Through Informative Note No. 2024-0001 recently published by the Intendencia de Aduana Marítima del Callao, formal guidelines have been established (for example, it is required to include in the invoice that supports the dispatch certain information regarding the form and conditions of payment to the supplier) on how importers must support the information included in the Customs Goods Declarations (DAM) in relation to the use of means of payment in their import operations for consumption.
The obligation to use means of payment in international purchase and sale operations is currently provided for in Article 3-A of Law 28194 – Law for the Fight against Evasion and for the Formalization of the Economy. Thus, it is a legal obligation that does not arise from the General Customs Law itself and/or from regulatory provisions on customs matters, but whose compliance is being verified and demanded by the National Superintendence of Customs and Tax Administration (SUNAT).
We have observed that, in recent years and especially in recent months, various Customs Offices have adopted a rather formalistic criterion when assessing compliance with this obligation – both through control actions (for example, in Reasonable Doubt procedures on customs value or through information requests in general) and when dealing with refund requests for undue and/or excess payments (e.g., due to the use of tariff preferences of Trade Agreements after clearance, due to a change in the national subheading of the Customs Tariff, among others), This often leads the Intendencias to conclude that importers have not been able to prove the use of means of payment.
This is a delicate issue, since the impossibility of proving the use of means of payment could generate, among others, the following customs and tax implications:
The payment of a fine equivalent to 30% of the FOB value of the goods.
The reshipment of the goods.
Impossibility of deducting costs or expenses for the determination of income tax.
Impossibility to make use of the tax credit of the General Sales Tax (IGV).
Impossibility of making compensations and requesting refunds (for example, of the Balance in Favor of the IGV Benefit, Drawback, for tax overpayments).
Although some of the guidelines approved in Informative Note No. 2024-0001 as well as certain criteria adopted in the aforementioned administrative procedures could be questionable, it is necessary that importers verify in a timely manner that the commercial, accounting and financial documentation supporting their international sale and purchase transactions of imported goods clearly evidences the adequate use of means of payment in such transactions in order to avoid the aforementioned contingencies.
For further information, please contact Julio Guadalupe (jguadalupe@estudiorodrigo.com) and/or Juan Acuña (jacuna@estudiorodrigo.com).
