the responsibility to guarantee them. Therefore, a kind of additional tax should not be charged to a certain population to finance the obligations (debts) of private companies that provide, in this case, the energy service since the taxes were not created as “lifesavers” for companies. .
“Said destination is contrary to the principle of democratic deliberation, since the ex post rescue of a particular company in a certain sector, as is the case of Electricaribe, cannot be classified as ‘social investment’,” said the Court, explaining that Congress can approve a “public policy aimed at the entire national territory and not limited to the financial and administrative cleanup of a private company that provides home public services, taken over in a particular region.”
The high court added that the surcharge was a “benefit of a unilateral nature” because the taxpayer who was obliged to pay it did not receive any additional consideration or benefit from the State. Finally, he ordered that the decision to end the tax has immediate effects and, therefore, will be applicable to the next billing of the populations affected by the surcharge.
