Icaza, González-Ruiz & Alemán asesora al Consorcio HPH Joint Venture
20/11/2020
Icaza, González-Ruiz & Alemán advises Empresa Nacional de Autopista (ENA), S. A.
10/12/2020[vc_row][vc_column][vc_column_text]
By Ricardo Alberto Ceballos G. – Associate
Financial leasing is a form of financing that, like loans, credit lines and any other form of financing, facilitates or makes available to the lessee a capital that will be represented in the leased asset. It is therefore not a common lease nor is it a sale.
Joint tenancy is an agreement by virtue of which two parties are mutually obligated: one (the lessor) to temporarily grant the use and/or enjoyment of a thing or to provide a service or carry out a work, and the other (the lessee) to pay a certain price for this use and/or enjoyment, work or service. In a sale, the use and enjoyment of the thing are granted only on a perpetual basis, forever.
Unlike the two previous ones, it is essential to financial leasing that enjoyment and use are provided on a temporary basis and with the option that the thing is also granted on a perpetual basis in the case of the acquisition of the asset.
It is worth keeping in mind the definition of the Real Estate Financial Lease Contract, which is granted to us by Law 179 of November 16, 2020 :
“A contract that includes the acts or procedures necessary for the acquisition of the property, the execution of promises to buy and sell the property, as well as the disbursements of payments on the purchase price, as applicable, and the leasing stage of the property, which is activated once the ownership of the property has been acquired by the financial lessor.
Law 179 also defines the FINANCIAL LESSOR as:
“A company authorized to engage in the business of financial leasing of real estate, including banks, trust companies, as well as financial companies and leasing companies, that decide to engage in the business and that are previously authorized by the Superintendency of Banks.
Important requirements and formalities of Financial Lease Contracts:
- The Financial Lease Contract, as indicated by the Law, is a consensual contract, understanding that the mere consent of the parties is sufficient for its birth.
- The Law provides that the contract must be concluded for a period of no less than five years or no longer than the period agreed between the financial lessee and the financial lessor.
- In order for the contract to have evidentiary effects, the contract must, in addition to being in writing, the signatures of the parties must be authenticated before a notary.
- The contract will have effect against third parties from the date of registration in the Public Registry of the property ownership in favor of the financial lessor.
- The contract must stipulate that, at the end of the financial leasing period, the financial lessee has at least one of the following options:
- Return the asset that is the subject of the contract to the financial lessor.
- Agree to an additional lease term based on predetermined or to-be-negotiated fees or rents.
- To acquire the aforementioned assets for their residual value or for the price agreed in the contract. The financial lessor and the financial lessee may agree that the acquisition of the real estate object of the contract will be carried out by the financial lessee, or that, at the instruction of the financial lessee, the acquisition will be carried out by a third party related to the financial lessee, as determined by the parties.
Fiscal benefits:
A. (ISR): The following are deductible from income tax:
– The portion of the rents corresponding to interest paid for the lease.
– The expenses incurred by the financial lessor.
B. (ITBMS). The rents paid will not be taxed with the transfer tax on movable tangible assets and the provision of services (ITBMS) for a period of five years.
C. (ITBI) Any real estate that, at the end of the financial leasing contract, is transferred to the financial lessee or to the beneficiary designated by the latter for inheritance purposes, will not be subject to the real estate transfer tax (ITBI).
For more information on this topic, please contact us at igranet@icazalaw.com . [/vc_column_text][/vc_column][/vc_row]
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