Newsletter february 2025
Superior Tribunal of Medellín – Civil Chamber – Judgment on Interruption of the Statute of Limitations for Contractual Liability Actions
By means of a judgment dated July 16, 2024, the Civil Chamber of the Superior Tribunal of Medellín ruled that the statute of limitations for an action derived from a transportation contract is two (2) years and may be suspended by the filing of a request for extrajudicial conciliation, thereby extending the period until its conclusion.
The plaintiff sought to hold the defendants contractually, extra-contractually, and jointly liable for the damages suffered as a passenger in a traffic accident involving the vehicle. In response, the defendants raised the defense of extinctive prescription, arguing that the lawsuit was filed more than two (2) years after the transportation obligation should have concluded (August 17, 2016).
Article 993 of the Commercial Code provides that “Direct or indirect actions arising from a transportation contract are subject to a statute of limitations of two years. The limitation period shall begin to run from the day on which the transportation obligation has concluded or should have concluded. This term cannot be modified by the parties.”
The plaintiff contended that the filing of the request for a conciliation hearing, considering the suspension period agreed upon by the parties, effectively interrupted the statute of limitations set forth in Article 993 of the Commercial Code.
The judge concluded that, although Article 993 of the Commercial Code establishes a two (2) year limitation period, which would have run from August 17, 2016, to August 17, 2018, the plaintiff’s request for a conciliation hearing on August 17, 2018, in conjunction with Article 21 of Law 640 of 2001, led to the suspension of the statute of limitations on the last day available to initiate the action. Consequently, an additional three (3) months, corresponding to the conciliation hearing period, must be added.
Furthermore, the judge explained that the suspension of the limitation period includes any extensions to the conciliation hearing agreed upon by both parties, as (i) they were mutually agreed upon, and (ii) the request was filed before the expiration of the initial three-month period within which the hearing should have taken place, extending until November 17, 2018. Therefore, the judge did not uphold the defense of extinctive prescription.
Decree 34 of 2025 – Amendment to Decree 2555 of 2010 Regarding Crowdfunding Activities
In line with productive transformation strategies, it is essential to strengthen access to financing, particularly to facilitate the growth of micro, small, and medium-sized enterprises (MSMEs), promote the adoption of advanced technologies, diversify financing alternatives for working capital, strengthen the integration of production chains, and develop workforce capabilities.
Among alternative financing mechanisms, crowdfunding platforms stand out for their ability to finance productive projects. Accordingly, it was deemed appropriate to modify their regulatory framework to expand access to financing across various economic sectors.
Key modifications include:
- The inclusion of individuals with productive projects as eligible crowdfunding recipients.
- Authorization for entities engaged in crowdfunding to develop new services that facilitate compliance with formal requirements by potential recipients.
- Strengthening information mechanisms for contributors.
- Allowing collective investment vehicles to participate in crowdfunding activities.
Key provisions of the Decree include:
- Individuals may receive crowdfunding for their productive projects through a newly created specific modality: “Crowdfunding through debt-representative securities issued by individuals.”
- As an investor protection measure, a maximum amount of 14,245.27 Basic Value Units (UVB), equivalent to COP 164,561,359.04, is set for this modality. Additionally, recipients who obtain financing under this modality may only have one funded project at a time.
- Crowdfunding entities may offer new services, including: (i) Collection and advertising services; (ii) Administration of transaction record-keeping systems for crowdfunding securities; (iii) Technical support services to potential recipients in structuring productive projects, among others.
- Crowdfunding entities must adopt a classification procedure for productive projects based on an objective analysis of the information provided by the recipients. Objective variables such as income, assets, and credit history must be available on a publicly accessible section of the crowdfunding entity’s website.
- Autonomous trusts, collective investment funds, and private equity funds may participate as contributors and recipients in crowdfunding projects.
Resolution No. 000004 of 2025 – DIAN – Prescription of Form 115 for Income Tax and Supplementary Returns for Taxpayers with Significant Economic Presence (PES) in Colombia
Pursuant to Article 20-3 of the Tax Statute, non-resident individuals or entities without a domicile in Colombia but with significant economic presence (PES) in the country are subject to income tax and supplementary obligations on income derived from the sale of goods and/or the provision of services to customers and/or users located in Colombian territory.
Those meeting the criteria set forth in this article must choose between: (i) Filing and paying income tax and supplementary obligations through the prescribed form, or(ii) Paying the tax through withholding at the source under the income tax and supplementary obligations regime for significant economic presence (PES) in Colombia.
Accordingly, this resolution prescribes the form for taxpayers opting to file an income tax return. These taxpayers must register in the Single Tax Registry (RUT) under responsibility code 65. The return must be filed through electronic services using an Electronic Signature (FE) authorized by the Special Administrative Unit of the National Tax and Customs Directorate (DIAN).
Superior Tribunal of Bogotá – Civil Decision Chamber – Judgment on Financial Habeas Data
The plaintiff sought a declaration of the existence of a basic public switched telephone service (TPBC) contract entered into with the defendant, which was in force from March 14, 2007, until April 27, 2009. The plaintiff alleged that the defendant company abused its dominant position by imposing charges exceeding the agreed fixed rate and reporting her as a delinquent debtor to credit bureaus Datacrédito and Cifin from April 2008 to May 8, 2009. Consequently, the plaintiff sought damages for both pecuniary and non-pecuniary harm.
The judge first determined that, although the plaintiff invoked the regime of extra-contractual liability, based on the facts of the case, the rules of contractual liability were applicable. The Supreme Court of Justice, Civil Cassation Chamber (SC-3653-2019), has clarified that liability in financial habeas data cases arises from the collection, processing, and dissemination of debtor information within the contractual relationship—in this case, a telecommunications service contract. Specifically, the claim was based on the improper use of the debtor’s authorization granted to the company, requiring truthful, accurate, and diligent reporting to credit bureaus. The erroneous reports were attributable to the defendant’s billing mistakes, rather than the plaintiff’s non-compliance with obligations.
In accordance with ruling SC10297 of 2014 from the Supreme Court of Justice, Civil Cassation Chamber, the judge recognized damage to María Judith Castillo Hernández’s reputation as an independent and distinct harm, acknowledged by case law since that year. Since this type of damage was not foreseeable when the plaintiff filed the claim (October 3, 2011), the court ruled that the claim could be redirected to specifically address this reputational harm. The court awarded damages of COP 15,000,000 based on judicial discretion (arbitrium judicis).
Technology M&A 2025
Colombia has a culture of entrepreneurship, recognised in the Americas as being a consequence of the temperament of the people, economic and social crises, as well as endemic violence that has fostered resilience and a high capacity for work.
The fostering of human talent through academic training and personal effort is another important characteristic of the country. Public and private scholarship programmes are an important element of training systems for engineers, data scientists and digital technologists.
PMA’s law and practice:
1. Market Trends
2. Establishing a New Company, Early-Stage Financing and Venture Capital Financing of a New Technology Company
3. Initial Public Offering (IPO) as a Liquidity Event
4. Sale as a Liquidity Event (Sale of a Privately Held Venture Capital-Financed Company)
5. Spin-Offs
6. Acquisitions of Public (Exchange-Listed) Technology Companies
7. Overview of Regulatory Requirements
8. Recent Legal Developments
9. Due Diligence/Data Privacy
10. Disclosure
11. Duties of Directors
In-kind contribution for the incorporation of a company
By means of official letter 115 – 077651 dated April 10, 2024, the Superintendence of Corporations explained how to convert into shares the value of the contributions in kind for the incorporation of new companies.
For instance, the shareholders of the company in the process of incorporation may choose between contributing cash or goods. According to Article 98 of the Code of Commerce (C. Co), contributions are defined as the set of tangible and intangible assets that the partners or shareholders deliver for the incorporation of a company. Such contributions may be in cash (Capital), in work (Industry) or in other goods appreciable in money (in kind).
Regarding contributions in kind, the Superintendence of Corporations has clarified that this entity is no longer in charge of approving the appraisal of contributions in kind. This is based on article 132 as well as article 398 of the Code of Commerce, applicable to the SAS by remission of article 45 of Law 1258 of 2008, Decree 2155 of 1999 and Law 222 of 1995.
On the other hand, the value of the contribution in kind, in accordance with Article 126 of the Commercial Code, must be estimated according to its commercial value. In this sense, for new goods, the support of the commercial value will be the electronic invoice of purchase of such goods. These invoices must obviously have been issued in the name of the shareholder who will contribute them to the incorporation of the new company.
Regarding the accounting recognition, the financial reporting standards provide that the initial measurement of equity instruments (shares) other than those arising in a business combination, must be made on the fair value of the cash, or in this particular case, on the resources received or to be received (IFRS 9 Fair Value, paragraph 5.7.5 and Section 22 Liabilities and equity of IFRS for SMEs, paragraph 8, Decree 2420 of 2015, Annexes 1 and 2).
According to the above, the Superintendence of Companies has indicated that the entity being incorporated must record the asset received at its fair value and simultaneously account for the contribution received by the shareholder in the company’s equity.
With this value, the Superintendence has explained that the number of shares to be delivered to the contributor will be the result of dividing the fair value of the asset over the nominal value of the share.
Likewise, Article 319 of the Tax Statute applies the principle of tax neutrality whereby the contribution in kind for the incorporation of a company will not be understood as sale and therefore will not generate taxable income or deductible loss for the contributor.
Also, paragraph 1 of the same article establishes that the value of the contribution for commercial and accounting purposes may differ from the tax cost of the contributed asset.
Consequently, although article 319 requires maintaining the tax cost of the assets and shares to apply tax neutrality, the paragraph provides that, for commercial and accounting purposes, the value of the contribution is the one assigned by the parties, in accordance with the same accounting and commercial rules. Consequently, the tax cost may differ from the value for commercial and accounting purposes of the contributed asset.
Through Opinion No. 286 of April 23, 2024, DIAN has stated that the commercial value of these contributions does not necessarily have to correspond to the value of the fiscal cost to apply the principle of tax neutrality established in article 319 of the E.T., since in paragraph 1 of the same article establishes that the value of the contribution for commercial and accounting purposes may differ from the tax cost of the contributed asset.
Contribution requirements to maintain tax neutrality
Article 319 of the Tax Statute, establishes that the contribution in cash or in kind to national companies will not generate taxable income for these, nor will the contribution be considered as alienation, nor will it give rise to taxable income or deductible loss, for the contributor, provided that the following conditions are met:
- That, as consideration for the contribution, the new company delivers shares that were issued for the purpose of using them for the purpose of its incorporation.
- That in the document formalizing the incorporation it is expressly stated that the cost, that is, the value for which it was declared by the contributor is that of the immediately preceding year, corresponds to the same value for which it is being received. For the purposes of tax depreciation or amortization in the head of the new company, there will be no extensions or reductions in the useful life of the transferred assets, nor modifications to the tax cost base of the depreciation.
- That the Company that receives them, the contributed assets keep, for tax purposes, the same nature of fixed or movable assets that they had for the contributor when the operation was formalized.
- That the parties declare that they are fully subject to the provisions set forth in Article 319 of the E.T.T.
Labor Reform Approved in Second Debate in the House of Representatives
The House of Representatives approved the labor reform bill presented by the National Government with 93 votes in favor and 13 against. The approved bill contains 81 articles, including provisions for increasing remuneration on mandatory rest days from 75% to 100%, to be phased in by 2027; formalizing employment for community mothers; establishing employment contracts for SENA students; and providing paid leave for medical appointments, school commitments, union commissions, or domestic emergencies, and extending paternity leave to up to 4 weeks.
Articles removed include parental leave for same sex adopting couples, increased compensation for dismissal without just cause, and the agricultural contract.
Eight articles were added addressing formalization and employment for cargo and passenger transportation workers, programs for first and last employment, promotion of sustainable work, flexible work environments, among others.
The bill will now proceed to the Seventh Senate Committee for the final two debates.
Advance for Future Capitalizations Must Follow Terms Agreed Between the Company and Interested Shareholders (Superintendency of Companies, Office 220-046662 of 2024)
The Superintendency of Companies issued guidance on the advance operation for future capitalizations, reiterating the process involved in establishing an advance for future capitalizations, which may lead to a statutory reform impacting the company’s share capital.
It noted the need to obtain express authorization from the highest corporate body for this operation, determining whether the advance will be revocable or irrevocable, and defining conditions to uphold the principle of equal treatment among shareholders and the right of preemption, if stipulated in the bylaws.
The Superintendency further highlighted that there is no specific statutory provision governing advances for future capitalizations; only the Basic Accounting Circular regulates how to record the operation, depending on whether it was agreed to be revocable or irrevocable.
If irrevocable, the company must issue the shares to the beneficiaries and record the transaction in equity. If revocable, the company may allocate the resources in accordance with the received authorization, recording the transaction as a loan, which may or may not accrue interest.
It also clarified that the company may not unilaterally change the nature of the advance, as it is bound by the terms of the contract and the authorization from the highest corporate body, with potential contractual and administrative liability implications.
Resolution No. 532 of 2024 UGPP: Establishing a Cost Assumption Scheme for Self-employed Workers and Those Who Enter Contracts
Recently, the Special Administrative Unit of Pension Management and Social Security Contributions (“UGPP” by its initials in Spanish) issued Resolution 532 of 2024, establishing a cost assumption scheme for self-employed workers and those who enter contracts other than personal service provision contracts, involving subcontracting and/or the purchase of supplies or expenses, based on the economic activities listed in the International Standard Industrial Classification (CIIU). This scheme also applies to cases where the economic activity is public motor freight transport by road, as a method to establish the base contribution income (IBC).
To apply the presumed cost coefficient, the obligated party must refer to the section of economic activities generating their monthly gross income during the period they received it and apply the corresponding cost percentage.
If the income comes from multiple economic activities, the corresponding cost percentage for each activity must be applied.
Specifically, for the public motor freight transport sector by road, a general cost presumption scheme was defined for self-employed workers and for employers who have verified social security contributions for the drivers they have employed. They can deduct the cost percentage established in the resolution, based on the range of gross income and the number of drivers.
As an exception, a different cost percentage can be set, provided supporting documents are available and requirements established in Article 107 of the Tax Code are met without exceeding the values included in the income tax return.
This resolution will apply from November 1, 2024.
Ministry of Labor Proposes Regulations for Reporting Major Incidents or Accidents in Classified Facilities
The Ministry of Labor has published a draft resolution to regulate procedures for reporting major incidents and accidents in classified facilities, aligning with international industrial safety standards to promote a safer and more responsible work environment.
The draft specifies that the person responsible for the facility must report any major incident or accident within two hours of occurrence, using the Ministry’s designated digital tool.
The resolution also defines criteria for classifying an event as a major incident, including severe injuries, fatalities, property damage, and significant chemical containment losses.
The responsible party must expand the report as the emergency response concludes and calculate annual process safety metrics, reporting them through the same digital tool.
International Joint Ventures (2013)
