Decree Law 560 of April 15, 2020, by means of which the National Government adopted special transitory measures within the framework of the State of Social, Economic and Ecological Emergency, created, as the Superintendency of Companies has indicated, an ecosystem of business recovery that seeks to facilitate the preservation of the company and facilitate the management of public and economic order in our country.
This is how the aforementioned Decree Law established that for a period of twenty-four (24) months from April 16, 2020 and until April 16, 2022, the configuration of the cause for dissolution due to losses provided for in article 457 of the Commercial Code for public limited companies and in article 35 of Law 1258 of 2008 for simplified stock companies. Subsequently, through Decree Law 772 of June 3, 2020, this temporary suspension measure was extended to the other corporate types, adding that the term to enervate it established in article 24 of Law 1429 of 2010, was also suspended until on April 16, 2022.
In accordance with the foregoing, if a company in its financial statements as of December 31, 2019, 2020 and 2021 reflect that there are losses that reduce the company’s equity to below fifty percent of the subscribed capital, it may suspend the configuration of the grounds for dissolution for losses until April 16, 2022.
After said date, if the company has not enervated the cause for dissolution in which it was found, it must declare it through the highest corporate body in order to start the accounting of the term established in the law for its enervation.
In this way, the National Government intends to reduce in some way the negative impacts and effects that the current State of Emergency has caused to the financial situation of companies in Colombia, which affect issues related to the eventual obligation of dissolution of companies , for purposes of considering the current financial situation as an exceptional situation.
With the suspension of twenty-four (24) months, it could be pointed out that we are on par with some of the measures adopted in Spain, a country that, among other matters, established that only for the purposes of determining the existence of the grounds for dissolution due to losses , the losses presented in the fiscal year of 2020 will not be taken into consideration.
In conclusion, with the current figures it is easy to predict that the current health crisis will have a significant negative impact on the balance sheets of companies, which is why this type of measure aims to consider this negative financial situation as something exceptional and prevent that the companies incur causes of dissolution due to losses leading them to an eventual liquidation.
By Mónica Cuestas Guzmán , senior associate of the Practice Group Corporate, Mergers & amp; Acquisitions of Gómez-Pinzón Abogados.