All companies in Colombia must review the control situations registered since all the companies of each business group must be listed and prepare to register the beneficial owners (natural persons) in the RUB.
In accordance with External Circular 100-000003 of 2021, the Superintendency of Companies indicated that for the purposes of Article 30 of Law 222 of 1995, all companies related to the business group or situation of control 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 Ownership”, 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 Cooperation and Development (OECD).
From the perspective of ML/TFTP/AMLF prevention systems, it is not enough to be aware of the existence of a situation of control or a business 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 entity with which the contract is entered into, or who, without being its owner, exercise control over the company.
In the tax area, 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.
In accordance with the aforementioned rules, beneficial owners of a legal entity are those individuals who individually or jointly, directly or indirectly, hold five percent (5%) or more of the capital, of the voting rights, or who benefit by five percent (5%) or more of its assets, or who exercise direct or indirect control over the legal entity by other means.
If a natural person is not identified, the final beneficiary will be the legal representative or whoever has greater authority in the management or direction of the vehicle.
In the case of unincorporated structures, the ultimate beneficiaries are the natural persons who are settlors, incorporators, trustees, 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 to provide the information to the RUB is September thirty (30), two thousand twenty-two (2022).
Failure to register 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, in case of lack of 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 in the terms of External Circular 100-000003 of 2021, the registration of the situation of control or corporate group must list all related companies, which in the terms of Article 260 of the Code of Commerce, includes the parent company, affiliates and subsidiaries.
Additionally and under the terms of Resolution 164 of 2021, they must register in the RUB, listing the individuals who individually or jointly, directly or indirectly, hold five percent (5%) or more of the capital of the parent company.
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The scope of this bulletin is merely informative; any particular situation should be carefully studied with von Bila, de la Pava & Bertoletti.
