Something that is about to happen has me worried: it will become compulsory to include the name and percentage of the registered taxpayer’s shareholders in the RTU in SAT.
The regulation literally says: “Full names and surnames, company name or registered name of the shareholders or partners of the legal entity and their percentage of participation in the capital of the latter, when applicable, through the means made available for this purpose by the Tax Administration”.
I think this rule is too dangerous to be placed in a public registry. The corporate regime in Guatemala maintains very good protection of shareholder information, given that the Shareholder Registry is private and held by the company’s administration.
Our constitution, on the other hand, states:
Article 24. Inviolability of correspondence, documents and books.
“The correspondence of every person, their documents and books are inviolable. They may only be reviewed or seized by virtue of a final decision handed down by a competent judge and in accordance with legal formalities. The secrecy of correspondence and telephone, radio, cable and other modern technology communications is guaranteed.
The books, documents and files relating to the payment of taxes, fees, excise duties and contributions may be reviewed by the competent authority in accordance with the law. It is a punishable offense to disclose the amount of taxes paid, profits, losses, costs and any other data relating to the audited accounts to individuals or legal entities, with the exception of the general balance sheets whose publication is required by law.
Documents or information obtained in violation of this article shall not be deemed authentic or admissible as evidence in court.
In this constitutional provision, we see very clearly that documents and books are inviolable. Within these books and documents we find the registers of company shareholders. The RTU or unified tax register is a register in the SAT intended to keep information on the taxpayer to whom an NIT is assigned. Shareholders are third parties with respect to said taxpayer and their tax relations do not have to be related or registered in the RTU of the company of which they are shareholders.
The second paragraph of the constitutional article is the one that incorporates the scope of the information that the Tax Administration may require and audit and is related to the payment of taxes. Moreover, it is stipulated that it is punishable to reveal any other data referring to the audited accounts. So I don’t see this requirement as entirely constitutional.
In the Tax Code, for example, there are rules for requesting the presentation of information from a taxpayer about their tax relations with other taxpayers. Being a shareholder is not an activity that generates tax obligations on its own. The payment of dividends could mean that the company, as the taxpayer paying them, has to respond and report on the withholdings made. However, withholdings could be made to third parties, since shareholders can, under different legal figures, assign the economic rights of their shares.