Below we present the regulatory summary for the month of August 2022, with the main legal sources published by the Colombian authorities:
At Amézquita we want to support you in solving your problems. For this reason, we are constantly updated on the various legal sources of interest to your companies.
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The DIAN, by concept, clarified the duty of those obliged to provide information in the RUB to identify their final beneficiaries.
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The procedure for the presentation of the Transfer Pricing Information Statement – Form 120, the notification of the Country by Country report, is established.
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The DIAN issued a unified concept on the obligation to invoice and the electronic invoicing system.
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The Superintendency of Companies recalled that the restriction of Article 215 of the Commercial Code extends to the S.A.S.
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The Superintendency of Companies clarified that the Compliance Officer of SAGRILAFT and PTEE must be domiciled in Colombia.
The Superintendency of Companies clarified that the provisions of Decree 176 of 2021 on rules applicable to meetings of the highest corporate bodies of legal entities are not extended to other situations.
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Obliged companies must define the appropriate mechanisms to comply with SAGRILAFT.
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The rules of public order limit the private will of the shareholders embodied in their bylaws, as clarified by the Superintendence of Companies.
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The Superintendency of Companies clarified that cross-border corporate redomiciliation is not possible in Colombia.
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By means of a concept, the Superintendency of Companies clarified the possibility for a public limited company to acquire its own shares with reservation of usufruct.
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As of September 1, the progressive massification of the digital ID in Colombia will take place.
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The Bank of the Republic modifies procedures applicable to foreign exchange operations.
Single Registry of Final Beneficiaries RUB
DIAN. Concept 883. July 11, 2022.
Those obliged to provide information in the Single Registry of Final Beneficiaries (RUB) have the duty to carry out all the necessary acts to identify the final beneficiaries of the legal entity or structure without legal personality or similar, without prejudice to the fact that there are other levels of ownership that must be known and, on the contrary, They have a duty to be aware of the entire chain of ownership and to retain such information in support of their duty of due diligence.
However, in the event that one or more final beneficiaries are not known because they do not have all the information on the chain of ownership, the provisions of the third paragraph of Article 17 of Resolution 164 of 2021 must be observed, that is, the documents that support compliance with due diligence must be recorded. In the same way, the entity pointed out that at the time of providing the information in the RUB it must bear in mind that it was not possible to identify all the final beneficiaries, along with the reasons why it was not possible to do so.
This Resolution applies to those obliged to prepare and submit the obligations of the Transfer Pricing Regime, which includes, the Informative Declaration of Transfer Pricing, the Notification of the Country by Country Report, and the Local Report and the Master Report of the Supporting Documentation, through the electronic computer services of the Special Administrative Unit Directorate of National Taxes and Customs DIAN, for the taxable year 2021 and following.
Presentation of the obligations of the Transfer Pricing regime
DIAN. Resolution 1210. August 5, 2022.
Prohibitions on the exercise of the Fiscal Auditor
Superintendence of Corporations. Concept 220-170501. August 5, 2022.
This Firm has addressed the issue in question on previous occasions, indicating that Article 215 of the Commercial Code, categorically restricts that a person can exercise the position of tax auditor in more than five companies by shares, so it has pronounced in the following terms: “Considers the Firm that corresponds to a mandatory norm that remains in force, as it has not been modified, repealed, conditioned or replaced by a subsequent rule and that, consequently, continues to have legal effects against the exercise of the tax audit, especially as regards the prohibition of exercising in more than five (5) companies by shares.”, so that the restriction in question remains in force for those who exercise the tax audit in the Simplified Share Companies as these companies are by shares.
In general terms, the current legal framework related to the restriction of the exercise of the tax audit in companies by shares, extends its effects to all companies by shares, based on the specialty of the regulatory configuration that the legislator has to regulate this activity.
In this regard, the Entity specified that, taking into account the importance of the work and functions performed by the Compliance Officer of both SAGRILAFT and PTEE, it is important that there is a total immediacy in the development of their obligations that allows them to know the economic activity, the market, the marketing channels, the organizational, administrative and human resources structure, among others, so that you can fully and first-hand identify the risks to which the company is exposed, its management and mitigation, reasons why it is required to be domiciled in Colombia. The fact that the Compliance Officer is domiciled in Colombia guarantees that he has a logic, derived from the personal experience obtained directly, that allows him to
Understand the correct understanding of the obligated subject and the variables surrounding its operations. Of course, the foregoing does not prevent the Compliance Officer from carrying out tasks remotely on exceptional occasions and, at the discretion of the obligated company (Numerals 5.1.4.3 of Chapter X and 5.1.5.3 of Chapter XIII). The foregoing, without prejudice to compliance with the requirement of domicile in Colombia.
The Compliance Officer must be
domiciled in Colombia
Superintendence of Corporations. Concept 220-171064. August 8, 2022.
Non-presential and mixed meetings of the highest social bodies
Superintendence of Corporations. Concept 220- 172834. August 10, 2022.
The Entity clarified that the application of the provisions of Decree 176 of 2021, have a restricted scope of application, stating in one of its recitals that: “(…) the transitory paragraph of article 6 of Law 2069 of 2020 allows the National Government to establish the time, the form of the call and the rules applicable to ordinary meetings of the highest corporate body of legal entities, including meetings in their own right, meetings held during 2021 and the necessary provisions for the development of pending meetings for the year 2020. In turn, the aforementioned decree, as expressly established in its text, aims to determine the rules applicable to meetings of assemblies or meetings of partners of the highest corporate body of legal persons that, by virtue of the provisions of the transitory paragraph of article 6 of Law 2069 of 2020, meet during the year 2021.
Consequently, Decree 176 of 2021 regulated the manner, time and place where the ordinary meetings of the highest corporate body that took place during the year 2021, corresponding to the years of the
years 2019 (which at the time were pending to be carried out) and 2020, so it cannot be applied extensively to other situations.
The Superintendency recalled that companies may be exposed to certain risks of money laundering, financing of terrorism or proliferation of weapons of mass destruction (LA/FT/FPADM) and these behaviors can generate serious consequences in the different areas of their activity, due to these risks and their treatment to avoid them it is necessary to activate an internal system of self-control and comprehensive risk management (SAGRILAFT). However, Chapter X of the Basic Legal Circular does not determine how the obliged undertaking is to establish the knowledge of its counterparties and final beneficiaries, nor the way in which the binding lists are to be consulted or the detailed frequency to do so, insofar as it only provides minimum parameters with which it must comply when establishing due diligence or enhanced due diligence, Therefore, it is the duty of the obliged company to define what will be the additional and suitable mechanisms to comply with said obligation of knowledge of counterparties and final beneficiaries, taking into account its activity, risks, materiality and geographical area, among other factors, in order to deploy all reasonable and necessary measures. Within these measures is the form and periodicity in which the binding lists will be consulted, without forgetting that within reason there are sufficient, appropriate and measurable actions in quality and quantity to mitigate the risk, taking into account the characteristics
own of the obligated company and its materiality.
About SAGRILAF and binding lists
Superintendence of Corporations. Concept 220-177213.
August 17, 2022.
Succession rules prevail over statutory rules
Superintendence of Corporations. Concept 220-179379. August 22, 2022.
It must be borne in mind that the rules governing succession matters are of public policy and, in that sense, the expression of the will of the
Shareholders of a simplified joint stock company (SAS) embodied in the bylaws must respect these limits, according to this Superintendence, a statutory provision that provides for the transfer of ownership over a set of shares from a shareholder to others establishing as a condition the death of the person who holds them, being those who would receive them heirs of the shareholder who dies, It could contravene the rules of public policy, in so far as it would possibly be aimed at pretermitizing the application of those rules, replacing the judicial or notarial procedure provided for the transfer of the assets of the deceased to his heirs.
Thus, the autonomy of the private will allows the citizen to freely dispose of his rights. However, this freedom is limited by the rules of public policy.
The Superintendency of Companies stressed that currently in Colombia there is no express regulation that provides for the change of domicile of a Colombian company abroad, or vice versa, since it must be understood that the
“Cross-border redomiciliation” is the act by which a company, domiciled in a certain country, decides to change its domicile abroad without first undergoing a liquidation process or advancing an international merger or spin-off operation (mechanisms, the latter are viable within Colombian legislation to transfer abroad or import assets into the country).
corporate). As a consequence of its “re-domicile”, the company, without interruption, adopts the legislation of its new domicile and ceases to be regulated by the rules of the country of origin. Of course, so that this home transfer can
If it materializes, it is essential that the figure is allowed both in the country of origin and in the country of the new domicile, and both jurisdictions regulate internally what concerns the guarantees provided by the process with respect to the corporate interests, associates and creditors of the company that moves, as well as the other details that the “re-domicilio” implies in each country. In accordance with the foregoing, the mechanism of corporate re-domicile in Colombia, only proceeds if the transfer is made within the national territory, while the registration in the mercantile registry of the reform that such change imposes must only be made in the chamber of commerce of origin, which is responsible for transferring the registrations that rest in its files to that of the new domicile.
It is not feasible to change the domicile of a Colombian company abroad or vice versa
Superintendence of Corporations. Concept 220-179739. August 23, 2022.
New digital ID in Colombia
National Registry of Civil Status. Press Release
August 31, 2022.
The Registry announced that the yellow cards will no longer be produced
with holograms and a process of massification of the document begins
electronic, which will be completely free for young people who process
for the first time the identity document.
On the other hand, the Registrar highlighted some of the benefits of the new
document, such as the impossibility of falsification or adulteration, the
biometric identification and authentication, the impossibility of impersonation or
identity theft, protection of personal data and entry without
passport to all member countries of the Andean Community, in addition
to affirm that: “A renovation plan is going to be made because the two
Certificates will remain in force, but with the decision not to produce the
yellow card, it is understood that the other will lose validity in time and
In the course of two to three years, the approximately 42
millions of documents.”
Finally, the official announced that as of September 1, he will no longer
It was necessary to schedule an appointment to process the document and recalled that the
Process to make the transition from the hologram card to the digital one
It is worth $55,750.
The Superintendency of Companies considered the viability of the acquisition by a corporation of its own shares, with the alienating shareholder reserving the usufruct of the economic and political rights corresponding to them, by virtue of the provisions of article 832 of the Civil Code, according to which bare ownership may be transferred by an act between the living and transmitted by reason of death. given the absence of any special rule that establishes otherwise in the Civil Code or in the Commercial Code. In any case, the entity indicated, the rights inherent to the repurchased shares will be suspended under the terms of article 396 of the Commercial Code, as long as they belong to the company, so it will be up to the highest corporate body to analyze whether to make the decision to reacquire the shares offered with reservation of usufruct and, in case of reacquiring them, contemplate such limitation when it intends to dispose of them, distribute them or use them for charitable purposes, rewards or special prizes, under the terms of article 417 of the Commercial Code.
The viability of the repurchase of shares with usufruct reservation
Superintendence of Corporations. Concept 220-179848.
August 23, 2022.
Amendments to some of the procedures applicable to foreign exchange transactions
Bank of the Republic. Bulletin No. 43. August 12, 2022.
The Bank of the Republic, through Bulletin 43, presented the modifications of some of the procedures applicable to exchange operations, among the adjustments is the modification to the established regarding the purpose of the treatment of the policy of processing of personal data, likewise, adjustments were made regarding the new exchange information system and the representation to third parties and representation of companies and third parties.
