Control situation in S.A.S. sole proprietorships

On April 18, 2018, the Ministry of Commerce, Industry and Tourism issued Decree No. 667, through which it regulates the registration process of the control situation applicable to Simplified Joint Stock Companies (S.A.S.) when they have only one shareholder and the shareholder is a natural person. In essence, the regulation indicates that when this is the case, the sole shareholder must register its control situation at the time of incorporation or, if it does not do so, it must inform in writing who holds such condition. Such document will be sent to the Superintendence of Corporations, the entity in charge of the inspection, surveillance and control of commercial companies.

The decree establishes that in the case of S.A.S. previously constituted, the registration of the control situation must be made in accordance with the provisions of Article 30 of Law 222 of 1995, that is to say, within 30 days following the occurrence of the configuration of the control situation. Likewise, the rule indicates that in the event that the sole shareholder of the S.A.S. is a legal person or is not a sole shareholder, there will be no need to provide the form to register the situation of control at the time of incorporation, since "it is the duty of the controller or controllers of the company to register the situation of control or corporate group under the terms of Article 30 of Law 222 of 1995".

Finally, the aforementioned article indicates that the registration of the control situation registration form will cause "the payment of the registration tax and the registration fees with the taxable base and the rate established in the law".

Although the decree has a valid purpose, which is to achieve the registration of the control situation of the shareholders, there are many questions and questions that arise from the analysis of the same.

In the first place, it is concluded, from the interpretation of the regulation, that at the time of incorporation of a new S.A.S., in case the sole shareholder does not want to be registered as controlling shareholder, he/she must inform in writing who holds such status, provided that the person who holds such status is a natural person. In the event that the actual controlling shareholder is a legal entity, whether domestic or foreign, or a plural number of shareholders (natural or legal persons), the incorporating shareholder is not obliged to indicate the identity of the latter.

Secondly, it is strange -to say the least- that through a decree of a commercial nature, the taxable event for registration is being expanded (or modified) to include the registration of acts that, by mandate of Article 226 of Law 223 of 1995, are expressly excluded from it, such as the registration of "acts or orders that do not incorporate a pecuniary right in favor of one or several persons, when by legal mandate they must be sent for registration by the competent official". This excess of the decree over a law that clearly exempts from the mentioned tax the registration of such type of documents implies that such provision -if sued- may be declared null and void.

Thirdly, it is clear that prior to the issuance of the aforementioned decree 667/2018 it was not possible to predicate the obligation of natural person shareholders to register the situation of control. This is because the aforementioned Article 30 of Law 222/1995 is clear in indicating that such obligation corresponds to "the controlling company", reason for which, if the controlling company is not a company, the obligation to make such registration could not be predicated on it.

It should be noted that this decree will be in force as from the day after three months of its publication, that is, as from July 19, 2018.