Tuesday, March 7, 2023
All companies, regardless of their size, operation or the number of partners, must register their books in the commercial registry kept by the Chamber of Commerce of the registered office and keep their records up to date. We refer specifically in this article to the minute books of the general shareholders’ meeting or partners’ meeting. Once the books are registered, the Superintendence of Companies has maintained that within the companies it is the responsibility of the administrators to keep them safe and adequately update and preserve them. In Concept 220-096461, the aforementioned entity stated that “(…) the administrator has custody of the business books in which all the company’s activity is recorded, and by virtue of this he has the duty to keep them in his possession and be attentive to its completion, being therefore responsible to the partners, the social entity and third parties for the integrity of the same, that is, for the completeness and veracity of the information they contain.
Thus, in the event of the loss of any of its minute books, the company must carry out the following actions (Annex 6, Art. 18, Decree 2270 of 2019): (i) Report the loss or misplacement to the competent authorities, in principle , the National Police and the complaint can be made virtually. If the administration comes to have indications that a crime has been committed, the complaint must be filed with the Office of the Attorney General of the Nation. (ii) Reconstruct the records of the lost book, within six (6) months following its loss or misplacement. (iii) Use all available means, information in the files or even go to the information in the hands and files of third parties, to complete the reconstruction in the most complete way possible. The company must have all this information and documentation available before any exhibition of books that any surveillance entity might carry out, if that were the case.
It must be taken into account that the book in which the reconstruction is carried out must be registered with the Chamber of Commerce of the registered office. The request must be accompanied by the complaint for the loss of the previous book, including its number and registration information. This record is important both to comply with the legal obligation to have the books registered and to give fidelity to the reconstruction information that is included therein. Once the new book is duly registered, the company’s administration must carry out the most diligent efforts to obtain copies of the minutes that were printed and signed in the lost book. This mission involves searching its internal file and that of third parties such as advisors, accountants, tax auditors, banks, notaries, State entities, Chambers of Commerce or any other entity or person.
The reconstruction must describe in detail the work carried out. Thus, when printing or reproducing copies of the recovered minutes in the book, a note must be left indicating the reason for the replacement and, for example, if it is an image taken from the version registered with the Chamber of Commerce, the corresponding reference. Likewise, the number of minutes that cannot be recovered should be noted.
