Published on May 20, 2026
The Superintendence of Companies, in Official Opinion No. 220-253814 dated March 24, 2026, has stated that the broad contractual flexibility that characterizes the Simplified Stock Company (S.A.S.) under Law 1258 of 2008 is not absolute in matters concerning the distribution of profits, as it is limited by mandatory legal provisions aimed at protecting the integrity of the company’s share capital.
The entity indicated that, although Article 38 of Law 1258 of 2008 excluded S.A.S. companies from the restrictions contained in Articles 155 and 454 of the Colombian Commercial Code (relating to qualified majorities and increases in the mandatory profit distribution percentage), such exclusion did not extend to the rule established in Article 151 of the same Code. Therefore, Article 151 of the Colombian Commercial Code fully applies to S.A.S. companies, which implies the prohibition of distributing profits while losses from prior fiscal years affecting the share capital have not been offset.
It is noted that this restriction responds to a fundamental principle of corporate law, according to which the company’s assets constitute the general guarantee of creditors, and distributing dividends while accumulated losses exist weakens such guarantee. Consequently, profit distribution is only permissible when supported by real and reliable financial statements prepared in accordance with generally accepted accounting principles, once the integrity of the share capital has been restored.
Additionally, the Superintendence clarified that it is not legally permissible to create statutory or occasional reserves (for example, for future investments) charged against the profits of the fiscal year if the share capital is affected by losses. Under the interpretation of Articles 151 and 451 of the Colombian Commercial Code (the latter being supplementarily applicable to S.A.S. companies), reserves may only arise from net profits, which legally exist only once the condition of offsetting negative results from previous fiscal years has been fulfilled.
In conclusion, the legal order of priority requires that the positive result of the fiscal year be applied directly to the restoration of the share capital affected by accumulated losses.
Only after this stage has been completed may resources be allocated to the creation of new reserves or to the payment of dividends to shareholders.
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