Shipping Companies Could be Subject to Surveillance by Super Transport 

February, 2023 - Brigard Urrutia

The recently published project of the National Development Plan (“PND”) 2022-2026 “Colombia World Power of Life” embodies the objectives, goals and priorities of the National Government for the next four years. 

In the PND, the National Government introduces rules or regulations that would make it easier to achieve the objectives pursued. Among the norms proposed in the PND, article 204 stands out by means of which new subjects of inspection, surveillance and control of the Superintendency of Transport (“Super Transport”) are established:

“ARTICLE 204. NEW SUBJECTS OF INSPECTION, SURVEILLANCE AND CONTROL OF THE SUPERINTENDENCY OF TRANSPORTATION. The following natural or legal persons who provide transport-related services, among others, will be subject to the inspection, surveillance and control of the Superintendency of Transport: Container yards, turnaround zones, shipping agents and shipping lines”. 

The inclusion of this article is surprising, in particular, because according to External Circular No. 01 of 2022 of Super Transporte, both container yards and turnaround areas are subject to control when considered as port operators. Therefore, the PND would suggest that the aforementioned circular was improperly supported and to date Super Transporte has no competence to monitor, inspect and control container yards and turnaround areas, nor to demand that they register as port operators. 

In relation to the inclusion of shipping agents, it is not clear if it is a substitution of the inspection and control faculties of the General Maritime Directorate or if it would be a shared surveillance and control. Additionally, the rule is not clear when determining whether shipping agents will be monitored in their capacity as shipowners' representatives or if they are going to be subject to surveillance and control for activities other than those carried out as shipowners' representatives. 

Finally, the standard includes "shipping lines" as subjects of surveillance and control, without defining what should be understood as such, or whether it refers to national or foreign ones. As the project would have been presented, it seems that Super Transporte would exercise its power of surveillance and control over all international maritime transporters that are authorized by the General Maritime Directorate to operate in Colombian ports. 

This implies that international carriers would be subject to the payment of the Special Surveillance Contribution previously called Surveillance Rate, which, it is worth noting, is calculated based on the gross income of those monitored. In this sense, international shipping companies should report all their income to Super Transporte and pay the contribution based on their gross income. In such a way that Super Transporte could exercise its surveillance power over operations that were not carried out in Colombia and that did not constitute income in the country, which would seem to be contrary to the principle of territoriality in tax matters. 

This is not a minor detail, when in 2022 the Special Surveillance Contribution implied a payment of 0.1439% of the gross income received by those subject to comprehensive supervision, 0.1159% of gross income for those subject to objective supervision, and 0.0280% of gross income for subjects of objective supervision. 

As an example, in 2022 the net income of Maerks (the world's largest international shipping carrier) was more than 21.3 billion euros, which could represent a payment corresponding to the Special Surveillance Contribution by this carrier. of up to 30,650,700 million euros.



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