Author: Yudy Andrea Giraldo Aristizabal
On September 12, 2023 The National Institute of Public Accountants – INCP, in a communication published and sent to its members, gives its position regarding the subject under discussion «Legal Effects of the appointment of the Statutory Auditor», and on which the Technical Council of Public Accounting (CTCP) has pronounced itself in a communication sent to the Superintendence of Corporations regarding Official Letter 220-142346 of 2023 issued by this entity, in which it states that the INCP shares the position of the CTCP with respect to this issue, although it considers it necessary to make some clarifications, as indicated:
Despite the fact that, in effect, the statutory auditor’s legal responsibilities are born with his appointment and acceptance of the position, the legal effects of the registration are very significant. The registration of the statutory auditor before the Chamber of Commerce is required for his acts to be enforceable against third parties. Therefore, as long as he/she is not registered, his/her actions before third parties have no probative value.
It should be noted that when the statutory auditor is not required to be registered in a public registry, his actions are enforceable without this formality, but when the law requires it, such registration is necessary to use his actions as legal evidence.
It is important to point out that, in the case of the appointment of auditing firms as statutory auditors, there is a procedure subsequent to the appointment where the firm designates the professional public accountants that will represent it in the position, a matter that is not covered by the aforementioned concepts. Another aspect to regulate and in which there could be discrepancies, is when the acceptance by the regulator (Financial Superintendence) is required. In this case, the appointed statutory auditor may not perform his functions until the review of his résumé has been completed and the acceptance by the regulator has been obtained.
Apart from the discussion, it is clearly inequitable and contrary to the nature of the statutory auditor’s responsibility to require him to make the termination of his duties subject to the registration of his replacement in the Chamber of Commerce, which is clearly contrary to the principle ‘Ad impossibilia nemo tenetur’ which has been endorsed on several occasions by the high courts of our country.
Finally, we believe it is necessary to issue a regulatory decree that includes clear regulatory guidelines on the due process to be followed in the different situations that may arise from the appointment, revocation and resignation of a statutory auditor, which transcends from reports and opinions to tax and compliance issues.
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