Ecuador: Renowned Brands in the Process of Recognition

Foto de Andrea Miño, asociada de CorralRosales + foto de un edificio + Logo de CorralRosales

Notorious marks are those well-known in the specific sector of the public for which said products, services, or activities are intended, and are used to identify and protect such brands. Renowned brands are widely known by the general public.

Both notorious marks and renowned brands must maintain high commercial traffic to obtain the fame and prestige that characterize them, and this requires a large investment of time, resources, and publicity by their owners.

The concept of a renowned brand is not regulated in Decision 486 of the Andean Community; in a preliminary interpretation, its Court of Justice recognized renowned brands to be those that are known by the general public, outside of merely the relevant sector. As a result, such brands completely break with the principles of registration, territoriality, and specialty, protecting them over all products or services, as opposed to a notorious mark.

The Andean Community Court of Justice has referred to the concept of a renowned brand for several years; and in Preliminary Interpretation 01-IP-87, it analyzed renowned brands, indicating the parameters of its knowledge: “[…] the above-mentioned renowned brand must be known by different groups of consumers in different markets, and not only within a particular group, as is the case with notorious marks. Therefore, it can be deduced that every renowned brand is notorious, but not every notorious mark is a renowned brand, as the classification of the latter is more demanding”[1]

In Interpretation 41-IP-98, the Court recognizes renowned brands, connecting it to fame, prestige, and goodwill, clearly differentiating it from a notorious mark: “Similarly, “through means of the regulations in question, they have been granted characteristics foreign to their nature and typical of renowned or very well-known brands, by extending their protection to all classes, including to denote different products or services.”[2]

In its recent case law, the Court exemplifies trademarks that, due to their positioning and global notoriety, are recognized as renowned brands, as follows: “Renowned brands (for example: Coca Cola, Toyota, Facebook, Google, etc.) are known by practically almost the entire general public, by different types of consumer segments and suppliers, including those who do not consume, manufacture, or market the product or service identified with the renowned brand.”[3]

Likewise, it emphasizes that, given its nature, a renowned brand does not need to be proven: “Notoriety must be proven by the party alleging it, in accordance with Article 228 of Decision 486. Meanwhile, renowned brands do not need to be proven, since under the general theory of process, this is called a “notorious fact.” Here, “notorious facts” are known ex officio and do not require evidentiary activity (notoria non egent probatione), so do not require evidence”[4]

Over the last thirty years, in its preliminary interpretations, the Court has differentiated renowned brands from notorious marks, thus establishing the foundations for a possible regulation of this type of brand within the Andean Community. “Renowned brands, meanwhile, are not regulated by Decision 486, but rather, due to their nature, receive special protection in the four member countries.”[5]

Under this line of case law, in recent resolutions, the Collegiate Body of Intellectual Rights has ratified the character of renowned or very well-known brands that, due to their prestige and global knowledge, deserve the special protection that case law and doctrine grant them to protect their value from attempted misuse by third parties in a clear unfair use of said character. This also helps to protect the rights of consumers.

In procedures in which third parties tried to make use of the very well-known UBER and MAC brands, the Ecuadorian office confirmed their wide recognition by the general public, as well as the reinforced protection that must be given to them, establishing: the UBER brand is one recognized among the population, not only by the relevant sector of consumers (users of the digital application). By accession, this type of brand is protected not only from the risk of confusion and association, but also from the risk of dilution and unfair use of its prestige”[6]

Similarly, given the misappropriation of the trade name MAC ACCES BY MOBILE STORE MAS LOGOTIPO, it determined the risk of confusion, association, dilution, and unfair use that this registration would imply due to the very well-known nature and recognition of the MAC brand worldwide: “this type of brand is protected not only from the risk of confusion and association, but also from the risk of dilution and unfair use of its prestige[7]

In conclusion, the resolutions of the Andean Court of Justice have paved the way for the competent offices of the member countries of the Andean Community to establish clear rules for the recognition and protection of renowned brands.

[1] Prejudicial Interpretation 01-IP-87

[2] Prejudicial Interpretation 41-IP-98. Process 219099, marks SUPERMAN v. SUPERMANI. Consulting country Colombia.

[3] Preliminary Interpretation 196-IP-2020. Case 7467-2017-0-1801-JR-CA-26, trademarks TFQ LA TABERNA DE FRANCO Q vs SANTIAGO QUEIROLO S.A.C. Consulting country Peru

[4] Preliminary Interpretation 23-IP-2021. Process 570061-2014/DSD, marks ZAPATA PERU AGROINDUSTRIAS ZAPATA S.A.C. v. CATENA ZAPATA Consulting country Peru

[5] Prejudicial Interpretation 123-IP-2021. Process SD2016/0059251, marks ZOO v. BIO ZOO. Consulting country Colombia.

[6] Resolution No. OCDI-2022-159. Collegiate Body of Intellectual Rights. SENADI-2018-65615 process, marks UBER v. UBER FRUITS.

[7] Resolution No. OCDI-2022-272. Collegiate Body of Intellectual Rights. OCDI-2021-191-AN process, marks MAC v. MAC ACCES BY MOBILE STORE MAS LOGOTIPO.

Andrea Miño
Associate at CorralRosales
andrea@corralrosales.com

Green hydrogen: The Energy of the Future

Foto de Mario Fernández y Rafael Serrano, asociados de CorralRosales, más una foto de un edificio de cristal y el logo de CorralRosales

Green hydrogen is emerging as a major alternative when it comes to taking on climate change.  Forbes has called it the “energy of the future,”[1] and Goldman Sachs estimates that by 2050, the green hydrogen market will exceed US$11 trillion. [2]

In Latin America, Chile is one of the countries that is at the forefront. In 2020, the nation launched its “National Green Hydrogen Strategy,”[3] and just two years later, several projects were announced, including: HyEx, which will produce green hydrogen for mining; Highly Innovative Fuels (HIF), to generate fuels based on green hydrogen[4]; and Antofagasta Renewable Energy and Mining (AMER), which will include the construction and operation of an electrolyser capable of producing around 30 tons of green hydrogen per day.[5] 

In Ecuador, green hydrogen is already considered a fundamental element for the decarbonized energy transition,[6] and the country will begin working[7] on a roadmap[8] for its implementation.

This article elaborates on what green hydrogen is, delving into its concept and challenges, and providing several conclusions.

I. Green Hydrogen

Hydrogen is “…the lightest chemical element that exists, its atom is made up of one proton and one electron and is stable in the form of a diatomic molecule (H2).” [9] It is not isolated in nature, but rather coexists with other elements such as oxygen (H2O) or carbon (forming organic compounds).[10] This means that hydrogen cannot be obtained directly and needs to be produced.[11] 

According to the International Renewable Energy Agency[12] (hereinafter, “IRENA”), hydrogen can be produced using multiple processes. A color-based nomenclature system has been assigned to differentiate the various production processes;

  1. Gray hydrogen is produced with fossil fuels (e.g.  from methane by steam reforming or coal gasification) and its use generates significant CO2 emissions. About 95% of the total world hydrogen production is grey.
  2. Blue hydrogen is gray hydrogen with an added capture and storage of CO2 emissions. However, studies show that this capture and storage has an efficiency of between 85% and 95%, in the best of scenarios, meaning that it emits between 5% and 15% of CO2. This means that it reduces emissions, but does not eliminate them.
  3. Green hydrogen is produced through processes that use only renewable energy and do not generate CO2 emissions, which makes a significant contribution to tackling climate change. Electrolysis is the most mature and consolidated process on the market. This consists[13] of breaking down water molecules (H2O) into oxygen and hydrogen[14] through an electrolyser[15] that is powered by electrical energy from renewable sources (e.g., wind, solar, etc.). There are other processes (including biomass gasification, pyrolysis, thermochemical division of water, photocatalysis, combined dark fermentation), but they have not yet reached a commercial scale, so they have not been considered in this article.

As shown here, the difference is not in the hydrogen itself, but rather the method for producing it. 

The Race to Zero[16] campaign under the United Nations Framework Convention on Climate Change[17] establishes a goal by 2050 of reducing “… greenhouse gas emissions to as close to zero emissions as possible…”[18] Achieving this will require substituting fossil fuels with renewable energies to cover global energy demand.[19] Such alternatives include green hydrogen.[20] By 2050, this industry could “…reduce 6 billion tons of greenhouse gases…”[21]

Because of the environmental benefits surrounding green hydrogen, its uses have expanded to sectors where more value can be generated. Initially,[22] green hydrogen use was limited to light-duty fuel cell vehicles (or FCEVs). Today it is used widely and large amounts of green hydrogen have been planned for industries that generate major amounts of CO2 emissions that are difficult to mitigate, which include: the steel industry, oil refining, maritime and air transportation.[23][24][25]

Sweden’s SSAB [26] uses green hydrogen instead of coal to produce “green steel,” and maintains that it would reduce up to 10% of its annual emissions of CO2.[27] Shell will invest in the construction of a project in Rotterdam to produce around 60 tons of green hydrogen per day and allocate it to oil refining.[28]

Additionally, green hydrogen can be stored for long periods and later used to generate electrical energy.[29] Aces Delta, a joint venture between Mitsubishi Power Americas and Magnum Development LLC, has set out to build “…the largest green hydrogen production and storage facility in the world” [30] in Delta, Utah.

II. Challenges

The biggest challenge facing green hydrogen revolves around reducing its high cost of production, which depends mainly on the capital costs of electrolysis and the price of electrical energy used for said production. In 2019, green hydrogen was two to three times more expensive to produce than gray hydrogen.[31] 

However, trends have pointed to a reduction in the prices of electricity produced by renewable sources and the capital costs of electrolysis, which means that the production costs of green hydrogen are expected to decrease. In this regard, Wood Mackenzie published a report suggesting that costs will be reduced by up to 64% by 2030.[32]

Another challenge is the lack of infrastructure for the transportation and storage of green hydrogen. In 2020, worldwide, there were only 5,000 kilometers of transmission pipelines for green hydrogen and more than 3 million kilometers for natural gas. This means that either new infrastructure needs to be created or adaptations need to be made to existing infrastructure insomuch as possible.[33]

It will also be necessary for humanity to recognize the value of green hydrogen in the fight against climate change in order to generate enough demand to justify the industry’s development. 

To face these challenges and promote the generation and consumption of green hydrogen, one key development will be an adequate legal framework.

In Ecuador, as provided in articles 261.7 and 261.11 of the Constitution, the State has exclusive jurisdiction over natural and energy resources. Additionally, under article 313, it is the State’s responsibility to administer, regulate, control, and manage strategic sectors, which include all forms of energy.

The Organic Law of the Public Service of Electric Power and its Regulations govern the development, financing, operation, and commercialization of electric power in Ecuador, including the promotion and execution of energy projects based on renewable energy sources, which would be the basis for the production of green hydrogen by electrolysis.

However, the Ecuadorian legal system contains no specific regulation on green hydrogen. This makes it important to structure an effective legal regime that fully addresses the entire value chain and promotes its production (through electrolysis or other processes), distribution, and use. Said regime must include short- and long-term commitments that provide security and encourage the private sector to assume the risk of investing in this new industry, as well as the fiscal and financial incentives or associated benefits to attract said investment. 

Within this legal framework, a recommendation is made, among other things, to include guidelines fit to the reality of each country:

  1. Identify priorities. If a country has enough renewable energy sources, it will be able to focus its activity on generating green hydrogen at a competitive cost. In other cases, importation will be a better option.
  2. Identify applications or uses that generate greater value. It makes no sense to use green hydrogen in sectors where efficient and cheaper alternatives exist. Hence, its use is focused on hard to abate sectors such as steel, maritime, and air transport.
  3. Facilitate and promote the flow of capital for the creation, expansion, or reuse of infrastructure for green hydrogen, as well as the manufacture or import and installation of the technologies that allow its production (e.g. electrolyzers, which are the devices that make it possible to carry out electrolysis processes in a controlled manner).
  4. Establish tax rebates to offset competition from those jurisdictions where gray hydrogen production remains attractive.
  5. Promote the switch to green hydrogen through loans or funds dedicated to that industry; special prices or rates for green hydrogen; promote the market for “green” products.

III. Summary

Green hydrogen could help in the fight against climate change. In addition, if the industry develops as expected, social and economic benefits could be obtained, since it would promote the growth of skills and human capital, as well as productive diversification, job creation, and investment.

The success of green hydrogen may vary depending on the reality and objectives of each country. Interest in green hydrogen may be higher or lower than expected and, therefore, the projections may be more or less optimistic.

In any case, the fight against climate change, reduction of the capital costs of electrolysis, and the price of electrical energy from renewable sources have generated a favorable scenario for the development of green hydrogen around the world, which can be promoted through an effective legal framework.

In Ecuador, a legal regime needs to be structured that, coupled with the nation’s reality and objectives, addresses the entire value chain of green hydrogen in a way that provides legal certainty and clear incentives or benefits to private investment.

[1] BBC, Green Hydrogen: Green hydrogen: 6 countries that lead the production of one of the “energies of the future” (and which is the only one in Latin America), March 31, 2021, https://www.bbc.com/world/news-56531777

[2] BBC, Renewable energies: what are green, blue and black hydrogens (and why billions are invested in two of them), August 26, 2020, https://www.bbc.com/world/news-53925884

[3] Chilean Ministry of Energy, National Green Hydrogen Strategy, November 2020, https://fch.cl/wp-content/uploads/2021/07/estrategia_nacional_de_hidrogeno_verde_-_chile.pdf

[4] BBC, Green Hydrogen: Green hydrogen: 6 countries that lead the production of one of the “energies of the future” (and which is the only one in Latin America), March 31, 2021, https://www.bbc.com/world/news-56531777

[5] H2 Business News, Air Liquide will develop a large renewable hydrogen electrolyser for Chile, August 15, 2022, https://h2businessnews.com/air-liquide-develop-a-great-renewable-hydrogen-electrolyzer-for-chile/

[6] CELEC EP, Ecuador offers investment opportunities around green hydrogen through the generation of renewable energies May 26, 2022, June 8, 2022,https://www.celec.gob.ec/electroguayas/index.php/sala-de-prensa-2/noticias/773-ecuador-ofrece-oportunidades-de-inversion-en-torno-al-hidrogeno-verde-a-traves-de-la-generacion-de-energias-renovables-26-mayo-2022

[7] Vistazo, Green hydrogen, a promising solution for decarbonization, September 2, 2022, https://www.vistazo.com/enfoque/hidrogeno-verde-prometedora-solucion-para-la-descarbonizacion-FK2927667

[8] H2LAC, Ecuador will have its own roadmap and national strategy for green hydrogen, April 27, 2022,https://h2lac.org/noticias/ecuador-tendra-su-propia-hoja-de-ruta-y-estrategia-nacional-para-el-hidrogeno-verde/

[9] National Hydrogen Center, Hydrogen, retrieved on September 26, 2022,  https://www.cnh2.es/el-hidrogeno/,

[10] National Hydrogen Center, Hydrogen, retrieved on September 26, 2022,  https://www.cnh2.es/el-hidrogeno/,

[11] Ibid.

[12] IRENA, Hydrogen: A renewable energy perspective, September 2019, https://www.irena.org/publications/2019/Sep/Hydrogen-A-renewable-energy-perspective 

[13] BBC, Renewable energies: what are green, blue and black hydrogens (and why billions are invested in two of them), August 26, 2020, https://www.bbc.com/world/news-53925884

[14] Chile Foundation, A strategic opportunity for Chile: green hydrogen, retrieved on September 29, 2022, https://fch.cl/iniciativa/hidrogeno-verde/

[15] BBC, Green Hydrogen: Green hydrogen: 6 countries that lead the production of one of the “energies of the future” (and which is the only one in Latin America), March 31, 2021, https://www.bbc.com/world/news-56531777

[16] This campaign represents 1,049 cities, 67 regions, 5,235 companies, 441 of the largest investors and 1,039 higher education institutions, from a total of 120 countries. For more information, see: https://unfccc.int/climate-action/race-to-zero-campaign

[17] United Nations, Race To Zero Campaign, visited on September 29, 2022, https://unfccc.int/en/node/227769

[18] United Nations, Getting to Net Zero Emissions:

the world pledges to take action, visited on September 29, 2022, https://www.un.org/es/climatechange/net-zero-coalition

[19] La República, A country with a future in green hydrogen, August 31, 2022, https://www.larepublica.co/especiales/camino-a-la-sostenibilidad/un-pais-con-futuro-en-el-hidrogeno-verde-3436269

[20] Ibidem.

[21] CELEC EP, Ecuador offers investment opportunities around green hydrogen through the generation of renewable energies May 26, 2022, June 8, 2022,https://www.celec.gob.ec/electroguayas/index.php/sala-de-prensa-2/noticias/773-ecuador-ofrece-oportunidades-de-inversion-en-torno-al-hidrogeno-verde-a-traves-de-la-generacion-de-energias-renovables-26-mayo-2022

[22] IRENA, Green hydrogen: A guide to policy making, November 2020.https://www.irena.org/publications/2020/Nov/Green-hydrogen

[23] EKOS, Green Hydrogen: What is it and why do they call it the energy of the future? June 1, 2022, https://www.ekosnegocios.com/articulo/hidrogeno-verde-que-es-y-por-que-lo-llaman-la-energia-del-futuro

[24] BBC, Renewable energies: what are green, blue and black hydrogens (and why billions are invested in two of them), August 26, 2020, https://www.bbc.com/world/news-53925884

[25] Chile Foundation, A strategic opportunity for Chile: green hydrogen, retrieved on September 29, 2022, https://fch.cl/iniciativa/hidrogeno-verde/

[26] SSAB, About SSAB, visited on September 29, 2022, https://www.ssab.com/en/company/about-ssab

[27] EKOS, Green Hydrogen: What is it and why do they call it the energy of the future? June 1, 2022, https://www.ekosnegocios.com/articulo/hidrogeno-verde-que-es-y-por-que-lo-llaman-la-energia-del-futuro

[28] H2Businessnews, Shell: “Green hydrogen will cost less than blue fossil fuel,” August 10, 2022, https://h2businessnews.com/shell-el-hidrogeno-verde-costara-menos-que-el-azul-de-origen-fosil/

[29] IRENA, Green hydrogen: A guide to policy making, November 2020.https://www.irena.org/publications/2020/Nov/Green-hydrogen

[30] H2Businessnews, Construction of the largest underground hydrogen storage project in the world, August 8, 2022, https://h2businessnews.com/construyen-el-mayor-proyecto-de-almacenamiento-subterraneo-de-hidrogeno-del-mundo/

[31] IRENA, Hydrogen: A renewable energy perspective, September 2019, https://www.irena.org/publications/2019/Sep/Hydrogen-A-renewable-energy-perspective

[32] BBC, Green Hydrogen: Green hydrogen: 6 countries that lead the production of one of the “energies of the future” (and which is the only one in Latin America), March 31, 2021, https://www.bbc.com/world/news-56531777

[33] In this regard, IRENA notes the following: “One option would be repurposing pipelines currently dedicated to fossil gas for the transportation of green hydrogen. Repurposing pipelines may involve the replacement of valves, regulators, compressors, and metering devices, but, in some cases, depending on the pipeline material, it could also require replacing the actual pipelines.” IRENA, Green Hydrogen Supply: A guide to policy making, May 2021, p. 15,  https://irena.org/-/media/Files/IRENA/Agency/Publication/2021/May/IRENA_Green_Hydrogen_Supply_2021.pdf

Mario Fernández
Associates at CorralRosales
mfernandez@corralrosales.com

Rafael Serrano
Associates at CorralRosales
rserrano@corralrosales.com

Registry, use and inactivation of breasfeeding support rooms

Edificio de cristal con el logo de CorralRosales
Through official notice sent via e-mail on October 17th, 2022; the Ministry of Labor makes available the User manual (the “Manual”) containing the general process to register or inactivate breastfeeding support rooms on the Single Labor System (Sistema Único de Trabajo) (“SUT”).


Process Summary.

1.    Log in to SUT System.
  • Access the system by using the link: https://sut.trabajo.gob.ec/
  • Select the option “Sistema para Personas Jurídicas y Naturales”.
  • Log in by using the corresponding user and password.
  • Select the option “Salud y Seguridad en el Trabajo”.
  • Agree to the user statement popup.
2.    Registry and Inactivation of Breastfeeding Support Rooms.
  • Enter the “Salud en el Trabajo” module and select the option “Sala de Apoyo a la Lactancia Materna”.
  • Select the option “Nuevo” on the corresponding list of active breastfeeding rooms registered by the company.
  • Select the option “Nuevo” on the upper part of the registry.
  • Resister the corresponding information about the implementation of the room and select “Guardar”.
  • Once the entry is completed, the options to edit, print or inactivate will be made available.
3.    Registry of the Use of Breastfeeding Support Rooms.
  • Enter the “Salud en el Trabajo” module and select the option “Sala de Apoyo a la Lactancia Materna”.
  • Select the option “Nuevo” on the corresponding list of active breastfeeding  rooms registered by the company.
  • Register the information of the workers that used the room, according to the period.
  • Select the option “Guardar”.

Edmundo Ramos

Specialist in Labor Law
Edmundo Ramos, partner at CorralRosales
eramos@corralrosales.com
+593 2 2544144

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NOTE: The above text has been prepared for informational purposes. CorralRosales is not responsible for any loss or damage caused as a consequence of acting or not acting on the basis of the information contained in this document. Any additional determined situation requires the specific opinion and concept of the firm in Quito / Guayaquil, Ecuador.

CORRALROSALES

Amendments to several tax regulations

Manos con las uñas pintadas de rosa haciendo uno de una calculadora. Pieza para un boletín tributario de CorralRosales: aparece el logo de CorralRosales también en la pieza gráfica

The President of the Republic issued the Executive Decree 586 on October 31, 2022 which several regulations to Commercial, Investment and Tax Policy. The following is a summary of the main tax reforms:

I.    Amendments to the Regulations for the Application of the Internal Tax Regime Law: 

1.    Professional Services. The term “professional services” is defined as those rendered by professionals accredited with an academic degree, either as an individual or through a legal entity. 

2.    Ghost Entities. If the Internal Revenue Service notifies a taxpayer that it has incurred in the circumstances to be qualified as a non-existent entity, ghost entity, or taxpayer with non-existent transactions, the taxpayer will have 30 business days to refute such assertion. Previously the term was 5 business days.

The taxable base will not be reduced by transactions carried out with companies qualified as non-existent or ghost entities, except for those cases in which the taxpayer supports the material sequentiality of the expense and its economic essence. 

3.    Depreciation of fixed assets. The possibility of requesting accelerated depreciation of assets in cases of obsolescence, intensive use or other reasons is eliminated.

4.    Losses. In the case of individuals and/or non-financial entities, the loss or discount generated in the sale of financial assets corresponding to commercial credits or portfolio, which are negotiated outside the stock market or with related parties, will not be deductible.

5.    Royalties, technical, administrative and consulting services. A limit is again imposed on the deductibility of the sum of expenses for royalties, technical, administrative and consulting services paid to related parties. This limit had been eliminated by Executive Decree 304, published in Official Gazette Supplement 608 of December 30, 2021.

As from fiscal year 2023 the limit will be equivalent to 5% of the taxable income of the respective fiscal year, except in the following cases:

a.    Taxpayers that are in the pre-operative cycle of the business, the limit will be equivalent to 10% of the total assets.
 
b.    Taxpayers whose only activity is to provide technical services to independent parties, if the operating margin indicator (operating profit over operating sales) is equal or higher than 7.5%. If the indicator is lower, a specific deductibility limit will be applied.

c.    Taxpayers that carry out operations with related parties in Ecuador, as long as the taxpayer that incurs the cost or expense has an effective tax rate equal to or lower than that of its related party with which it carries out the operation. 

d.    When the total of royalties, technical, administrative and consulting services operations with related parties within a fiscal year does not exceed 20 basic fractions taxed at zero income tax rate for individuals.

The taxpayer may request a higher limit of deductibility through an advance pricing agreement with the IRS. 

6.    Deferred taxes: The following is added:

a.    In the case of non-financial entities, a deferred tax will be recognized for the value impairment of financial assets corresponding to uncollectible credits that exceed the deduction limits. The deferred tax will be recognized on the value impairment generated as from fiscal year 2023. 


b.    Deferred tax is recognized on the difference between the financial depreciation of property, plant and equipment and the limits established for deductibility. The deferred tax will be recognized on assets acquired as from fiscal year 2023.


7.    Reduction of the tax rate for new investments. In the case of taxpayers that make new investments and are not able to maintain a cost center for such new investment, they must calculate the reduction in the income tax rate based on a formula established for such purpose.


8.    Legal certainty and stability on tax incentives. During the term of the investment contract, the rules that regulate the application of the tax benefits in force at the date on which the contract was entered into, will remain stable. If there are amendments that establish more favorable benefits to the investment, the investor may apply such benefits. 

9.    Settlement and payment of VAT. The transfers of goods and rendering of services carried out by micro, small and medium enterprises must be declared in the following month and paid up to 3 months after the fiscal period in which the invoice was issued, if a payment term was granted for more than one month. 

10.    VAT refund to exporters of services. Exporters of services may request a VAT refund even when: (i) they do not comply with the requirement of habituality; and/or, (ii) the payment for the services is received from a local bank account, provided that the payment is made on behalf of the non-resident. 

11.    VAT paid to popular businesses. In order to support the VAT paid to popular businesses, taxpayers must issue a liquidation of purchase of goods and rendering of services and withhold 100% of the VAT generated. 


12.    Excise tax (ICE) taxable base. Refunds made before the goods or services have been consumed will not be consider for calculating the ICE taxable base.

13.    Mining activity. The following will apply to the amortization of investments made by companies holding mining concessions and companies that have entered into exploitation contracts:

a.    The investments made in the phases of prospecting, initial exploration, advanced exploration and economic evaluation of the deposit must be amortized on a straight-line basis over 5 years from the beginning of production. Amortization shall be directly related to each mining concession. 

b.    Complementary exploration investments during the exploitation phase must be amortized on a straight-line basis over 5 years from the start of production, subject to certification by the competent entity. The amortization must be directly related to each mining concession.


c.    The amortization of investments for the preparation and development of the deposit shall be directly related to each mining concession and shall be made in accordance with the Production Unit Method as from the beginning of production.


d.    For depreciation of property, plant and equipment the following shall apply:

i.    Depreciable property, plant and equipment associated with mining reserves will be depreciated based on the Production Unit Method as of the commencement of production,
ii.    Depreciable property, plant and equipment not associated with mining reserves will be depreciated on a straight-line basis over their useful live from the time they are available for use. The depreciation percentage may not exceed the limits provided for in the regulations. 

II.    Amendments to the Regulations for the Application of Foreign Exchange Tax:

14.    Foreign Exchange Tax (ISD). For the application of the ISD exemption by virtue of investment contracts, the capital goods and raw materials on which the benefit is applied must be classified as such within the CUODE. Otherwise, the Government entity must establish, within the corresponding opinion, that the goods must be exceptionally considered as raw material or capital goods for the project. 

III.    Amendments to the Regulation of Invoices, Withholding Receipts and Complementary Documents: 

15.    Settlements of purchases of goods and rendering of services. This type of documents may be issued for transactions of goods and services carried out with individuals who maintain their RUC in suspended status and who, due to their cultural level are not able to issue invoices. 

16.    Invoice filling requirements. If the transaction does not exceed USD$500.00, the invoice may be issued to “END CONSUMER”. Previously the maximum value was US$200.00. 

IV.    Amendments to the Investment Regulation of the Code of Production, Commerce and Investments: 

17.    Procedure for approval of investment contracts. In order to enter into an investment contract, the investor must submit a list of permits, authorizations or any other title necessary for the execution of the project. If the investor does not have such permits, the documentation supporting the initiation of the procedure to obtain them must be submitted. 

18.    Opinion of the governing body of public finances. The accumulated value of the tax incentives derived from the investment contract may not exceed the amount of the investment. The Government entity of public finances must issue an opinion, verifying the above, within a non-extendable term of 30 days. 

19.    Addenda to investment contracts. Entities that have entered into investment contracts may request -at any time- the execution of an addenda. Such addenda may maintain the tax and non-tax benefits stabilized at the date of subscription of the contract.

Andrea Moya - CorralRosales - Lawyer Ecuador

Specialist in Tax
Andrea Moya, partner at CorralRosales
amoya@corralrosales.com
+593 2 2544144

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NOTE: The above text has been prepared for informational purposes. CorralRosales is not liable for any loss or damage incurred as a result of acting or failing to act on the basis of the information contained in this document. Any additional determined situation requires the specific opinion and concept of the firm in Quito / Guayaquil, Ecuador.

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Partial unconstitutionality of the law for economic development and fiscal sustainability after the COVID-19 pandemic

Manos con las uñas pintadas de rosa haciendo uno de una calculadora. Pieza para un boletín tributario de CorralRosales: aparece el logo de CorralRosales también en la pieza gráfica

On October 28, the Constitutional Court issued the ruling 110-21-IN/22 by which it declared the partial unconstitutionality of the Law for Economic Development and Fiscal Sustainability After the COVID-19 Pandemic. The following are the main effects of such ruling, which has not yet been published in the Official Gazette:

  1. The amendments to the Law of the Special Regime of the Province of Galapagos are declared unconstitutional. This change will be effective as of the publication of the ruling in the Official Gazette.

  2. The amendments to the Hydrocarbons Law are declared unconstitutional, except for the exemption of foreign trade taxes on the importation of fuels, hydrocarbon derivatives, biofuels and natural gas made by individuals or national and foreign entities. This change will be effective as of the publication of the ruling in the Official Gazette.

  3. The tarriff applicable to the popular businesses of the RIMPE regime is declared unconstitutional. This change will be effective as of the fiscal year 2024:

 

  1. The following are declared unconstitutional on the merits with effect as of publication of the ruling in the Official Gazette:

    • The exemption from payment of Inheritance Tax to beneficiaries within the first degree of consanguinity with the deceased.
    • The exemption from criminal liability for any crime, including those of a tax nature, to taxpayers who apply the Regime for the Regularization of Assets Located Abroad is eliminated. The Internal Revenue Service must notify the Financial and Economic Analysis Unit (UAFE) of any suspicious activity.

Andrea Moya - CorralRosales - Lawyer Ecuador

Specialist in Tax
Andrea Moya, partner at CorralRosales
amoya@corralrosales.com
+593 2 2544144

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NOTE: The above text has been prepared for informational purposes. CorralRosales is not liable for any loss or damage incurred as a result of acting or failing to act on the basis of the information contained in this document. Any additional determined situation requires the specific opinion and concept of the firm in Quito / Guayaquil, Ecuador.

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Acquisition of treasury shares – current regulation and possible reforms

Foto de Sofía Rosales, asociada de CorralRosales + foto de un edificio + Logo de CorralRosales

It may seem strange for a company to be its own shareholder, i.e., to hold a certain number of shares issued by the company itself, commonly known as treasury shares or treasury stock. However, there are several reasons why a company might be interested in acquiring its own shares, and their regulation becomes necessary, since it entails equity and corporate risks. This matter would merit a more in-depth analysis, but this article aims to describe in broad outline the main purposes of treasury stock, the risks it presents, current regulation and possible reforms.

1. Main purposes of treasury stock and its risks

From an equity perspective, the acquisition of treasury stock essentially produces the same effects as a distribution of dividends, especially considering that the Law on Companies determines that, in order to acquire treasury stock, it is necessary to use funds taken from net profits which may be disposed of by the general shareholders’ meeting. The company uses the net profits, which are part of the shareholders’ equity, to pay the selling shareholder the value of the acquired shares. The renowned Spanish lawyer Jesús Alfaro states that: “when a company acquires its own shares, in fact, what it does is to distribute part of its equity to the shareholders or members whose shares or units it acquires.”[1]

In addition, if the treasury stock is resold at a higher value than that at which it was acquired, the shareholders will benefit, since this transaction will generate a profit for the company, which will ultimately be consolidated in the total profit belonging to all shareholders.  

From a tax perspective, it is more convenient for the shareholders to receive income from the sale of shares than from dividends, since the income in the first case is taxed by the Single Income Tax (Impuesto a la Renta Único) over the profit on the sale of shares, while the income from dividends becomes part of the global income subject to Income Tax. In short, the shareholder will have the option to choose between keeping its participation in the company or obtaining a tax benefit on the value received, which could be in the shareholder’s interest in case it considers that its investment has yielded the expected results. It will also be very important to consider whether by selling part of his shares to the issuing company itself, the capital percentage held by shareholder decreases – diluted – or not.

From a different standpoint, holding treasury stock allows certain financial transactions, such as the issuance of convertible bonds. Thus, when the bonds are converted into shares, it is not necessary to carry out a capital increase, but it can be done with shares held in treasury.

The problem is that these types of transactions affect the equity of the company, since the capital stock ceases to be a guarantee against creditors, since, in accounting terms, the capital stock does not have a cash counterpart, but the counterpart is the company’s own shares. This means that the capital stock is not invested in actual assets. For these reasons, as will be discussed below, the legislator is becoming increasingly wary of these transactions. 

2. Current regulation

Pursuant to the Law on Companies, corporations may acquire their own shares in order to: (i) resell them; or (ii) redeem them, provided that the requirements contained in article 192, transcribed below, are met: 

“The general shareholders’ meeting may decide that the corporation acquires the shares issued by it, provided that the following requirements are met:

  1. That a majority of the shareholders attending the corresponding meeting resolve the acquisition of the shares;
  2. That only funds taken from net profits are used for such transaction;
  3. That the capital corresponding to the acquired shares is fully paid-in; and,
  4. That in no case shall the acquisition result in a decrease in the subscribed capital.

As long as the shares are held by the company, the rights inherent to them will be suspended.

A resolution by the general shareholders’ meeting will also be required for these shares to be put back into circulation.”

Article 196 of the Law on Companies refers to the redemption of shares and establishes that:

The redemption of the shares will be done against the capital stock, for which its reduction shall be previously resolved, in the form established by this Law or the bylaws. The redemption of shares may not exceed fifty percent of the capital stock

It derives from the foregoing that corporations, once they acquire their own shares with net profits, may either reintroduce them into the legal market or redeem them by means of a capital reduction.

Prior to the entry into force of the Law for the Modernization of the Law on Companies – in December 2020 – the redemption of shares against distributable profits and not necessarily against the stock capital was allowed, in which case, there was no capital reduction. This possibility was eliminated, which evidences a certain reaction from the lawmakers with respect to the acquisition of treasury stock, which, with this possibility, could be kept in the company without the need to reduce capital or reintroduce them into circulation.

With respect to limited liability companies (compañías de responsabilidad limitada), Article 112 provides as follows:

“The redemption of the corporate units will be done against the capital stock, for which its reduction shall be previously resolved, in the form established by this Law or the bylaws. The redemption of the units may not exceed fifty percent of the capital stock.”

Based on the above and derived from the very nature of limited liability companies, they can only acquire their own shares in order to redeem them. 

At this point, the reader may be asking themselves, in what time does the company have to resell or redeem the shares, in the case of a corporation, or redeem the units, in the case of a limited liability company? Well, this very important point is not currently regulated by the Law on Companies. Therefore, although the possibility of redeeming shares against distributable profits has been eliminated, companies do not have a time limit in which they must either redeem them or resell them.

In other legislations, such as Spain, the regulation of the acquisition of treasury stock is much stricter since it is expressly prohibited[2]. In the event of contravention of this prohibition, a limit of one year is established for the resale or redemption of the shares or units, and a fine of up to the nominal value of the shares or units is imposed.  

Moreover, our legislation does not provide for express regulation on this matter for companies listed on the stock exchange, where these transactions would be particularly dangerous.

Possible reforms

As we have anticipated, the Ecuadorian lawmaker is becoming more and more reluctant to this type of transactions, and although it is not expected to reach a rigidity similar to the Spanish legislation, the draft Law Reforming the Law on Companies for the Promotion of Corporate Governance, currently in process in the National Assembly, foresees the inclusion of the following paragraph in article 192 in fine of the Law on Companies:

The shares must be transferred within a maximum period of one year from their acquisition. Once this period has elapsed without the transfer having taken place, the administration shall immediately proceed to call a general shareholders’ meeting to resolve to redeem the repurchased shares, with the consequent reduction of the capital stock.

This constitutes a significant change compared to current legislation, since companies will not be able to hold treasury stock indefinitely, which would consequently discourage this type of operation. This change could also be seen as protection for minority shareholders and third-party creditors.  

It will be very important to regulate these types of transactions in companies listed on the stock exchange in order to preserve their transparency.

[1] Alfaro, J. (2020) Los negocios de una sociedad sobre sus propias acciones o participaciones. Almacén de Derecho. https://almacendederecho.org/los-negocios-de-una-sociedad-sobre-sus-propias-acciones-o-participaciones

[2] Artículo 134 de la Ley de Sociedades de Capital de España: “En ningún caso las sociedades de capital podrán asumir o suscribir sus propias participaciones o acciones(…)

Sofía Rosales
Associate at CorralRosales
srosales@corralrosales.com