As I explained in a previous article in the Tico Times corporations are subject to a corporation tax which has been regulated by three different laws, which are law 9024, law 9428 and law 10220.
Corporations that owe back taxes and have been dissolved because of those taxes can request a forgiveness of dissolution so their company can be reinstated. The first law was law No. 9024 which started on December 12th, 2011.
This law created the corporation tax for all mercantile corporations (such as: sociedades anónimas, sociedades de responsabilidad limitada and others). After this, the constitutionality of articles (in english sections) 1, 3 and 5 of this law was questioned before the constitutional court and on January 28th, 2015 the Constitutional Court decided these articles of Law No. 9024 were indeed unconstitutional but the Court delayed the effects until 2016.
This had several technical legal consequences which would be too extensive to explain here.
Law 9428 is dated March 21st, 2017 and it came into effect in September of that year. This law is a continuation of the previous law (9024), it repeals Law No. 9024 and it transfers the collection of the corporation tax from the National Registry to the Treasury Department.
Therefore, some corporations will have two sets of taxes that are unpaid. One set will be from 2011 to 2016 and the other set will be from 2017 to 2021. The first set is a tax that must be paid to the National Registry and the second set must be paid to the Treasury Department.
This Law, No. 9428 was partially reformed by another law which is No. 10220, dated May 5th, 2022 and went into effect on the 24th of May. This is a very short law with only one section and establishes the specific procedure for requesting the forgiveness of dissolution and reinstatement.
This law establishes that those corporations which pay the taxes due from Law No. 9024 which are 2011 to 2015 can then pay the taxes owed from 2016 to 2021 without having to pay interests or fines. It further establishes that all taxes must be paid by December 15th and that the formal request for reinstatement must be presented to the National Registry by January 15th, 2023.
In order to reinstate a corporation, the interested parties must comply with a few requirements.
In the first place, corporation owners need to understand they will possibly have two sets of taxes, those from 2011 to 2016 (which have probably already been paid by most corporations) and those from 2017 to 2021 which amounts to about $505.00 for all 5 years per corporation, depending on the exchange rate.
The amount of taxes from 2011 to 2016 can vary anywhere from $627.00 to $910.00 approximately for all six years per corporation. These calculations or approximations can be more or less, depending on each corporation´s situation.
To pay these taxes without fines and interest they must have been paid by December 15th, 2022, which will be tomorrow. This is important because it is possible or at least we hope it will be, that the government will extend this term of forgiveness.
The taxes for Law No. 9024 must be made in BANCO DE COSTA RICA. The taxes for Law No. 9028 can be made in any other bank that has the capability of paying these taxes.
One very important point is that to pay the corporation tax for law No. 9028 the corporation must be registered as a corporate taxpayer in the Treasury Department and that registration has to be requested. Once all the taxes are paid, including but not limited to:
- Caja Costarricense de Seguro Social (social security)
- Education and Culture Tax Stamp
- FODESAF and other lesser taxes
Then the stock owners which represent at least 51% of the corporation stock must appear before a Costa Rica Public Notary (which must be a lawyer) and formally request the reinstatement of the corporation and expressly state that this corporation has not gone through a process of liquidation.
Corporations that have been liquidated cannot be reinstated. The company shareholders must sign an edict to be published in the National Gazette in which the reinstatement request is advertised.
If the taxes are paid after December 15th, 2022 or if the request is made after January 15th, 2023, then this reinstatement procedure fails and has no effect and the documents presented to the Registry will be refused.
That said and as a purely personal opinion, it is possible that the government would want to extend this grace period since there are quite a few people in this situation, it makes good business sense to extend it and there was a period of time when the Treasury platform was not available.
Therefore, people that did not have time to prepare for this December deadline could think about preparing for another possible extension, although there is no certainty that the government will extend this grace period.
There is an important issue that has no clear solution yet and one with which a few of my clients are faced. That is the case of corporations that owe taxes from the years 2011 to 2016. The first question is whether one can argue the statute of limitations against those tax years.
In principle, the statute of limitations on taxes is 4 years (article [section] 51 of the code of tax laws and procedures) but that term extends to 10 years if the taxpayer is not registered or has filed fraudulent statements.
Many experts believe that the statute of limitations DOES NOT APPLY because Law No. 10220 is a specific law and supersedes the tax code in this case. In my opinion the statute of limitations does apply because it is a general law and it benefits the taxpayer. Nevertheless, we do not have any relevant court decisions to guide us yet.
Therefore, depending on each situation, a corporation can have corporation taxes from 2011 to 2016 and from 2017 to 2021, in addition to all the other formal requirements indicated.
About the Author
*** Lic. Jorge Montero B. was educated in the U.S.A. and in Costa Rica. He holds various specialties and master’s degrees in Criminal, Commercial, Environmental and Agrarian Law from the University of Costa Rica and has over 30 years of litigation, contract and counsel experience. Email: acmbalaw@gmail.com; Tel: (506)- 8384- 2246; Whatsapp: (506) 8384- 2246
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