CLOSE

LAWYERS

SEARCH BY ALPHABETICAL ORDER

SEE ALL LAWYERS
CLOSE

PRACTICE AREAS

Tax Newsletter – August 2020

COVID-19

REGULATIONS OF INTEREST

The Regulation of the General Sales Tax Act (IGV) was amended.- Through Supreme Decree No. 226-2020-EF, the chapter of the Regulation of the IGV Act  was amended regarding the return of tax to tourists with the purpose of improving the procedure. Thus, among other issues, it is established that the return may be made through various collaborating entities.

SUNAT must regulate the return procedure by means of a Superintendence Resolution as well as put into operation a checkpoint for the departure of goods purchased by tourists from the country, in which returns shall be requested. When both cases are met, the Supreme Decree shall enter into force.

Discretionary power not to sanction infringements related to electronic books.- Through Resolution of the Deputy National Superintendence of Internal Taxes No. 016-2020-SUNAT/700000, published on August 31, 2020, it is provided not to sanction administratively the tax infringements in numeral 10 of Article 175 of the Tax Code, linked to the keeping of electronic books. This criterion shall be applied in accordance with the following table:

It is specified that neither the return nor the compensation of the payments that had been made for sanctions shall proceed until August 28, 2020.

NATIONAL CURRENT ISSUES

Interest accrued during the pre-operating period.- Through Report No. 059-2020-SUNAT/7T0000 the Tax Administration has indicated that, for the deduction of expenses for interest accrued during the pre-operational period referred to in subsection g) of Article 37 of the Income Tax Law, the rule established to calculate the limit to the deduction of interest expenses provided for in paragraph 1 of subsection a) of the same Article (undercapitalization ratio or, from 2021, the ratio based on the Tax EBIDTA) is applicable.

Transfer of shares between related companies.- Through Report No.056 -2020-SUNAT/7T0000, a free transfer of shares issued by a Peruvian company carried out by a domiciled legal person in favor of a non-domiciled legal person that qualifies as a related party is analyzed. In this regard, it is concluded that:

i) For Income Tax purposes, the referred transfer generates taxed income for the transferor.

ii) The transfer in question is subject to the transfer pricing rules for the purposes of determining the tax base.

Suspension of payments on account of Income Tax in stability agreements.- Report No. 054-2020-SUNAT/7T0000 establishes that the rules set forth by Legislative Decree No.1471 for the suspension or reduction of payments on account of Income Tax (IR) of third category for the months of April to July of the taxable year 2020 are not applicable to taxpayers who have entered into legal stability agreements under Legislative Decrees No. 662 and 757 stabilizing the Income Tax regime prior to the granting of said Decree.

Compensation of the balance in favor of General Sales Tax (IGV).- Report No. 041-2020-SUNAT/7T0000 states the following:

i) When the unapplied balance of payments and withholdings from previous periods is deducted from the IGV payable, an automatic compensation is set up in accordance with number 1 of Article 40 of the Tax Code.

ii) Once the statute of limitations period has elapsed, the amounts not exhausted or not applied from such payments or withholdings, may not be deducted from the tax to be paid declared by the taxpayer.

Incomplete Statement of Final Benefit.- Report No. 048-2020-SUNAT/7T0000 states that if a legal entity does not comply with informing the identification of all its final beneficiaries on the Final Beneficiary Statement, the infringement provided for in paragraph 4 of Article 176 of the Tax Code when presenting the return incomplete or not in accordance with reality.

Mortgage Credits by Investment Funds.- Report No. 044-2020-SUNAT/7T0000 concludes that the income derived from portfolios of mortgage loans acquired by national investment funds from local financial entities through the modality of assignment of credits without recourse, which are attributed to their participants, domiciled and non-domiciled natural persons, constitute third category income.

CASE LAW

Residence certificate requirement.- Through Tax Court Resolution No. 03701-9-2020, the following mandatory compliance criteria is established:

“In the case provided for by the second paragraph of Article 76 of the Income Tax Law, in which there is no withholding, it is not appropriate to require that the Certificate of Residence be obtained, referred to in Supreme Decree No. 090-2008-EF, at the time of recording the expense or cost, in order to be able to apply the benefits contemplated in the CDI”.

Tax credit for highway maintenance expenses (RTF No. 03244-9-2019).- The Tax Court indicated that highway maintenance expenses comply with the principle of causality and, therefore, grant the right to a tax credit.

The collegiate concluded that these expenses are not within the case provided for in subsection d) of Article 72 of the General Mining Act since the highway infrastructure does not materialize. In addition, these expenses were incurred in order to ensure that income-generating activities are carried out regularly, since the highway is in poor condition and the transfer of goods, personnel and minerals would be difficult, which would prevent the normal development of the company, such expenses are therefore indispensable.