The purpose of this article is to review some basic questions regarding the so-called cause for dissolution due to losses, a subject that is recurrent in practice, and which is expected to be the subject of permanent consultation in the coming months and particularly at the beginning of next year.
Now, as is known, the cause of dissolution due to losses is a “special cause” that occurs in certain capital companies, and requires that the highest social body know, or can know, the configuration of the causal based on the financial statements that the administration presents.
Thus, the following question arises: what type of financial statements are required to give way to the dissolution for losses? Are they general purpose financial statements or can they be interim financial statements? Fortunately, the Superintendency of Companies through its official letter 220-171161 of October 16, 2014, in a forceful way said: [T] a determination of the cause for losses must be established with a financial statement at the end of the year according to the court established by the company (…) ”. The foregoing implies that the interim financial statements, as they have the quality of special purpose financial statements, according to article 24 of Decree 2649 of 1993, cannot be used to determine the existence of the aforementioned cause.
Notwithstanding the foregoing, it is highlighted that if a company has several “cuts”, and therefore generates general purpose financial statements periodically, this means that the cause of dissolution due to losses can be configured in periods much shorter than the annual term that is the one that is usually used.
On the other hand, article 458 of the Commercial Code establishes that when losses are verified that lead the company to be in cause of dissolution, administrators must refrain from starting new operations and call the general assembly, under penalty that administrators are jointly and severally liable for any damage that may be caused to shareholders and third parties. Thus, the following question arises: should the administrator comply with the referred obligation based on interim financial statements?
In response to the above question, the Superintendency of Companies has stated its position in official letter 220-30791 of May 18, 1995, ratified by official letter 220-004618 of January 19, 2018, where it indicates that “ the state The ideal financial statement for the corresponding verification in these cases, in principle, is the basic financial statement , classified within those of general purpose, and secondly, that of intermediate purpose due to its nature ”. The previous position is not only confusing if not contradictory, because at the end of the day the financial statement that must be known by the General Assembly of Shareholders, and the one used to determine the cause of dissolution, is the financial statement of general purpose and not its antonym, the special purpose financial statement.
Therefore, it must be considered that compliance with article 458 of the Commercial Code can only be predicated on general purpose financial statements and not intermediate purpose financial statements, since only the first financial statements will give a real and relevant dimension to the situation of society.
By Juan Camilo Varón , senior associate of the Practice Group Corporate, Mergers & amp; Acquisitions .