Regulatory Provisions of Law 30897, Act on the Promotion of Investment and Development of Loreto: By Executive Order 35-2019-EF, the regulatory measures of Law 30897 are established, which promotes public investment in Loreto through transfer of resources to the Regional Government. The regulatory provision establishes the amounts that will be transferred, the duties of the Board of Directors and the purpose of the resources, among other aspects.
New Telematic Tax Return Program (PDT) of the Selective Consumption Tax (ISC) applicable to casino games and slot machines: Superintendency Resolution 24-2019/SUNAT approves PDT 693 Casino Games and Slot Machines and ISC – Virtual Form 693, so that the obliged individuals may use them to file a monthly tax return and pay the tax. The use of PDT 693 is mandatory since February 1, 2019.
The Virtual Form for declaration and payment of second bracket income is modified: Superintendency Resolution 22-2019/SUNAT modifies Virtual Form 1665 – Second Bracket Income, which is used to pay second bracket income as provided for in Section 84-B of Income Tax Act.
Exclusion of the System for Repatriation of Capital: By Report 112-2018-SUNAT/7T0000, the National Superintendency of Tax Administration (SUNAT) points out that the exclusion of the System provided for in item c), Section 11 of Legislative Order 1264, for those persons who are public officials since 2009, includes the members of the Board of Directors of a specialized technical body, even when they serve such role in an unpaid manner and represent entities from the private sector, since they are included in the specific classification referred to in Section 52 of the Civil Service Act.
System for Repatriation of Capital: Report 106-2018-SUNAT/7T0000 analyzes the implications in the System for Repatriation of Capital when the individual under this system fails to comply with proving with documents the repatriation and investment of declared income, as established in item 12.3 of Section 12 of the Regulations. The National Superintendency of Tax Administration (SUNAT) provides the following conclusions:
Digital service of access to jurisprudence database: In Report 002-2019-SUNAT/7T0000, the National Superintendency of Tax Administration (SUNAT) analyzes the service provided by a foreign company (to which no Agreement to avoid Double Taxation (CDI) is applicable), which consists of the access to the national and foreign jurisprudence database through the Internet in favor of a domiciled individual that generates third bracket income and who has access to the database in national territory. In that regard, it concludes that:
Adjustment due to deflation for tax purposes (Cassation 17985-2015): By this Ruling issued by the Permanent Constitutional and Social Division of the Supreme Court, the appeals for cassation filed by the National Superintendency of Tax Administration (SUNAT) and the Ministry of Economy and Finance regarding the inadmissibility of the adjustment due to deflation for tax purposes are declared as UNFOUNDED.
The Supreme Court establishes that Law 28843 “specified” that the adjustment due to inflation was also applicable in retroactive deflation periods, so it must not be taken into account to calculate the Income Tax of fiscal years before it was effective.
Reimbursement of air tickets is part of air transport service (Cassation 9339-2015-LIMA): By this Ruling, the Permanent Constitutional and Social Division of the Supreme Court declared the Appeal for Cassation filed by the National Superintendency of Tax Administration (SUNAT) as UNFOUNDED, which claimed that the revenues obtained by the non-domiciled company for “reimbursement of air tickets” do not correspond to international air transport activities, so item d) of Section 48 of the Income Tax Act is not applicable.
The reimbursements of the dispute originate when the customers, who purchased an air ticket, refrain from using it and request the reimbursement of the amount paid. In that moment, the airline deducts from said amount service charges, cancelation fees or expenses incurred due to the cancellation of the air tickets, generating a residual amount in favor of the company.
The Division affirmed that such residual amounts do not represent an additional revenue or a revenue for compensation of the airline, but they do have a direct relationship with the air transport service; as a result, these revenues are part of the service and are subject to the rate of 1% provided for in Section 48 of the Income Tax Act.
Application of default interests outside the legal terms to solve challenges (Ruling N° 33 on Docket 3065-2014). The Sixth Division with Jurisdiction over Contentious and Administrative Matters applies the criteria contained in the Ruling 04082-2012-PA/TC issued by the Constitutional Court, which states that the collection of default interests is not admissible during the period exceeding the lawful terms to solve challenges, because that goes against the right to appeal to administrative headquarters.
It took 58 months for the Tax Court to solve the docket under appeal and it did not prove that the reason for the delay was attributable to the taxpayer. For that reason, the Division concluded that there was a violation to the right to a reasonable term. Therefore, payment for default interests was not enforceable, which were accrued during the processing of the administrative appeal that exceeds a term of 12 months, which was the time the Tax Court had to solve the issue.
Based on the foregoing, the Division ordered the Tax Administration to return the payments that were made in excess as default interests.
Accrual of expense due to brokerage service (RTF 1171-1-2018). The taxpayer hired a brokerage service to enter into a swap agreement with a third party, which was executed as a notarially recorded instrument in October 2013: The Tax Administration challenged this expense, claiming that the fee was accrued in fiscal year 2012, a year in which the company acquired a commitment in the future to enter into a swap agreement.
The Tax Court established that the expense was yielded in fiscal year 2013, when the first swap agreement was executed. The future commitment made in 2012 was only the result of contract negotiations, to which the broker was obliged based on its broker agreement, which was understood to be terminated with the execution of the swap agreement, the moment in which the corresponding compensation was paid.
If you wish, you can contact members of the team of tax lawyers of Rodrigo, Elías & Medrano Abogados.
This newsletter contains the objective description of legal provisions, institutional reports of the National Superintendency of Tax Administration (SUNAT), jurisprudence of the Tax Court and tax-related news. It does not contain the opinion of Rodrigo, Elías & Medrano Abogados on the matter, thus it cannot be considered as a source of interpretation or response to consultations.
