Month: July 2021

Recently, the National Direction of Taxes and Customs (“DIAN”) issued its Opinion (“Concepto”) 905913 2021 in response to a query seeking to determine whether a citizen who intends to import merchandise for commercial purposes should update their status in the Unique Tax Registry (“RUT”).

The DIAN confirmed that those individuals or entities that intend to import merchandise for commercial purposes must have the status of importers in the RUT. This status allows for correct tax calculations and the inclusion of fiscal benefits established in law.  An example of such benefits is found in Article 485 of the Tax Statute which establishes that taxes paid on the importation of goods are discountable taxes. Therefore, the status of importer must be set in the RUT before initiating commercial activities, if the individual or entity already have the RUT, they must make the corresponding modification and request the cancellation of the status they previously had, if applicable.

The rule about obtaining the status of importer in the RUT has some exceptions established in Article 1.6.1.2.6. of the Unique Decree on Tax Matters. As such, the following persons are not obliged to have the status of importers: “Non-resident foreigners, diplomats, diplomatic missions, consular missions and technical missions accredited in Colombia, non-resident international transporters, individuals receiving or sending goods as postal traffic and urgent shipments, except when used for the import and / or export of commercial shipments”.

If you require help updating or modifying your RUT, BéndiksenLaw can help you.

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The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents came into force in 1961 and created a vehicle to grant legal validity to documents that were issued in one country and need to be reputed valid in a different country. This vehicle is the apostille and it seeks to certify that the signature on a foreign document is from a public servant in exercise of his duties, and that the signature is authentic.

The apostille is now extremely relevant due to the high degree of globalization. Concretely, in the possibility for companies and individuals to carry out legal transactions in different parts of the world and, therefore, the need that documents be reputed valid abroad. However, it must be acknowledged that the apostille represents additional costs and legal procedures that can affect the dynamics and agility of businesses. Therefore, the Financial Superintendence issued its Authoritative Document (“Circular”) N° 44 reminding the entities under its vigilance to abstain from requesting the apostille for foreign documents that have been recognized or authenticated by a Colombian consul. This, taking into consideration that due to the Vienna Convention of Consular Relations, Colombian consuls act as notaries abroad, therefore the documents they sign have legal force in Colombia without the need of further legalization. Also, trough Law 455 of 1998 the government eliminated the apostille requirement for documents sign by a diplomatic agent and/or consul.

The Superintendence issued this reminder to pursue a “positive effect in the experience of financial customers accessing and using financial products and services” by reducing the necessary paperwork when those customers come from abroad. Likewise, the Superintendence also encouraged the entities under its vigilance to abstain from requesting original documents that were recognized or issued by Colombian consuls.

In BéndiksenLaw we can help file legal paperwork that requires foreign documents in the quickest way possible.

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Publicity is a crucial tool for businesses and companies that are sellers and/or providers of goods and services. With it, businesses and companies can display their offers to consumers, and convince them to acquire their products. However, publicity can turn into a double-edged sword if, during its planning, a legal approach is not taken into consideration.

On July 8, 2021, The Superintendence of Industry and Commerce (“SIC”), penalized American School Way with a fine of $ 181.705.200 colombian pesos for their publicity adverts and information contained in their web page. The millionaire fine was due to non-compliance with the norms established on the Consumer Rights Statute, more specifically, of articles 3, 23 and 33.

Article 3 contains the rights and duties of consumers, among which are the right to obtain clear, truthful, and sufficient information about the offered products. Article 23 refers to the minimum information that must be presented by suppliers and/or producers when advertising their products. If the minimum information is not provided, they will be held responsible for all damages caused to consumers caused by the lack of information.

In its investigation, the SIC determined that American School Way was not complying with its obligation of providing clear and truthful information by omitting from its “Terms and Conditions of the Education Services Agreement” and its “Enrollment Rulebook” information relative to the benefits for the subscribers of their programs. Additionally, the SIC found that the information provided through the American School Way website relating the terms to request a change of campus was not sufficient for consumers.

Lastly, Article 33 of the Consumer Rights Statute refers to the obligation for promotional adverts and offers to include information on the conditions of how and when consumers can access the offered benefits. In this case, American School Way neglected to inform in its “Black Friday” advertisement the terms and conditions to access the offered incentives.

The infringement of the rules contained in the mentioned statute led to American School Way being penalized with a millionaire fine imposed by the authorities, which could have been avoided with the correct counsel. BéndiksenLaw is qualified to bring a legal approach to the marketing campaigns of our clients, where we can determine if the adverts and information comply with the requirements established by the Consumer Rights Statute, and other important regulations, to avoid penalties or difficulties with the authorities.

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E-commerce has gradually entered people’s everyday life. Now, it is used daily by millions of individuals to satisfy multiple needs. This way of doing business is highly regulated to ensure the rights and duties of the parties who intervene in this process. If your company is thinking about operating via e-commerce, it is important to understand the obligations derived from it, according to the adopted business model.

In this vein, the Superintendence of Industry and Commerce differentiates between two business models for e-commerce:

1. Contact portals: they consist of electronic platforms that enable direct contact between sellers and buyers. Those who operate under this model are mere intermediaries and do not have control over the quality, or any other aspect, of the goods and/or services offered by the sellers. Therefore, they do not have any responsibility related to the purchase executed due to their intermediation. The only obligation for these portals consists of providing the necessary information about the sellers, listed in the contact portal, to buyers.
2. E-commerce platforms: these platforms are not limited to serving as a bridge between buyers and sellers. On the contrary, they are a party in the commercial relationship since these platforms generate revenue through: sales commissions, the number of transactions from buyers and/or providing their own payment services for consumers, among others, which means that these platforms have an active role in commercial transactions.

By being considered another party in commercial relationships, e-commerce platforms have certain obligations towards consumers, which are:

• Providing truthful, clear, and up-to-date information to consumers about the offered products and/or services.
• Issue a purchase receipt that contains a description of the product and information regarding its delivery.
• Provide efficient mechanisms for consumers to file their petitions, complaints, or claims and to follow up on these matters.
• Answer directly to customers for any inconvenience or defects of the acquired products, and/or for misleading advertisements.

If you are thinking about implementing one of these business models, BéndiksenLaw can advise you.

Contact us for more information.