Cryptoassets; a new form of capital contribution

In recent years, the world has developed advanced technologies which impact the way we interact and transact. It is in this scenario that the concept of 'crypto assets' has gained more attention every day, as it becomes a widely accepted payment mechanism despite its lack of regulation and high volatility. Considering that crypto assets are part of the current debate regarding whether they are a safe and reliable substitute for money, it is important to analyze the impact that such instruments may have in all areas of law, including corporate. 

Even though Colombian legislation has not tackled crypto assets, different government authorities, including the Superintendence of Finance, the Central National Bank, the Superintendence of Companies, and the Tax Authority have provided that crypto assets are not considered legal currency, cash or securities. Therefore, these organizations have categorized them as intangible assets 1 Superintendency Financiera of Colombia ("CFS"), Circular Letter March 29, 2014; SFC Circular Letter June 52, 2017; Bank of the Republic, Concept No. C21-130537 of September 27, 2021; Superintendancy of Societies ("SuperSocieties"), Office No. 220-037681 of May 2, 2019; SuperSociedades Oficio No. 100237890 of December14, 2020 and DIAN Oficios No. 047 (909487) of September 9, 2021 which reiterates what was said in the 020733 office of August 8, 2018 and 0232 (01303) of February 2, 2021 which ratifies Offices 020436 August 2, 2017 and Office 000400 of November 14, 2018. The entities responsible for surveillance and control also have been addressing the issue by accepting for this the definition given to these assets by the Organisation for Economic Co-operation and Development (OCDE), that is, they understand them as “aassets that are guarded and transferred in digital systems, which use advanced cryptographic technology to ensure the integrity of the system". . 

Considering that Colombian corporate law provides that capital contributions to a company may be in cash, in kind or in work, it is relevant to discuss whether if it is possible to accept crypto assets as capital contributions to a company and, if so, what type of contributions would they be.

In recent years, the Superintendence of Companies addressed this issue on several legal opinions which show the evolution of the government authorities’ position 2 Offices 220-169543 of December 11, 2019, 220-196196 of September 30, 2020 and 100-237890 of December 14, 2020 of the Superintendency of Companies . 

In the 220-169543 legal opinion of December 11, 2019 the Superintendence of Companies cites the Superintendence of Finance on its legal opinion No. 29 of March 26, 2014 regarding the risks involved in operations carried out with crypto assets which do not have physical assets that support them. However, the Superintendence of Companies provided that "companies have the right to conduct and value their business as they see fit 3 Superintendence of Companies. Office No. 220-169543 (December 11, 2019). Affair: PURCHASE OF DIGITAL CRYPTOCURRENCY FILES. {Online}. Available in: https://www.supersociedades.gov.co/nuestra_entidad/normatividad/normatividad_conceptos_juridicos/OFICIO_220-169543_DE_2019.pdf ".  In addition, the Superintendence of Companies categorized crypto assets as intangible assets but did not confirm or deny the possibility to contribute them to the capital of a company.

Moving forward on its opinion on this matter, the Superintendence of Companies through its legal opinion 220-196196 OF SEPTEMBER 30, 2020, addressed the issue by denying the possibility of contributing crypto assets to a company’s capital. This entity based its opinion on the fact that by then crypto assets were not assets validly recognized under Colombian law, stating that "there are opinions and warnings made by the Superintendence of Finance, the Colombian Central Bank and the UIAF, on the fact that crypto assets are not recognized as currency, neither by the legislator nor by the corresponding monetary authority. The use of virtual currencies as a means of compliance with foreign exchange operations is not authorized." 4 Superintendence of Companies. Official Letter 220-196196 (SEPTEMBER 30, 2020) Subject: CRYPTO-ASSETS CANNOT BE THE SUBJECT OF CONTRIBUTIONS IN COMPANIES. Available in: https://www.supersociedades.gov.co/nuestra_entidad/normatividad/normatividad_conceptos_juridicos/OFICIO_220-196196_DE_2020.pdf   Thus, the Superintendence of Companies concluded that, according to current regulations, it is not possible to contribute crypto assets to the capital of a company since its use is not allowed in Colombia. 

Nonetheless, the Superintendence of Companies changed its position through its legal opinion 100-237890 OF DECEMBER 14, 2020, where it generally referred to the use of crypto assets in the market, the effects that they may have on the exchange market, and the risk in the use of crypto assets when facing problems such as money laundering and financing of terrorism. In this legal opinion, the Superintendence changed its position by allowing the contribution of crypto assents as contributions in kind, provided the criteria of recognition of inventories is met, the entire regulation of contributions in kind is observed and the shareholders approve their valuation in accordance with Colombian law. Furthermore, it insists that, even though they can be contributions in kind, crypto assets cannot be considered currency, and that when contributed in kind the company’s directors have the duty to make sure they are valued correctly and that they were not acquired with illegal funds.

After analyzing the Superintendence’s opinion over time, even though the risks of using crypto assets in commercial activities are undeniable, their popularity is rising and becoming a common payment method in businesses. Hence, it is good that government surveillance and controlling agencies address this issue and start tackling the problem to ensure legal compliance.

Still, one of the biggest challenges that arise with the new position of the Superintendence of Companies will be determining the value of an asset which has such a high volatility. Even if the directors of the company fulfil the role of diligence that the Superintendence imposed, the unpredictability of its price may have a strong impact on any company. This challenge will be faced by the shareholders when valuing the crypto assets, considering the small regulatory framework they must work with. For now, shareholders must comply with the criteria provided by the Superintendence of Companies, assuming the risk of being jointly liable to third parties in case of an incorrect valuation under article 135 of the Commercial Code.

To conclude, a wider doctrinal and jurisprudential approach to the contribution of crypto assets to companies is necessary due to their unstable price. The status quo implies great risk for shareholders who will be liable in case they fail to provide an accurate valuation. Accordingly, there is a need for clear valuation methods for these assets which mitigate the risks for shareholders, directors and third parties.