Abusing the anti-abuse clause?

The general anti-abuse clause was incorporated into our legal system by Article 122 of Law 1607/2012 and subsequently reformed by Law 1819/2016. When it was initially incorporated, in 2012, the procedure to remove the corporate veil of the entities involved in the abuse was also regulated -in its entirety-, both in administrative (Law 1607/2012 Art. 124) and judicial (Law 1607/2012 Art. 142) proceedings. While the administrative procedure indicated that the Dian could remove the corporate veil by "expressly and sufficiently motivating the decisions adopted (...) in the special requirement, the Dian could remove the corporate veil by "expressly and sufficiently motivating the decisions adopted (...) in the special requirement". ) in the special requirement, the summons to declare, the statement of charges and the liquidations of assessment or correction" and guaranteeing the application of "the relevant provisions and principles in procedural and evidentiary matters", the judicial process indicated that when it wanted to dismiss the legal personality of a company, the Dian should file a lawsuit before the Tax Authorities, the Dian should file a claim before the Superintendence of Corporations, which -after exhausting the respective judicial process- would rule on the declaration of nullity of the acts of fraud or abuse, as well as the action for indemnification of the possible damages caused.

Fortunately, and coming to reason, the legislator of 2016 understood that -because of the effects that this entailed (especially for stripping the companies of the limitation to their liability and legal personification)- this type of proceedings could only be carried out within the framework of a judicial process, since, in a Rule of Law, only a judge, endowed with impartiality and independence, could have the power to remove the corporate veil. And so it was that Law 1819/2016 amended Article 869-2 of the Tax Statute (E.T.) repealing, completely, the procedure through which the Dian could remove -administratively- the corporate veil. However, in said article the mention that the Tax Administration could remove the corporate veil remained, but this being understood as the removal of the veil made after defeating the taxpayer in a summary verbal proceeding before the Superintendence of Corporations.

The understanding of this matter could not be different, since there is no difference between the expressions "to remove the corporate veil" (established in article 869-2 of the E.T.) and "to dismiss the legal personality" (established in article 794-1 of the E.T.). In the words of Judge Benjamin Cardozo (former judge of the Supreme Court of the United States), these meanings are part of the "mists of methaphor" through which it is necessary to navigate in corporate law to reach the only real phenomenon, which is the delegitimization of the corporate entity.

A few days ago, the Dian published for comments the Draft Resolution establishing "the procedure and application of the general anti-abuse clause". In articles 8 and 25 of such Resolution, the Dian structures -via Resolution- a procedure to remove the corporate veil that is in direct conflict with the judicial procedure established for the same purpose, thus reviving the legal rule that was repealed by Law 1819 of 2016 and completely ignoring the useful effect of the judicial procedure that is currently in force and the exclusive competence that the Superintendence of Corporations has to be the judge of such case.