The change in the shareholder structure and its tax effect

On February 19, 2018, the Dian issued Official Letter 000175 by which it responded to a taxpayer's request according to which he asked "to clarify whether numeral six (6) of paragraph 3 of Article 240 of the ET, applies in the case of a Simplified Joint Stock Company that carried out a shareholding recomposition in the month of December 2016 and registered the respective Assembly Minutes in the month of January 2017".

In its response, after citing the aforementioned legal provision, the Dian indicated that "the change of shareholder composition that any company makes after the aforementioned date, i.e. as of December 30, 2016, will imply the loss of the preferential treatment and thus the company is subject to the general income tax rate". Subsequently, the Dian made an account of the commercial rules governing the commercial registry and concluded that "it is held that the minutes of shareholders' meetings -sic- must be recorded in the commercial registry to be considered effective and thus produce legal effects before third parties (...).

Consequently (...) the change of shareholder composition of a company is understood to have taken place from the date of registration of the respective meeting minutes in the commercial registry (...) this means that the same was effective in the month of January 2017 and therefore its legal effects are produced from the date of registration in the commercial registry".

This reasoning of the Dian is erroneous, which leads -necessarily- to a wrong conclusion.

In the first place, although the consultation is made in the abstract, that is to say, citing the "shareholding recomposition" as a kind of title for the transfer of the domain of some shares (without specifying the way in which this is done), it is necessary to study the probable scenarios through which the operation would be made, which will lead us -indefinitely- to the same point and conclusion.

If the "share recomposition" in the S.A.S. takes place through a transfer of registered shares against which there is no type of restriction (their negotiation is not subject to preemptive rights, they are not pledged, nor are they in litigation with their transfer subject to judicial authorization, nor do they have any other type of limitation) such act, being consensual, is perfected with the agreement between the parties, but for it to be enforceable against the company it will be necessary to register it in the company's shareholder registry book. Such registration, contrary to what the Dian indicates in its Official Communication, is not a registration that must be made before the Chamber of Commerce, but rather, as indicated, it is an internal registration that is made directly by the company in its shareholders' registry book.

If the "shareholding recomposition" takes place by virtue of a capitalization, either from internal equity accounts or by the entry of external resources, this does not imply the recording of a shareholder's deed, This will not imply either to register a minute in the commercial registry of the Chamber of Commerce because -assuming that the authorized capital allows it- it will be enough to register a certificate of the statutory auditor where the increase of the subscribed capital is accredited (act that can be done -without incurring in default- within the month following the capital increase in accordance with the provisions of Article 1 of Decree 1154 of 1984).

The fact that the capital increase subscribed is recorded in another fiscal year in no way detracts from the fact that the operation was carried out -for all purposes- in the immediately preceding year, since it is the share subscription contract (consensual contract) which determines for the parties the moment in which the status of partner is accepted in exchange for making a contribution.

The case indicated by the Dian could only occur if, for example, the transfer of shares were subject - as a condition precedent - to the authorization of a third party (of a creditor, a judge, etc.). In that case, it could be understood that if such authorization is only given in the year 2017, then as from that year the company's shareholding would be understood as "repurchased", losing of course the same (according to the legislation currently in force) the benefits of Law 1429 of 2010.

In conclusion, the premise used by the Dian to solve the consultation, which is that any type of "shareholding repurchase" must be preceded by (and is conditioned to) the registration in the Chamber of Commerce of the act approving such transaction -under penalty of ineffectiveness-, suffers from an absolute conceptual error that must be corrected by the same entity, because while it subsists, it obliges the tax officers to obey the same.