COLOMBIA Trends and Developments Contributed by: Gabriela Mancero, Daniel Peña, Maria Fernanda González and Andrea Sánchez Gallardo, Peña Mancero Abogados
for through the delivery of an intangible asset. The tax obligations associated with income tax will be those derived from the execution of the exchange contract. Carrying out the exchange will affect the assets of the party delivering the crypto-asset; the payment of the price will gen- erate an equity decrease due to its disposal. On the other hand, depending on the real estate valuation, the seller may increase their assets by carrying out the exchange, or equate the equity value to that of the crypto-asset delivered. Consequently, the party delivering the crypto- asset must determine the equity value of said asset, and analyse whether, on the occasion of the exchange, an income for the difference between the tax cost of the asset and the value of its disposal was obtained. Payment for the property through crypto-assets may, in the mind of the property seller, confer an increase in equity if the equity value of the crypto-asset is higher than that of the real estate. The capital increase must be reported in that party’s accounts and income tax return. Similarly, the real estate seller must determine the equity value of said property and verify whether, on the occasion of the exchange, an income relating to the difference between the fiscal cost of the real estate and the value of the sale was obtained. The parties must comply with the provisions of the Colombian tax stat- ute for the purpose of determining the minimum prices for the sale of the goods subject to the exchange. As in other jurisdictions, Colombia is no excep- tion with respect to crypto-assets being used in criminal activities. Cases of criminal crypto- asset use, fraud and the use of crypto-assets for payments related to computer attacks and
ransomware – as well as for payments related to extortion – are becoming more frequent. Crypto-assets can also be used as instruments for money laundering (ML), terrorist financing and other criminal activities, in view of which the administrators of companies that participate in the crypto-asset market must: • maximise due diligence efforts towards acquiring knowledge of the goals of those associated with the operation (including asso- ciates, employees, clients, contractors and suppliers, and their ultimate beneficiaries), with a view to preventing ML and terrorist financing; and • exercise the same diligence as a busi- nessperson in good faith to prevent asset laundering, public money from being illegally collected or any other damage to public or private interests occurring via a company. Those who carry out operations with crypto- assets should decide in a responsible, conscious and autonomous manner, at their own expense and risk, to bear the possible losses that can be incurred by transacting in this type of asset. The difficulty in clearly defining crypto-assets has been exploited by criminals to deceive investors, and to carry out illegal fund collec- tions and Ponzi schemes, using business mod- els and strategies that can only be implemented by financial entities authorised by the Colombian government. The growth in the crypto-asset market, in par- ticular cryptocurrencies, depends on the ability of crypto-assets being used in many activities. Thus, while there is need for a clear regulatory framework that allows the measurement of risks, it is also important that absolute prohibitions or regulatory disincentives are abolished.
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