Final Beneficiary – Control Situation
Shares of shareholder that has not paid his shares in a SAS may be sold at his own risk and expense through a commission agent
Juni 10, 2022Deutsche Verstaatlichung
Juni 10, 2022
All companies in Colombia must review the control situations registered, as all the companies in each business group must be listed and prepare to register the beneficial owners (natural persons) in the RUB.
According to External Circular 100-000003 of 2021, the Superintendency of Companies stated that for the purposes of Article 30 of Law 222 of 1995, all companies linked to the business group or control situation must be listed, including companies in liquidation, indicating the entities through which control is exercised, in cases of indirect control.
It should be noted that in External Circular 100-000003 of 2021, the Superintendency of Companies includes a reference to "beneficial owner", citing the Manual on beneficial ownership prepared by the Secretariat of the Global Forum on Transparency and Exchange of Information for Tax Purposes of the Inter-American Development Bank (IDB) and the Organization for Economic Co-operation and Development (OECD).
From the perspective of ML/TFTP/ATF/ATF prevention systems, it is not enough to be aware of the existence of a situation of control or of a corporate group, but due diligence must extend to the identification of the beneficial owners in the case of natural persons who own, directly or indirectly, a stake of more than twenty-five percent (25%) in the legal person with which the contract is entered into, or who, without being its owner, exercise control over the company.
In the tax sphere, the DIAN issued Resolution 164 of 2021, which regulated the amendments introduced by the Social Investment Law (Law 2155 of 2021) to Articles 631-6 and 631-6 of the Tax Statute.
Law 2155 of 2021 created the obligation to report beneficial owners through the new Single Registry of Beneficial Owners (RUB), which is part of the Single Tax Registry (RUT).
With this, national companies, as well as foreign legal entities that have more than fifty percent (50%) of their assets in Colombia according to their financial statements, are obliged to provide, maintain and update the information of their beneficial owners in the RUB.
It should be noted that under the terms of Article 631-5, as in the IDB/OECD manual, only natural persons who directly or indirectly own or control an entity, and those who exercise effective control over a legal person, are beneficial owners.
According to these rules, beneficial owners of a legal person are natural persons who individually or jointly, directly or indirectly, hold five percent (5%) or more of the capital, voting rights, or benefit from five percent (5%) or more of its assets, or otherwise exercise direct or indirect control over the legal person.
If a natural person is not identified, the beneficial owner shall be the legal representative or whoever has the highest authority in the management or direction of the vehicle.
In the case of unincorporated structures, beneficial owners are the natural persons who are settlors, incorporators, trustees, beneficiaries, beneficiaries, trustees and conditional beneficiaries, or have a similar or equivalent position, or any natural person who exercises control over the same or has the right to enjoy or dispose of the assets, benefits, results or profits.
The deadline for providing the information to the RUB expires on the thirtieth (30th) of September two thousand and twenty-two (2022).
Failure to register the beneficial ownership information in the RUB may result in the closure of the establishment, premises or office for one (1) day for each month or fraction of a month of delay, or the imposition of a fine equivalent to one tax value unit (1 UVT) for each day of delay, if there is no establishment, premises or office; if erroneous or incomplete information is provided, the fine shall be equivalent to one hundred (100) UVT, and if the information is not updated, a fine equivalent to one (1) UVT shall be imposed for each day of delay, under the terms of Article 658-3 of the Tax Statute.
In accordance with the above and under the terms of External Circular 100-000003 of 2021, the registration of the situation of control or business group must list all related companies, which under the terms of Article 260 of the Code of Commerce, includes the parent company, subsidiaries and affiliates.
In addition, and under the terms of Resolution 164 of 2021, they must be registered in the RUB, listing the natural persons who individually or jointly, directly or indirectly, hold five percent (5%) or more of the capital of the parent company.
