Tax Newsletter - January 2026

Discretionary power not to penalize violations related to the use of the Integrated Electronic Records System (SIRE).- Through Resolution No. 000005-2026-SUNAT/700000 of the Deputy National Superintendency of Internal Taxes, published on January 30, 2026, it is provided to expand the cases for the application of the discretionary power not to administratively sanction the violations classified in paragraphs 2 and 10 of Article 175 of the Tax Code, contemplated in the Annex to Resolution No. 000039-2023-SUNAT/700000 of the Deputy National Superintendency of Internal Taxes, when these occur in January, February, and March 2026.

Likewise, the deadline for correcting the generation of records and/or making the corresponding adjustments in the SIRE is extended until April 30, 2026.

In the case of taxpayers who are required to use the SIRE as of January 2026, the periods of April and May 2026 are included, provided that they correct the records by June 30, 2026.

Offsetting the Benefit Balance (SFMB) against Income Tax.- In Report No. 131-2025-SUNAT/7T0000, SUNAT states that the SFMB can be offset against tax liabilities for payments on account and income tax adjustments, even if the Benefit Declaration Program (PDB) - Exporters has not been submitted on time.

Amortization or deduction of the production cost of intangible assets with a limited useful life.- Report No. 104-2025-SUNAT/7T0000 concludes that the production cost of an intangible asset with a limited useful life generated internally by the company itself:

Debt forgiveness with a shareholder not domiciled in the country.- Report No. 002-2026-SUNAT/7T0000 analyzes the case of a Peruvian company that forgives a debt owed by its non-domiciled shareholder without having agreed to a capital increase, the issuance of new shares, or an increase in the nominal value of existing shares. In this regard, it concludes that:

Assessment of use and utilization to determine the configuration of the export of services (Cassation No. 00997-2025, Lima).- For the taxpayer, the technical consulting and advisory services provided to a foreign client were not subject to VAT as they qualified as an export of services since the services were directed abroad and the activities carried out in Peru (inspections, coordination, or visits to local factories) were ancillary and did not alter the fact that the use, exploitation, and economic benefit of the service took place outside the country.

For its part, SUNAT asserted that most of the services were performed and used in Peru, directly benefiting local factories through technical advice, quality controls, and supervision of the production process. Therefore, the requirement that the use, exploitation, or utilization of the service take place entirely abroad was not met, and SUNAT repaired the VAT. The Tax Court upheld the objection, adding that the analysis of the use should not be limited to the non-domiciled customer, but should consider that the services had a direct effect on the production process carried out in Peru.

The Fifth Transitory Chamber of Constitutional and Social Law of the Supreme Court has upheld the Tax Administration's position, stating that, based on the principles of territoriality and exclusive taxation in the country of destination, since the services provided were not used, exploited, and fully utilized abroad, they cannot be classified as an export of services.

The statute of limitations is suspended during the contentious proceedings that declare the challenged assessments null and void (Cassation No. 15230-2025, Lima).- The Fifth Chamber of the Supreme Court indicates that the statute of limitations for the Administration's power to determine tax liability is suspended, pursuant to Article 46 of the Tax Code, during the tax contentious proceedings that culminate in the declaration of nullity of the challenged assessments, given that this declaration does not affect the validity of the legal effects derived from the contentious proceedings, which were conducted in accordance with the law.

The Court held that a distinction must be made between a declaration of nullity that completely invalidates the tax audit procedure—and its resulting effects—and one that only affects certain administrative acts that must be reissued within the same audit. In the latter case, the declaration of nullity cannot invalidate the entire tax litigation procedure followed by the taxpayer, nor can it disregard the legal effects derived from it, such as the suspension of the statute of limitations.

Sale of Land by an Individual Generating Third-Category Income (RTF No. 11703-11-2025).- The Tax Court has indicated that to determine the tax treatment of capital gains generated by a land sale, the nature of the real estate transfer must be identified. This requires evaluating whether the taxpayer carried out prior actions aimed at increasing the property's value and facilitating its placement on the market, actions that demonstrate the development of a business activity and, therefore, the generation of a third-category gain. Thus, actions such as urban development permits, subdivision, or other similar preparatory acts constitute sufficient evidence of a business activity, as they reveal an organization and an economic purpose aimed at obtaining a profit.

In this case, both SUNAT (the Peruvian Tax Authority) and the Tax Court validated that each of the actions prior to the sale revealed the taxpayer's active involvement in the transformation and enhancement of the property's value, which constitutes a real estate transaction of a business nature generating third-category income.