¿Impositores en una fundación?


Uno de los criterios fundamentales que animaban la reforma del régimen legal de las cajas de ahorros era el de su conversión en accionistas de bancos privados, a los que las cajas debían transmitir su negocio financiero. En ese proceso, a las cajas se las permitía mantener la condición de entidad de crédito siempre que conservaran el control, individual o concertado, del banco participado. De no ser así, las cajas debían transformarse en fundaciones de carácter especial, perdiendo la condición legal de entidad de crédito.

Esta es la situación en la que se encuentran las cajas de ahorros que en su día constituyeron y participaron en el capital de bancos privados que, posteriormente, han pasado a tener al Fondo de Reestructuración Ordenaba Bancaria (FROB) como su único principal accionista. La transformación de las cajas en fundaciones presenta dilaciones a las que se refería una reciente crónica de Expansión (“Caja Madrid, CatalunyaCaixa y NCG, forzadas a ser fundación de inmediato”, 9 de noviembre de 2012, p. 24), cuyos párrafos principales transcribo:
La conversión en fundación debía ser acordada por las asambleas de las respectivas cajas, previa convocatoria por parte del consejo de administración. Además, las asambleas tenían que constituir el primer patronato que gobernaría la fundación.
El proceso se ha dilatado en el tiempo por la eterna resistencia de las cajas a convertirse en fundaciones y a perder su condición de entidad de crédito. La heterogénea composición de los órganos rectores de las cajas, con presencia de gobiernos regionales, ayuntamientos, sindicatos y clientes, también ha contribuido a bloquear la transformación. Todos los grupos querían mantener su poder en el patronato de las fundaciones. La falta de consenso impidió convocar las asambleas que debían celebrarse (caso de Caja Madrid) y, aunque se celebraron, no pudieron sacar adelante el cambio (CatalunyaCaixa).
Por tanto, al contrario de lo que sucedía hasta ahora, la conversión en fundación y la creación del patronato ya no tiene que ser necesariamente aprobada por la asamblea ni pactada entre los grupos que estaban representados en el órgano.
El cambio afecta especialmente a CatalunyaCaixa, cuya asamblea rechazó por sorpresa el miércoles por la noche aprobar su transformación. La negativa se produjo porque los sindicatos y los impositores se quejaron de que no tenían representación en el patronato de la nueva fundación. Ahora, el consejo intentará elaborar una nueva propuesta que satisfaga a los críticos y no descarta convocar otra asamblea, aunque lo más probable es que esto ya no suceda y se opte por la disolución directa de sus órganos a finales de diciembre”.
Es paradójico que se pretenda conservar la presencia en los órganos de la fundación por parte de los impositores. ¿De qué? La fundación ya no tiene clientes. No tiene depósitos o imposiciones. Más allá de la anécdota, lo que parece es que alguno de los problemas que condicionaron la actividad de las cajas, siguen vigentes en este proceso de transformación en fundaciones de naturaleza especial.
Madrid, 14 de noviembre de 2012

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