María Paula Rodríguez Ortegón, Senior Lawyer of the RC&M SAS group in Colombia, shared with Cointelegraph en Español a summary of the current panorama of crypto assets in Colombia, a country that, according to her, like many other Latin American states, does not have clear and express regulations that enable the use of crypto assets within its legal system. Hence, currently the current legal framework and legal figures of the Civil Code and Commercial Codewhich are far from the very nature and multidimensional scope of cryptocurrencies.
According to Rodríguez, within the Colombian national framework, The Arenera or sandbox of the Financial Superintendence of Colombia (SFC) is in force in terms of crypto assets, and that based on formalized alliances between entities supervised by this authority and exchanges, it is expected that for this year the law will be issued that precisely determines not only the nature of cryptocurrencies, but also the scope of their transactionality and disposition, as well as the requirements to be providers of virtual asset services or exchange platforms and other possible qualities within an environment of acquisition and use of cryptocurrencies.
“In this way and based on various pronouncements made by the different authorities of the national order through concepts and circulars; which are formal and primary sources of law in Colombia, hence they have full regulatory effects; they granted cryptocurrencies the nature of fungible object of transaction, regulated this scope from the definition consecrated within article 663 of the Colombian Civil Code”Rodriguez commented.
“Under this premise, the Bank of the Republic of Colombia (BanRep) and the Financial Superintendence of Colombia (SFC), argued that despite this quality, they cannot be recognized as a legal tender means of payment, nor are they part of the regime. exchange rate in the country, bringing as an immediate consequence, the impossibility of holding liberatory power that extinguishes obligations, as occurs with the Colombian peso and in the same way, in the absence of being considered currencies, cryptocurrencies could not be implemented on the one hand, for the payment or defrayment of operations covered by the exchange regime, or be operated by market intermediation companies. The latter entity recognizing that cryptocurrencies, their operations and actors involved in the execution of any type of activity carried out directly or indirectly with the same, is not subject to their inspection, surveillance and control.he added.
Under this understanding, Rodríguez mentioned, cryptocurrencies would not constitute money or an instrument of value, and as a result of this premise, they do not comply with the possibility of extinguishing obligations, nor can they be used in the financial or securities market.but this does not prevent us from concluding that any operation, activity or possession of crypto assets represents an illicit or prohibited action, but rather, on the contrary, it is feasible, based on its condition as a fungible asset, to be the object of typical operations such as the sale, purchase, mutual and dation in payment, regulated by the general Colombian civil and commercial regulations, as well as the constitutional principles that are outlined below.
“From a constitutional perspective, the principles of economic freedom and legality generate the viable legal framework required for the deployment of operations, use and possession of cryptocurrencies, enshrined in articles 6 and 333 of the Political Constitution, maxims that govern conduct of individuals, who can perform or deploy all those acts that are not expressly prohibited, thus confirming the use of cryptocurrencies in Colombia “Rodriguez said.
“As long as there is no express and binding prohibition that prohibits its use, acquisition or possession, operations with cryptocurrencies are legal, existing and valid”he detailed.
Having said this, Rodríguez comments that the foregoing is ratified by various authorities of the national order, among them the Directorate of National Taxes and Customs (DIAN), the Superintendence of Society and the Technical Council of Public Accounting in Colombia. “In relation to the tax and customs authority -DIAN- established in various trades and concepts that cryptocurrencies are a digital asset, thus resorting to their nature of immaterial or intangible property, which is susceptible to valuation and therefore can be part of the heritage. and as a consequence meditates, lead to the obtaining of presumptive income”he pointed.
Superintendency of Companies
Likewise, Rodriguez has also pointed out to the Superintendency of Companieswhich for its part, pointed out on the one hand, that cryptocurrencies are not prohibited and expresses through concept, the feasibility of making contributions in kind of crypto assets to commercial companiesas well as the obligation from the year 2020 to apply the system of self-control and comprehensive risk management of ML/TF/FPWMD related to operations and services with virtual assets, recognizing their use within the Colombian legal system.
“The obligation to implement SAGRILAFT is materialized through a risk measurement and evaluation based on due diligence procedures, in addition to having a compliance officer and making periodic reports to the Financial Information and Analysis Unit (UIAF) among others. burdens and obligations Rodriguez explained.
Financial Information and Analysis Unit (UIAF)
On the other hand, regarding the Financial Information and Analysis Unit (UIAF), Rodríquez says that this entity regulated this matter in a timely manner from an external circular, pointing out that the report of operations not only covers those classified as suspicious, you reject or attempted within the activities that involve virtual assets, but also the totality of general operations deployed and active, inactive or unlinked clients of the platform, provided that they are framed within the amounts also indicated by this entity.
At this point, Rodríguez comments, it is possible to show that although there is no express rule that so far regulates cryptoactives in a clear and specific way. “There are multiple formal pronouncements of the main entities involved at the national level, which recognize the operations around its use, transactionality, acquisition, possession and holding, so much so that tax burdens, administration obligations, monitoring and system of self-control of risks, as well as the periodic report related to its operations and linked users”said.
“Hence, there would be no support whatsoever to allege its illegality or prohibition within the Colombian legal and regulatory framework, for which both the providers of virtual asset services, as well as the users or persons are fully authorized to deploy any of the activities that involve them, until there is a legal framework that limits or imposes additional or differentiated charges to those already existing.Rodriguez noted.
Finally, Rodriguez pointed out that it is expected for the current year 2022, the entry into execution of cash-in and cash-out operations within the controlled space or sandbox of the Financial Superintendence of Colombia (SFC) where there are currently alliances such as that of Binance-Davivienda, achieving the proposed purposes, which is none other than joint learning between the actors of the cryptoactive ecosystem, the supervised financial entities and the regulator itself, which contributes to generating a safe environment, viable and that guarantees a legal security framework for its participants in environments of technological and financial innovation based on the great experience it has at a global level and its perception of the market, and the ecosystem of cryptocurrencies.
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