Conversion of cooperatives into commercial companies
The tax reform bill submitted to Congress by the Government establishes, in its article 163, the possibility of converting cooperatives into commercial companies. Such regulation indicates that such conversion will not generate a solution of continuity with respect to the entity being converted and must be approved by the highest corporate body of the cooperative entity. This same body would also approve the method of exchange of contributions for capital participations, the interim balance sheets as of the last day of the month prior to that in which the conversion is approved and the bylaws of the new company, which shall comply with the requirements established in the Code of Commerce or in Law 1258 of 2008, depending on the type of resulting company.
This article -which despite being regulated within the new special tax regime has no direct relation with it and whose origin and purpose is neither clear nor understandable- transgresses both the solidarity legislation and the corporate legislation, as explained below.
Law 454 of 1998 (conceptual framework that regulates the solidarity economy), in its article 13 numeral 13, and Law 510 of 1999 (regulatory law of entities of the financial, insurance and securities market system), in its article 10, expressly prohibited the transformation of cooperative entities into commercial companies. This has a very valid philosophical explanation, which is that only entities having the same nature can be transformed among themselves, since it is contradictory that an entity whose purpose is to make a profit or profit, becomes an entity whose purpose is to perform non-profit activities, or an entity whose purpose is to benefit its members, becomes an entity whose purpose is simply to benefit the community.
Following this line, the Superintendence of Solidarity Economy, in Concept N0244071 of 2014 stated that an association, corporation or foundation could not be transformed into a cooperative or organization of the solidarity economy and vice versa. The above, because -as stated- foundations, corporations and other entities of common utility are welfare-based (they seek the common interest and are based on solidarity), while cooperatives and other organizations of the solidarity economy are mutual (they are constituted for the benefit of their own associates). Such entity indicated -as already stated- that "the transformation is predicated of those organizations or entities that have the same legal nature".
In the same sense, the Superintendence of Corporations has pronounced in multiple occasions. Thus, in Official Letter 220-85975 dated September 16, 1999 (ratified by Official Letter 220-20018), such entity established that "(...) the regulations foreseen for the matter prohibit the reform of an entity of the solidarity sector to assume the form of a commercial company through the transformation mechanism established in the mercantile system". Likewise, and in the opposite sense, by means of Official Letter 220-076061 of June 20, 2011, which takes up the arguments invoked in Official Letter 220-30821 of June 3, 1997, the Superintendence of Corporations stated that: "the transformation only proceeds in matters of commercial companies, through a statutory reform with the purpose of adopting another type of company regulated in the mercantile system".
Thus, it is intended to allow -through a tax regulation- the transformation of a cooperative into a commercial company, which in addition to transgressing the mandatory rule that regulates the solidarity economy, completely distorts the spirit of the transformations of legal entities, which is that such phenomenon may occur when both entities have the same nature.
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