The question of whether a fiduciary company can face tax sanctions for failures related to an autonomous asset (PA) no longer under its administration has gained legal significance when such assets enter judicial liquidation.
Legal Framework and Liquidation Process
Law 1116 of 2006 permits autonomous assets tied to business activities to undergo judicial liquidation under specific legal conditions. Upon admission to this process, the original administrator is relieved of duties, and a liquidator assumes control of the asset’s estate, a practice recognized by the Companies Registry in Office 220-135893 of 2023.
However, tax regulations diverge from this administrative shift. Article 102 of the Tax Code (E.T.) assigns fiduciary companies formal obligations and certain sanctionable liabilities to autonomous assets, regardless of their liquidation status. This creates a disconnect when the PA enters liquidation, as the fiduciary loses both management control and access to critical information needed to fulfill these duties, yet remains the legally designated responsible party before tax authorities.
Information and Reporting Challenges
The core issue emerges in reporting obligations. Tax systems link fiduciary information to the fiduciary’s tax identification number (NIT), requiring electronic signatures from their legal representatives. In practice, the required data resides with the liquidator, who manages the PA but lacks tools to independently report this information relative to the fiduciary overseeing other assets.
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This creates a paradox: the fiduciary cannot fulfill reporting requirements without access to the PA’s data, while the liquidator possesses the information but lacks the mechanisms to comply with obligations tied to the fiduciary’s responsibilities. The result risks sanctions against a party already discharged from administrative roles due to insolvency proceedings.
Tax Authority Position on Fiduciary Liability
The 2015 Administrative Resolution 1074 maintains the fiduciary as the administrator of the PA regarding formal obligations. Tax authorities might use this to argue that certain responsibilities still exist. However, keeping this situation implies that a fiduciary could be held responsible for non-compliance despite lacking the material or legal capacity to address them.
Legal Precedents and Regulatory Gaps
The 2020 Council of State ruling SUJ-4-001 established a precedent requiring proof of culpability for tax sanctions. Under this standard, the loss of administrative control and information access due to judicial intervention could shield fiduciaries from liability.
The gap in legal representation arises because Article 572 of the E.T. designates liquidators as representatives for liquidating companies but remains silent on autonomous assets. This leaves fiduciaries exposed to sanctions for obligations they cannot practically address. Resolving this requires either amending Article 572 to clarify PA liquidation roles or developing operational mechanisms to temporarily assign tax duties to liquidators. Without such changes, fiduciaries remain liable for violations they are structurally unable to remedy.
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