This second installment is related to the previous column entitled CORPORATE PURPOSE OF COMPANIES ENGAGED IN INTERNATIONAL TRADE, which as a whole, has the purpose of providing opinions for investors, domestic and /or foreign, to create corporate structures and dynamic operating models in accordance with the new realities of global business.

On this matter, Prof. Francisco Reyes Villamizar, in his book ‘Derecho Societario’ (Corporate Law), fourth edition, states:

“According to FARINA’s accurate definition, 'Capital is an abstract, intangible, and unchanging figure that represents the value of the assets which the partners have contributed or undertaken to contribute in ownership. Capital is a legal concept; it is an unchanging figure since it remains constant despite any variations that the equity may undergo’.”        

For his part, treatise writer José Ignacio Narváez states in his work Teoría General de las Sociedades (General Theory of Companies):

“…. "… that the capital of a company being incorporated reflects the expression of monetary value resulting from the combination of monetary contributions and other assets that can be valued in money. Therefore, at that moment, the capital normally coincides with the corporate equity." 

Capital is considered to be an abstract figure, insofar as it does not refer to a specific asset within the corporate assets. It is fixed, since it remains stable over time unless the members make increases and /or reductions through the legally established mechanisms. It is intangible, given the general limitation of its reimbursement, which aims to safeguard the rights of the company’s creditors.

The highest governing body of the company is determined depending on the type of company. In the case of corporate enterprises, this will be the General Shareholders’ Assembly, whereas in joint-stock companies or stakeholders, it will be the Shareholder’s Meeting.

As to the capital stock, in joint-stock companies or stakeholders, there is a single value, generically referred to as share capital.

By contrast, in the case of joint-stock companies, we will refer to the authorized, subscribed and paid-in capital. In relation to these, the Superintendence of Companies, in its Official Letter 220-285186 dated November 20, 2023, stated:

“Authorized Capital: also referred to as “nominal capital”. It represents the amount agreed upon by the shareholders at the time of incorporation of the company, and serves as an ideal figure necessary to enable the development of the company's purpose (this capital may be increased through an amendment to the bylaws, a decision that must be adopted by the General Assembly of Shareholders).

It is worth specifying that the shares not subscribed at the time of incorporation, will remain in reserve, to be issued and allocated later to the shareholders or third parties that are linked to the company.

Subscribed Capital: This refers to the portion of the authorized capital that shareholders have committed to pay within a term not exceeding two years. It represents the contributions of the shareholders, with the respective amounts and percentages recorded in the shareholders' registry book. If all the shares of the company are listed as placed, the authorized and the subscribed capital will obviously coincide. For the future issuance and placement of shares, an increase in authorized capital is required. This capital can be increased by: a) issuing reserved shares, i.e., those representing the authorized capital that has not been subscribed; b) capitalizing profits or the revaluation surplus account; c) capitalizing debts.

Paid-In Capital: This refers to the portion of the subscribed capital that has been effectively paid to the company.” 

Finally, in the case of branches of foreign companies, there is the allocated capital, understood as the amount allocated to the branch for the development of its activities in Colombia. In addition to complying with commercial regulations, the assigned capital must comply with the provisions of the foreign investment and international exchange regime in relation to the registration and channeling of foreign currency.

Regarding the assigned capital, the Superintendency of Companies, through Official Letter 220-027501 dated March 16, 2021, stated:

It is important to highlight that for a foreign company to conduct permanent business in Colombia, it must establish a branch, as set forth, among others, in Articles 471 and 472 of the Code of Commerce.

From a broad perspective, the difference between capital and equity lies in that equity encompasses the company’s assets and liabilities, while capital stock is a specific account within equity.

For better clarity, it is useful to refer to what the Superintendency of Companies stated in its Official Letter 340-12455 dated March 7, 1997, as follows:

“the economic equity is defined as the residual value of the assets of an economic entity, after deducting all liabilities, as provided in Article 37 of Decree 2649 of 1993. It comprises, among other concepts, the subscribed and paid-in capital or social contributions, as applicable, capital surplus, reserves, the revaluation of equity, the accumulated results and those of the period (profits or losses), and surplus from valuations”.

The official letter in question refers to the composition of the equity under the framework of Decrees 2649 and 2650 of 1993, which governed accounting standards until Colombia adopted the new framework outlined in Decree 2420 of 2015. This new framework aligns with the International Financial Reporting Standards (IFRS). According to these regulations, equity includes: capital stock, undistributed results generated by the entity, adjustments resulting from the application of IFRS 1 (first-time adoption of IFRS), reserves, share premium, revaluation surplus, and adjustments to retained earnings due to the effect of correction of errors or changes in accounting policies.

At the moment of a company’s incorporation, there will be symmetry between its capital stock and the equity. However, once the company begins to develop its corporate purpose, this symmetry will no longer exist, as equity is a dynamic concept that reflects the economic history of the entity, unlike capital, which is fixed.

3.1. Impact of the Capital Stock and Equity on Determining the Value of the Company’s Interests.

Continuing with the distinction between capital stock and equity, it is appropriate to refer to its incidence in the nominal and intrinsic value of shares, quotas, or parts of interest.

On this matter, Prof. Reyes points out:

“It should be clear, therefore, that the concepts of share capital and equity pertain to different legal and economic realities. This differentiation is crucial for determining two concepts related to the shares, quotas, or interests into which the share capital is divided: 1) the nominal value, which refers to the statutory figure set at the time of the company’s incorporation. This corresponds to a voluntary division of the contributions made to the company’s social fund; and 2) the intrinsic value, which corresponds to a valuation of the capital shares, for which the company’s capital position is taken into account. Thus, while the nominal value is simply the sum of subscribed or share capital divided by the number of shares or quotas into which it is divided, the intrinsic value is the sum of the net assets of the company divided by the number of shares or quotas in circulation”.    

Thus, we can state that capital stock corresponds to nominal value, while equity corresponds to the intrinsic value. 

3.2. Impact of Equity on Corporate Taxation.

Since its inception through Law 78 of 1935, the wealth tax has been subject to criticism for being considered anti-technical, as it effectively taxes income again, undermines savings, and discourages investment.

In its beginnings, the wealth tax was conceived as a temporary measure, complementary to the income tax and was aimed at both individuals and legal entities. Nonetheless, its application to legal entities has undergone various changes over time.

Over the years, this tax has been treated in different ways. However, it is as of Law 2277 of 2022 that this tax has become a permanent feature of the Colombian fiscal system.

At present, a tax reform bill is under consideration, which includes modifications to the wealth tax. It specifically proposes changes to the taxpayer base by lowering the threshold from 72,000 UVT (Tax Value Unit) to 40,000 UVT. Moreover, domestic companies and permanent establishments of foreign companies would become subject to the wealth tax on their non-productive fixed assets.

The proposed changes to the wealth tax depend on the legislative approval of the tax reform bill. Notwithstanding, it should be noted that this tax is recurrently subject to analysis and proposals for changes, even more so during periods of budget deficits.

3.3. Incidence of Equity on Companies Engaged in Foreign Trade.

Companies engaged in foreign trade in Colombia, in addition to complying with the commercial legislation, are subject to customs regulations primarily outlined in Decree 1165 of 2019 and further detailed in Resolution 46 of 2019. These specialized customs regulations establish equity-related requirements for certain entities, which must be adhered to for the performance of their activities.

By way of reference, the following are some of these entities:

• Customs Agencies.

○ Level 1 Customs Agency: One hundred and fifty-eight thousand seven hundred (158,700) Tax Value Units (UVT).
○ Level 2 Customs Agency: Nineteen thousand eight hundred and sixty-nine (19,869) Tax Value Units (UVT).
○ Level 3 Customs Agency: Six thousand four hundred and sixty-one (6,461) Tax Value Units (UVT).
○ Level 4 Customs Agency: One thousand nine hundred and ninety-five (1,995) Tax Value Units (UVT).

The net worth must be updated as of December 31st of each year, in accordance with the prevailing Tax Value Unit (UVT).

Decree 1165 defines net equity in the following terms:

“Net equity is determined by subtracting the amount of liabilities held by the legal entity from its gross assets. For these purposes, the following assets are excluded: houses or apartments designated for residential use, rural properties, accounts receivable from partners or shareholders, works of art, and intangible assets. In like manner, assets not linked to the customs brokerage activities within the scope of its corporate purpose are also excluded”.

If a Customs Agency reduces its minimum net equity by more than twenty per cent (20%), its authorization will be revoked. 

• International Marketing Companies.

These companies must prove that, as of December 31st of the year immediately preceding the submission of the application, they possess a net worth equal to or higher than the equivalent of four thousand five hundred Tax Value Units (4,500 UVT).

In the case of an International Marketing Company established in the same year it applies for authorization, it will be sufficient to demonstrate that its net accounting equity is equal to or higher than the amount stated above.

As with Customs Agencies, failing to maintain the required net worth will result in the loss of authorization as an International Marketing Company.

• Public Warehouses.

These must prove and account for a net worth in accordance with the minimum values listed below, according to the geographical coverage of their operations.

○ One hundred and forty-six thousand six hundred and ninety-four (146,694) Tax Value Units (UVT) for warehouses located within the jurisdictions of the National Tax and /or Customs Offices in Barranquilla, Bogotá, Buenaventura, Cali, Cartagena, Medellín, Pereira, and Santa Marta;

○ One hundred and two thousand six hundred and eighty-six (102,686) Tax Value Units (UVT) for warehouses located within the jurisdictions of the National Tax and /or Customs Offices in Armenia, Bucaramanga, Cúcuta, and Manizales.

○ Seven thousand three hundred and thirty-five (7,335) Tax Value Units (UVT) for warehouses located within the jurisdictions of the National Tax and /or Customs Offices in Arauca, Florencia, Girardot, Ibagué, Inírida, Ipiales, Leticia, Maicao, Mitú, Montería, Neiva, Palmira, Pamplona, Pasto, Popayán, Puerto Asís, Puerto Carreño, Quibdó, Riohacha, San Andrés, San José del Guaviare, Sincelejo, Sogamoso, Tuluá, Tumaco, Tunja, Urabá, Valledupar, Villavicencio, and Yopal.

In case of non-compliance with the net worth requirement, the warehouse shall have one month to rectify the issue, counted from the date of receipt of the communication informing of the non-compliance.

If the equity is not adjusted within such one-month period, the authorization as a public warehouse will be revoked, without the issuance of an administrative act being required.

Thank you for reading me …