REGULATIONS OF INTEREST
New subjects required to register with the RUC.- Through the Resolution of Superintendence N° 130-2024/SUNAT, published on June 30, 2024, The Superintendency Resolution No 210-2004/SUNAT is amended to provide that: i) natural persons or undivided estates domiciled in the country shall be required to register with the RUC, which own five (5) or more properties, located in the country or abroad, whose value together exceeds one hundred and twenty-six 126 ITU; ii) natural persons or undivided estates, domiciled in the country, who own shares or interests in companies incorporated in the country or abroad, whose total value is greater than 100 ITU; and, (iii) natural persons who make acquisitions of goods subject to the IGV levy regime exceeding the limit of 10 ITU.
Furthermore, it is stated that natural persons or undivided estates domiciled in the country will no longer be exempt from the obligation to register with the RUC, who receive interest exclusively on deposits made with the undertakings of the financial system (exception provided for in Article 3 of the Superintendence Resolution No 210-2004/SUNAT), when they have a balance in one account or balances in several accounts that together exceed 300 ITU.
Subjects who meet the above conditions on 30 July 2024 must register with RUC before 30 September 2024.
Modify the Structure of the 2023 Local Transfer Price Report. – By Superintendence Resolution N° 123-2024-SUNAT, published on June 14, 2024, information is incorporated into the Local Transfer Pricing Report Affidavit, according to the following detail:
i) The Descriptive Structure of the Local Report is modified to present the following technical support:
The NFKP does not adequately reflect the economic/financial reality of the transaction (showing the distortion in quantitative terms).
Independent third party transactions are not comparable even with comparability adjustments, thus reducing the reliability of PCNC use:
Show the qualitative and quantitative effect that leads to a loss of reliability when using comparators.
Attach an analysis of the functions, assets and risks that support the selection of a non-CNP method.
The analysis should demonstrate that comparability has been improved by applying the proposed method.
ii) This change applies to the export or import of «commodities» listed in Annex 2 of the LIR Regulations subject to transfer prices; and, where a valuation method other than the Uncontrolled Comparable Price (NPMP) is used.
iii) This new obligation is applicable from the submission of the 2023 Local Report, which began on June 18, 2024.
The fixed amount of the Selective Consumption Tax (ISC) is modified. – By Supreme Decree No. 115-2024-EF, published on 30 June 2024, the new Appendix IV of the IGV and ISC Law is amended, establishing that from July 1, 2024 the fixed amount of the ISC applicable to beers will be S/ 2.42 per liter.
Amendment to the Law of the Amazon.- On June 18, 2024, the Law N° 32063 has been published, which amends Law No. 27037 – Law on the promotion of investment in the Amazon – to provide that, for the application of the exemption from IGV and the special tax credit, companies providing electricity distribution and marketing services in the Madre de Dios department, as well as in certain districts of the Cajamarca departments, Cusco, Pasco, Puno, Huancavelica, La Libertad and Piura shall not comply with the requirements set out in the Regulation of Law No. 27037, which takes into account the following: i) the address of the head office; ii) registration in the Public Registers; and iii) that its assets or activities are located and carried out in the Amazon, not less than 70% of the total assets or activities.
The law is already in force and the executive must adapt the above-mentioned regulation in the coming days.
Discretion not to penalize infringements related to the issuance of Electronic Referral Guides (GRE). – By the Resolution of the National Superintendency of Internal Taxes N° 025-2024-SUNAT/700000, published on 30 June 2024, the administrative sanctions are not imposed for offences defined in paragraphs 5 and 9 of article 174 of the Tax Code, detected from 1 July 2024 to 31 December 2024, related to the issuance of ERGs and referral guides in printed or imported formats by an authorised printing company.
List of entities exempted from the IGV.- With the Supreme Decree N° 109-2024-EF, published on 23 June 2024, the list of entities that may be exempted from the collection of IGV referred to in article 11 of Law No. 29173 is hereby approved. This list shall be published on the portal of the Ministry of Economy and Finance no later than the last working day of June 2024 and shall apply from 1 July 2024.
DRAFT LAW
It is proposed to create an exceptional income tax regime for the regularisation of unreported income generated until 31.12.2022. – On 12 June 2024, the Plenary of Congress adopted the Opinion on Bill No. 7536/2023-CR which establishes a new «amnesty» regime in the following terms:
i) The Scheme shall apply to income taxed with the Income Tax not declared (or for which the respective withholding was not made) that had been generated until 31.12.2022.
Unsubstantiated increases in assets generated up to the same date and non-regularized incomes under Legislative Decree N° 1264 will also be eligible for this new «amnesty».
ii) Natural persons, undivided estates and matrimonial societies that chose to be taxed as such, domiciled in Peru in any year prior to 2023, may benefit from the Regime (except for those who are in some exclusion scenario).
iii) The taxable amount shall be constituted by the net income received up to 31.12.2022 which qualifies as «undeclared income». Such income need not be represented by money, property or entitlement to the date of entry into the Scheme.
iv) The fees to be charged are as follows:
General rate: 10 %
Repatriated Money Rate: 7%
v) The sworn declaration may be submitted until 29 December 2024. The SUNAT shall regulate the form and conditions by means of a Superintendency Resolution.
vi) The draft law should be promulgated by the executive branch and published in El Peruano in the next few days. The Executive would then have 60 calendar days to publish the corresponding regulation.
NATIONAL CURRENT ISSUES
Services that qualify as digital for the Income Tax (IR). – With the Report N° 039-2024-SUNAT/7T0000, it is established that they qualify as digital services and, therefore, will be taxed with the IR, the following services which are not essentially automatic:
The technical support provided online through an electronic platform, through which the users of the service raise queries that are answered by technicians using the same platform or by e-mail.
Consultancy services provided by a person via video conference or e-mail; to the extent that they are used economically, used or consumed in the country.
Compliance with the Exchange of Information. – In the Report N° 026-2024-SUNAT/7T0000, it is stated that for the purpose of the obligation of SUNAT provided for in paragraph 4 of article 86 of the LIR Regulation, by sending annually to the TPM a list of countries or territories that have complied with and not complied with the exchange of information, or have complied in a limited way; as well as cases where it has detected a lack of transparency at the legal level, The administrative and regulatory functions referred to in paragraph 1 b) of the first paragraph of the same article, must:
i) The reference to information exchange includes modalities for on-demand, automatic and spontaneous exchange.
ii) The absence or lack of transparency in a legal, regulatory or administrative operation in a particular country or territory implies that a country or territory has (secret) reserves around: a) the tax system applicable in its jurisdiction; b) information of subjects operating in its jurisdiction; and, c) transactions carried out by entities operating in its jurisdiction. And that, as a result, tax administrations in other jurisdictions cannot access such information, thus facilitating international tax avoidance or evasion.
Precision of the Law N° 31940 that extended term for Annual DJ . – By means of the Report N° 041-2024-SUNAT/7T0000, the SUNAT specifies that the extension of the deadline, provided for in Law N° 31940, for the presentation of the Annual DJ and for the payment of the IR of the year 2023 is not applicable to companies (both MYPES of the general regime and MYPE Tributario) The Commission has not yet taken any action to ensure that the Fund’s revenue from the ITU is not exceeded.
CASE LAW
Cassation No. 26385-2023 Lima (Delimits the scope of the Binding Precedent in Cassation No. 16618-2023 Lima). As reported in the January 2024 Bulletin, the Cassation No. 16618-2023 Lima established as a binding precedent the mandatory nature of casatory sentences in the following terms:
The castey judgments that this Supreme Court issues, by virtue of their binding force, they have a degree of binding force and authority which derives from the level of that issuing court and the area of jurisdiction in which they apply, This means that they must be followed by the courts of merit in similar cases.
Caslative judgments create a legal precedent that sets a standard to be applied by other courts, as well as administrative tribunals and the public administration, The Court of Justice has also been called upon to give its opinion on the matter.
By the recent Cassation N° 26385-2023 Lima dated 13 March 2024, the Fifth Chamber of Constitutional and Transitional Social Law of the Supreme Court has restricted the interpretation of the precedent set in Cassation No. 16618-2023 Lima, after noting the breadth of the rules contained in it and its excessive invocation by litigants. To this end, it has specified that only casatory judgments which constitute case-law or judicial precedent may be linked to general scope, whereas the rest of caslative judgments only have formal normative force (between the parties to the proceedings).
In this connection, the Chamber notes that the grounds for the judgment constitute a doctrine of case law when they are based on legal lines along which the closing body draws its The Commission has already taken a number of steps to ensure that the Community’s legal framework is in place. And that the binding judicial precedent is the manifestation of a technique of normative innovation, The reasons for the decision are generally valid because of the soundness of the content of the decision and the body issuing it.
It should be noted that the Supreme Court has maintained the obligation for administrative courts and public administration to comply with castey sentences as binding case law or precedent.
Deduction of expenditure for christmas baskets and bonuses (RTF No. 05123-2-2023). – The Tax Court notes that the expenditure on Christmas baskets in favour of cleaning and security staff whose employment has been outsourced, is not deductible because the beneficiaries are not on the company’s payroll.
However, it allows the deductibility of baskets and bonuses given to practitioners because, although there is no employment link with the company, The Commission has already published a report on the situation in the Member States.
