Voluntary liquidation: no payouts before liabilities are paid

Voluntary liquidation with outstanding debts: no surplus is distributed before external liabilities are paid, and each authority has its own role. Can the shareholders of an S.A.S. in voluntary liquidation receive assets or surplus while labor obligations remain outstanding? Colombia’s Superintendence of Companies (Superintendencia de Sociedades) answered in Official Letter 195-369900 of September 16, 2026, issued by its Legal Advisory Office, which resolved three questions from a broader inquiry: payments to shareholders, information to employees and creditors, and the division of powers with the Ministry of Labor. It is a general, abstract opinion, not binding according to the letter itself.

The nature of voluntary liquidation

Citing paragraph 7.1 of External Circular 100-000020 of July 2, 2026, the letter recalls that voluntary liquidation is a regulated mechanism to end the legal life of the company: pending activities are wound up, external liabilities are paid and the surplus is distributed among the shareholders. It is a private process in which, as a rule, no public authority intervenes, except for expressly established exceptions or actions.

Payments to shareholders

In principle, the liquidator may not distribute any amount as surplus until all external liabilities have been paid, which must be verified against the inventory of assets and liabilities, under articles 234, paragraph 7, 238 and 241 of the Code of Commerce. The limitation is not absolute: the portion of corporate assets exceeding twice the inventoried and unpaid liabilities at the time of distribution may be distributed among the shareholders.

Article 241 of the Code of Commerce puts it this way: “No amount may be distributed to the shareholders until all of the company’s external liabilities have been paid. However, the portion of corporate assets exceeding twice the inventoried liabilities unpaid at the time of distribution may be distributed among the shareholders”.

Partial distribution: only to the extent of the excess over twice the inventoried and unpaid liabilities.
Advances: the letter does not address them separately; the rule it transcribes speaks of “any amount”.
New assets or claims: once the distribution has been made or the final accounts approved, if new assets appear the liquidator proceeds to an additional award, under article 27 of Law 1429 of 2010. The letter does not address claims that appear later.
Priority and liability: obligations are paid in accordance with the priority of claims under article 242; the inventoried assets set the limits of the liquidators’ liability, which is governed by articles 255, 256 and 258. The letter does not specify the liability of shareholders who receive assets before payment.
Sale of assets: under article 240, assets intended for distribution in kind are sold if the remaining assets are insufficient to pay external liabilities, unless the creditors expressly accept the recipients as debtors and release the company.

Information to employees and creditors

The letter answers with article 232 of the Code of Commerce: those who take office as liquidators must inform the company’s creditors of the state of liquidation through a notice published in a newspaper circulating regularly in the company’s domicile and posted in a visible place at its offices and business premises. The company must not only follow the procedure of paragraph 9 of article 28 of the Code of Commerce, but also inform all creditors in accordance with article 232.

The letter does not answer separately whether each employee must be notified individually, or whether the Ministry of Labor, the unions or anyone else must be informed about the financial position; those points were left unaddressed.

Who decides what

Liquidator: responsible for the process. Prepares the inventory, sells the assets and pays creditors in the legal order of priority, assuming the responsibilities of articles 200 and 255 of the Code of Commerce.
Superintendence of Companies: intervenes only in the cases of articles 233 and 236 of the Code of Commerce and article 2.2.2.1.3.1 of Decree 1074 of 2015, namely the approval of the inventory. It has no say in the settlement or payment of creditors.
Ministry of Labor: the competent authority for the processing, definition and termination of employment relationships, in the aspects that require it.
Liability of the liquidator and the shareholders, insufficiency of assets and priority: governed by articles 218 and following, 239 and following and 243 to 259 of the Code of Commerce, together with articles 25 to 29 of Law 1429 of 2010.
Option for the S.A.S.: the highest corporate body may opt for judicial liquidation, under articles 47 and 49 of Law 1116 of 2006.

On the inventory, the letter transcribes that, under article 124 of Law 1116, except in the cases determined by the Government, the authority does not intervene in articles 233 to 237. Decree 1074 requires stock companies and supervised branches to submit the inventory for approval when the assets are insufficient to cover external liabilities or when there are pension liabilities.

An example: an S.A.S. in liquidation with labor debts

Hypothetical case with illustrative figures. Comercializadora Aurora S.A.S. is in voluntary liquidation. Its inventory shows corporate assets of COP 3,000 million and outstanding external liabilities of COP 1,000 million, including labor obligations.

The shareholders ask to distribute COP 1,500 million now: under article 241 only the excess over twice the unpaid liabilities could be distributed: COP 3,000 million minus COP 2,000 million, that is, COP 1,000 million. Distributing COP 1,500 million does not comply with the rule.
Distribution of COP 1,000 million: the maximum article 241 allows in the example, to be verified against the inventory at the time of distribution.
Termination of employment contracts: a matter for the Ministry of Labor, not the Superintendence.
Notice to creditors: the liquidator reports the state of liquidation with a newspaper notice and posts it in a visible place at the offices.
A new asset appears after the final accounts: an additional award applies, under article 27 of Law 1429 of 2010.
Assets insufficient to cover liabilities: article 2.2.2.1.3.1 of Decree 1074 applies, with the inventory submitted to the Superintendence, and, as an S.A.S., the shareholders may opt for judicial liquidation.

Fidelis Advisories’ recommendations

Fidelis Advisories’ own criteria, going beyond the text of the letter:

Updated inventory: prepare and update the inventory of assets and liabilities before any distribution, and include labor obligations.
Calculate the excess: document the calculation of the excess over twice the outstanding liabilities at the time of each distribution.
Put labor first: settle the termination of contracts and labor payments with the Ministry of Labor before distributing to shareholders.
Proof of the notices: keep the newspaper publication and the record of the posted notice.
Consider judicial liquidation: if the assets appear insufficient, analyze this option for the S.A.S. with a lawyer.
Text and currency: consult the original letter and confirm the current text of the rules cited before applying it to a specific case.

Consolidated opinion

Can shareholders receive surplus during a voluntary liquidation if labor obligations are outstanding? No, not until all external liabilities have been paid, under article 241 of the Code of Commerce; only the portion of assets exceeding twice the inventoried and unpaid liabilities may be distributed. Payment follows the priority of claims, creditors are notified, the Ministry of Labor decides the termination of employment relationships, and the Superintendence intervenes only in the cases of articles 233 and 236 and Decree 1074. In the Aurora example, with COP 3,000 million in assets and COP 1,000 million in outstanding liabilities, the maximum distribution would be COP 1,000 million. This is a general, abstract opinion, not binding according to the letter itself.

This article is for information purposes only and does not constitute legal advice. Contact us about your specific case.