Partners, shareholders, co-owners, associates, subscribers and the like

The first paragraph of Article 48 of the Tax Statute ("E.T.") establishes that "dividends and participations received by partners, shareholders, co-owners, associates, subscribers and similar, which are national companies, do not constitute income or occasional gain". Notwithstanding the importance of such provision, and in spite of the fact that the use of these words is common and reiterated, its application generates uncertainty because such terms are not defined in the tax or corporate legislation, and therefore the viability of a certain operation could depend on the conception that the tax officer has of such terms. For this reason -in the interest of preserving legal certainty-, it is essential to regulate this rule by means of a regulatory decree.

Except perhaps for the words "partner" and "shareholder", (the former being understood as the person who holds an interest in a partnership, such as a limited, collective or limited partnership, and the latter as the person who holds an interest in a capital company, such as an S.A. or S.A.S.), the terms mentioned are not without meaning. ) the mentioned terms are not synonymous and may not even be in the same category of conceptual classification (as is the case of subscribers and shareholders), or if they are, it could be thought that they are in different degrees, as such phenomenon occurs in gender-species relationships (as in the case of associates versus partners and shareholders).

Likewise, to further complicate the issue, the term "and similar" is introduced, indicating that the preceding list is merely enunciative and not exhaustive, thus opening a universe of interpretative possibilities that do not contribute to generate legal certainty.

Although the tax legislation does not define what should be understood by "co-owner", "associate" and "subscriber", there are some loose references in the decrees that were included in the Sole Regulatory Decree on Tax Matters (DUR). This is how it can be understood that the co-owner is the one who is part of an organized community, understood as "the one that uses common property for the establishment and exploitation of a commercial, industrial, agricultural or livestock enterprise (...) and not when the use of the property is made personally and independently by each of the co-owners" (Art. 7, Decree 187 of 1975, DUR-Art. 1.2.1.1.1.1.); that the "subscriber" or "participant" is the person who holds units of participation in collective funds or portfolios, to which the tax treatment of dividends is extended (Art. 48 of the Tax Statute), and that the "associate" is the member of a worker cooperative (DUR, Art. 1.2.1.23.11.).

This lack of clarity exists not only in Colombia but also in other jurisdictions, where certain countries have analyzed the issue from a corporate point of view before approaching it from a tax perspective. In their book Cent Ans de Droit Luxembourgeois des Sociétés (Larcier, 2016), Valérie Simonart and Alain Steichen analyze the difference between the concepts of "shareholder" or "partner" and that of "associate" concluding that while the former obtains its quality from the fact of having made a contribution to the corporate entity (or having acquired the shareholding of someone who at the time did so) the associate obtains its quality from the fact of having supported the corporate entity in some way different from that.

In this sense, it is concluded that the associate, instead of being a "shareholder" (owner of shares) is a "stakeholder" (owner of an interest). Thus, an associate may be a creditor, financier or provider of funds ("bailleur de fonds"), a worker or a partner in industry without estimation of value, among other collaborators of the economic entity.

Thus, it is clear that while all shareholders are associates, not all associates have to be shareholders. The authors conclude by indicating that, for the sake of clarity, two types of associates could be differentiated; the shareholder-associates ("actionnaires-associés") and the shareholder-investors ("actionnaires-investisseurs") where the difference between them is the existence or not of a corporate spirit or affectio societatis.

In order to have certainty as to who is entitled to receive the dividend as such, it is necessary to have a legal regulation that clearly defines the terms "partner", "shareholder", "co-owner", "associate" and "subscriber" and defines what can be understood by terms "similar" to these.