The proposed capital gains tax rule contains several provisions that must be carefully weighed. One of them refers to the treatment of company dissolutions, which establishes that the payment of capital gains on the company’s assets must be made by the shareholders at the time of liquidation. The justification given is based on the fact that the company and its shareholders are different legal entities, so the transfer of the assets to the latter is equivalent to if the company had sold them to a third party. The reality, however, is that the shareholders, through their actions, were already owners of those assets at the time of dissolution, apart from the fact that it is not a sale of assets but the disappearance of a legal entity and the consequent distribution of your assets between your owners.
But outside the legal arguments, which do not fall within the scope of this column, that provision can generate unfair economic situations. Suppose someone owns a shop or an apartment, sets up a company, and gives it to you to run. Five years later, he decides to dissolve it and manage or occupy the property itself. If a capital gain took place during that time, the owner of the company would have to pay on that capital gain from the property that he himself contributed and that is being returned to him. Since he does not want or intend to sell it to a third party, where is he going to get the money to pay the tax? In that case, that individual would be forced to sell his premises or apartment, or would have to refrain from dissolving the company.
In this sense, it could be possible, at least with regard to the real estate that the shareholder provided, modify the proposed standard so that, in the example, the property return to him, and that he only has to pay the tax when he sells it to a third party, and receives from him the funds with which to make the disbursement.