Boletin No. 2. Octubre-Noviembre 2004-Ingles

7/30/2019 Boletin No. 2. Octubre-Noviembre 2004-Ingles

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Credit Card Systems would be submitted to the supervision of

the Colombian Banking Superintendence

A Decree Project seeks to submit the companies that administer low value

payment systems to permanent supervision by the Banking Superintendence.

The Colombian Government is analyzing a decree project, in which the

companies that administer systems of low value payment will be permanently

supervised by the Banking Superintendence. This project is developed by

means of the faculties conceded by Law 795, provided that the project is

previously studied by the Board of Directors of the Bank of the Republic.

This project defines the payment systems as an assemble of politics,

proceedings, rules, agreements, instruments of payment, entities and

technological components (such as equipments, software an communication

systems) that allow and facilitate the transference of funds between the

parties. This is accomplished by means of the reception, processing,

transmission, compensation and/or liquidation of transference and collects

orders.

The project states that the companies that administer systems of low value

payment will have to obtain prior authorization certificates granted by the

Banking Superintendence. These certificates will be issued in accordance to

the proceedings contained in the Finance Organic Statute (EOSF)

Under the mentioned decree project, companies will be obligated, among

others; to (i) create new access criteria, based exclusively on the principle of

equal access equal charge; (ii) to establish nondiscriminatory rates based on

the real costs of the rendered services; and (iii) in accordance with the

parameters set up by the Banking Superintendence, to establish adequate


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proceedings for risk management, including the credit risk, liquidity risk,

operative risk, systemic risk, and the risks related to laundry of money.

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The project establishes a transition period until July 1 , 2005. During thisperiod, companies will have to take the necessary measures to comply with the

new legislation.

We will follow this Project with special attention, since it can bring significant

changes to the entities that administrate payment systems.

Colombian Family Welfare Institutions will receive money directly from the

public

As of October 5th, 2004, the Colombian Chamber of Representatives approved

the Law Project No. 254, by which Family Welfare Institutions will be entitled

to perform financial intermediation within the Colombian national territory, by

means of saving account contracts.

This Project opens a wide range of business opportunities for the mentioned

institutions, urging them to be prepared for the challenges related to this new

legislation.

French Courts take position regarding the independence of the goods of an

th

overseas trust Le mondediary on their October 18 issue published an article

depicting an important decision regarding the treatment of trust in France,

from a fiscal scope.

An unpublished decision which analyzed the fiscal situation of the beneficiary of

a trust in relation to its obligation to pay fortune TAX (IFS), was notified on

May 4, 2004by the appeal court of Nanterre (Le Tribunal de grande instance

de Nanterre)


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By means of French Law there is no recognition of the American trust

institution. Nonetheless, its possible for a person with a fiscal residence in

France, to be beneficiary of a trust fund. In the analyzed case, the taxpayer

had perceived over many years economic dividends from a couple of trust

created in United States. These dividends were regularly declared to the

French Tax Administration in order to pay the Tax over Incomes. After some

time, the Tax Administration came to the conclusion that the taxpayer had not

been including the value of the assets of the trusts, in his ISF declaration form.

This decision was appealed by the taxpayer, before the justice.

The Appeal Court of Nanterre pronounced its verdict in relation to the case

against the Tax Administration declaring that the ISF is only applicable to the

owner of goods or rights with a significant commercial value. The Judge

considered that the Tax Administration did not adduce any proof in order to

demonstrate that the taxpayer had any legal right over the trusts.

In consideration of what was mentioned above, the Appeal Court expressed

that the Administration didnt clearly justify the considerations that supported

its decision to declare the taxpayer responsible for the payment of the ISF.

This is a very important decision, always bearing in mind the fact that the

verdict was not appealed by the Tax Administration.

This decision of The Court illustrates the differences between the French

conception of property and the Anglo-Saxon trust. (These fiduciary techniques

should have been incorporated to the French legislation a decade ago). The

Fiduciary Law project was studied in 1992.

The decision has been strongly criticized because of the natural apprehension

felt by the French fiscal services over the negative consequences over the

introduction of the trust in the French Legal system.


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In the authors opinion, the trust should be incorporated to French Law, as an

answer of the weaknesses of the legislation, and as an advantage in front of

theinternational legal competitors.

Labor Section of the Supreme Court of Justice admits the responsibility

between a trust and its contractors.

In a judicial decision issued past May 10, 2004 (Justice Eduardo Lpez

Villegas), the Supreme Court of Justice declared that a trust fund can be

eventually responsible for the unpaid labor debts of the employees of it

contractors, in accordance with the article 34 of the Colombian Labor Code.

In this important and controversial decision, The Supreme Court expressed

that it was clear from the text of the particular contract that the contractors

acted by delegation of the trust legally represented by the Fiduciary-.

Even though the suit was denied for technical reasons, the Court expressed

that it was possible for the employees, to start lawsuits against the fiduciary

companies, them being the administrators of the trust.

Participating in this issue:

Sergio Rodrguez Azuero, Mara Juliana Navas Bretn, Alejandro Barreto

Moreno, Camilo Gantiva Hidalgo, Julio Csar Quintero Hernndez.

[email protected]

www.rodriguezazuero.com

This bulletin was made by the Editorial Board of Rodrguez-Azuero Asociados S.A. for

an informative and academic value; therefore its content does not constitute legal

advice. The publication of this bulletin is only authorized quoting the source.
mailto:[email protected]:[email protected]:[email protected]:[email protected]://www.rodriguezazuero.com/http://www.rodriguezazuero.com/http://www.rodriguezazuero.com/mailto:[email protected]

Boletin No. 2. Octubre-Noviembre 2004-Ingles

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