The Regulations of Law No. 31969, which approved tax benefits for several industrial sectors, are approved. Supreme Decree No. 140-2024-EF, published on July 27, 2024, approves the regulatory provisions of the special tax regime created by Law No. 31969 to promote the development and economic reactivation in the textile, apparel, agricultural and irrigation, agro-export and agro-industrial sectors.
I. Regarding the reinvestment of profits for the textile and apparel sectors, it is established that:
II. Regarding the accelerated depreciation for the textile and apparel sectors, it is established that:
III. Regarding the additional deduction for hiring workers of all the sectors included in the Law, the procedure for the calculation of such benefit is established.
The Regulation that establishes the financial information to be provided to SUNAT for the automatic exchange of information, approved by Supreme Decree N° 256-2018-EF.– On July 27, 2024, Supreme Decree N° 139-2024-EF has been published, which modifies the referred regulation in order to implement some recommendations made by the OECD Global Forum on Transparency and Exchange of Information for Tax Purposes, as well as to collect a significant part of the regulation of the due diligence procedures to be applied by financial institutions.
The main amendments relate to:
1. The information that financial institutions must report to SUNAT, as well as the financial accounts whose information must be reported.
2. The due diligence procedures to be applied by financial institutions to identify reportable accounts among pre-existing low-value accounts of natural persons.
3. The due diligence procedures to be applied by financial institutions to redetermine the status of financial accounts as reportable when there is a change of circumstances.
The obligation to state RUC and Company Name in advertising is eliminated.- Through Law No. 32080, published on July 2, 2024, the obligation to state the RUC number and the name or company name in all documentation through which goods or services are offered, including cases in which the offer has used digital platforms of electronic commerce, social networks, web pages, advertising emails, mobile applications, among others, has been eliminated.
The infraction typified in numeral 9 of article 173° of the Tax Code, which fined the taxpayer who did not include such information in the referred communications, is also repealed.
New term of validity of the Certificates of Residence: By means of the Resolution of Superintendence N° 141-2024/SUNAT, published on July 14, 2024, it is established that:
Residence Certificates issued by SUNAT will now be valid indefinitely, leaving the previous term of four (4) months without effect.
The new version of Virtual Form 615 (ISC) is approved – Through Superintendence Resolution N° 0147-2024/SUNAT, published on July 27, 2024, version 5.6 of the ISC PDT – Virtual Form N° 615 has been approved, which must be used as of August 1, 2024, regardless of the period to which the return corresponds, even for substitute or rectifying returns.
The use of the Integrated System of Electronic Records is postponed – On July 21, 2024, Resolution of Superintendence No. 000145-2024/SUNAT was published, the purpose of which is to postpone from August 2024 to January 2025, the date from which the Register of Sales and Income and the Register of Purchases must be kept through the SIRE.
In this regard, the following has been provided:
1. Subjects who, as of July 31, 2024, are obliged to keep the Purchase and Sales and Income Records, who belong to the RER or the MYPE Tax Regime and are not included in items a), b) and c) of Resolution N° 000112-2021/SUNAT, must use the SIRE as of August 2024.
2. Subjects that comply with the requirements set forth in Superintendence Resolutions N° 286-2009/SUNAT and 379-2013/SUNAT and acquire the obligation to keep the Purchase and Sales and Income Records electronically in the months of August, September, October, November or December 2024, must start using SIRE in these same periods.
As from January 2025, those taxpayers who, as of December 31, 2024, are obliged to keep the Sales and Income Register and the Purchase Register, and are not included in the previous points, will use it.
The aim is to create a new electronic system for the proceedings during the appeal procedure in the Tax Court.- On July 17, 2024, Ministerial Resolution No. 228-2024-EF/10 was published, which approved a regulatory project with the following characteristics:
I. As from September 1, 2024, a new Portal would be available on the Tax Court’s website, which will be accessed with a user name and password created by the taxpayer himself/herself.
II. It will only apply to appeals that come from an electronic file, so it will not be used for procedures that come from:
III. Only files in PDF/A format, with digital signature or scanned signature will be allowed. If this requirement is not complied with, the documents will not be part of the file and, therefore, will not be considered at the time of resolution.
IV. When documents are filed between 00:00 hours and 23:59 hours of a business day, they will be considered as filed on that day.
It is intended to incorporate electronic appeal files to SUNAT’s Integrated Virtual File System (SIEV) – Draft Rule No. 002 proposes to amend the rule that approved the SIEV in order to incorporate electronic appeal files to said system.
It is intended that through said system or through the SUNAT – Virtual Parts Table (MPV – SUNAT), appeal briefs, as well as other briefs and requests related to said files, may be filed when the admissibility is in process or when the order of the Tax Court is pending compliance.
Application of CAN Decision No. 578 to digital services – Report No. 049-2024-SUNAT/7T0000 states the following regarding income obtained by companies domiciled in CAN member countries other than Peru for services rendered from such countries to Peruvian companies:
I. The services consisting of technical support to the client in network and software maintenance that includes technical assistance in network, provided through digital means (online access), and that require human intervention as an essential element, whose definition is taken from Article 4-A of the LIR Regulations, may qualify as professional services, technical services or technical assistance, according to the definitions of the Court of Justice of the CAN and, therefore, the companies that provide such services would be applicable to the treatment provided in Article 14 of the aforementioned Decision.
II. The characteristics of the services that qualify as digital, different from those of point 1, must be evaluated in each specific case in order to determine whether Article 14 or Article 6 of Decision 578 is applicable.
In Report No. 050-2024-SUNAT/7T0000, the SUNAT pronounces on the option to choose the compensation system provided for in Article 50 of the LIR, stating the following:
1. In the Annual DJ of the 3rd category IR that determines tax loss for the first time, the loss compensation system may be chosen even if it is filed extemporaneously.
2. The referred election of system may also be made in the rectifying tax return that for the first time determines the existence of tax loss, as long as such tax return has been effective.
3. When a taxpayer declares a tax loss in years 1 and 2, opting in the first DJ to exhaust it in the 4 following years; but then, on the occasion of an audit, recognizes net taxable income in year 1 and files a rectification for year 2; he may choose his loss offset system in such rectification.
Selective Consumption Tax (ISC) paid on imported oil – With Report No. 047-2024-SUNAT/7T0000, it is stated that the ISC paid by a producer for the import of gasoline and other fuels derived from oil, which are subsequently sold in the domestic market without any variation in them, can be recognized as a computable cost for income tax purposes, in accordance with the provisions of Article 20 of the Income Tax Law (LIR).
Limit on deduction of vehicle expenses – By means of Report No. 046-2024-SUNAT/7T0000, it is stated that the limitation set forth in paragraph r) of Article 21 of the LIR Regulations is not applicable to electric vehicles that qualify in categories A2, A3 and A4 assigned to management, representation and administration activities.
Application of the Court’s Glossary of Rulings when the basis of the objection in the claim is modified (Cassation No. 30245-2023, Lima) – The Fifth Constitutional and Social Transitory Chamber of the Supreme Court affirms that when SUNAT modifies the basis of the objection when resolving the claim, the “Glossary of rulings used in the resolutions of the Tax Court” must be applied, in which section 76 establishes that, in this case, the resolution appealed must be declared null and void and the value must be left without effect.
With this, the Supreme Court does not accept SUNAT’s position according to which, in cases of change of basis, the Tax Court should declare the nullity of the appealed resolution and allow SUNAT to resume the tax claim procedure and issue a new ruling (this time, considering the original basis of the objection).
Inapplication of the Peru-Chile DTA for not qualifying the taxpayer as “beneficial owner” (Case No. 34212-2023 Lima). The case file analyzed the case of a Chilean company that rented (as lessor) telecommunication equipment to its related company domiciled in Peru (as lessee), in order to verify whether the former qualified: (i) as a “beneficial owner” for the purposes of the DTA, proceeding to withhold income tax in Peru, but at the maximum rate of 15% provided in such agreement (taxpayer’s position); or, (ii) as an “instrumental company”, not being applicable in that case the DTA and proceeding to withhold income tax at the rate of 30% provided in the Peruvian regulation (SUNAT’s position).
Having analyzed the characteristics of the operation, as well as of the Chilean company and its capacity to participate in the operation, the Fifth Chamber of the Supreme Court determined that it did not qualify as a beneficial owner, but as an “instrumental company”. This, since, according to what the Court was able to determine, the Chilean company: i) did not have an organizational structure with defined tasks, lacking personnel and real estate or other assets necessary for the development of the economic activity of equipment leasing; ii) did not have operating expenses that would show that its business activities were carried out in Chile; and iii) lacked economic substance, operating and financial capacity.
Based on these elements, the Fifth Chamber of the Supreme Court also considered that it was not appropriate to apply the DTA with Chile, thus confirming SUNAT’s objection.
Amounts received on the occasion of an agreement for the incorporation of a company upon termination (RTF No. 04070-2-2024) – The Tax Court affirms that the amounts received by an employee by virtue of an agreement for termination by mutual consent are subject to fifth category income tax, since they are not indemnification in nature but qualify as “economic incentives” granted for the termination of the labor relationship because they are at the employee’s free disposal.
In addition to this, it is specified that, in the case of the benefit granted for the incorporation of a company, the tax exemption – provided for in article 18 of the LIR – is only applicable if it is proven that the terminated worker effectively incorporated a company, since it was a requirement established in the company’s policy.
