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Tax Alert- October 2022

ALERT – TAX

SUNAT publishes a new version 2.0 of the catalog of High Tax Risk Schemes

 

The catalog here: High Tax Risk Schemes

In February 2020, SUNAT published – for illustrative purposes – the first version of the catalog of High Tax Risk Schemes including five (05) situations of diverse nature that, potentially, could give rise to the application of Rule XVI of the Preliminary Title of the Single Ordered Text of the Tax Code (General Anti-avoidance Clause).

In this second version, eight (08) new tax risk situations are added that could be combated by SUNAT under different legal tools (General Anti-avoidance Clause, Simulation, Transfer Pricing, Lack of Substance, Improper Deductions, among others). The hypothetical operations described are as follows:

E6: Concession assignment contract of an extractive industry with disguised payments in a resolved purchase and sale of shares.

E7: Sale and subsequent repurchase of vehicle under the guise of cancellation of said sale.

E8: Direct sale of shares of a Peruvian company concealed by a capital contribution and subsequent capital reduction.

E9: Transfer of benefits to preferential tax regime.

E10: Loan under the appearance of financial leasing.

E11: Intermediation in the sale of minerals through a company without economic substance.

E12: Indirect distribution of income of a non-profit entity under the guise of payments to a supplier abroad.

E13: Transfers of real estate to the shareholder and its subsequent lease by the latter to the same company (corresponds to the first case in which the SUNAT Review Committee has declared the application of the General Anti-avoidance Clause appropriate).

This catalog is not binding for taxpayers, but serves as a reference to know the type of operations that SUNAT considers as risky.

Taxpayers may demonstrate, in each specific case with the appropriate means of proof, that they have not incurred in such situations and that they have acted in accordance with the legal framework in force, in full exercise of their rights to contractual freedom and lawful tax planning, which is not prohibited by our legal system.