Creation of the Tax on remote gaming and remote sports betting.-
Law Nº 31557, Law that regulates the exploitation of remote games and remote sports betting, published on August 13, 2022, imposes a new tax on the referred games and bets, in the following terms:
I. The legal entities incorporated in Peru and the branches of legal entities incorporated abroad that exploit remote games or remote sports betting developed in technological platforms that require authorization from MINCETUR for their exploitation shall be taxpayers.
II. The tax shall be payable monthly and its rate shall be 12% of the taxable base, which shall be constituted by the monthly net income minus the maintenance expenses of the technological platform.
III. The monthly net income shall be equal to the difference between the gross income received in a month and the total amount of refunds and prizes delivered in the same period. In turn, the maintenance expenses are equivalent to two percent (2%) of the monthly net income.
IV. When the tax is paid by taxpayers domiciled in the country, it shall constitute a deductible expense for Income Tax purposes.
V. SUNAT, by a superintendence resolution, shall establish the form, term and conditions under which the tax return and payment of the tax shall be made.
VI. The regime of infractions and applicable tax penalties is regulated by the provisions of the Tax Code.
VII. The Law shall become effective 60 days after the publication of its Regulations in El Peruano. The tax shall be applicable as from the first calendar day of the month following the effective date of the Law.
The General Sales Tax (IGV) rate for restaurants, hotels and tourist accommodations is reduced.
Through Law No. 31556, published on August 12, 2022, the IGV rate is reduced from 18% to 8%, under the following conditions:
I. The reduction shall benefit micro and small companies whose main activity is: restaurants, hotels, tourist accommodations; and are subject to VAT.
II. Income from sales or services rendered by the aforementioned activities must represent at least 70% of their income.
III. Companies that make up an economic group that together do not meet the aforementioned characteristics shall not be included, nor those that are economically linked to other companies or national or foreign economic groups.
IV. The aforementioned reduction shall be applied from September 1, 2022 until December 31, 2024.
V. The Executive Power has a term of 60 days to issue the regulatory standards.
Tacna Free Trade Zone: Electronic commerce.-
Law No. 31543, published on August 4, 2022, amends Law No. 27688, Law of Free Trade and Commercial Zone of Tacna, in order to establish new provisions to this regime, related to electronic commerce:
I. Natural persons may acquire in the Tacna Commercial Zone, through electronic commerce, the goods consigned in the purchase franchise in force, in the amounts, quantities or volumes determined by Supreme Decree Nº 202-92-EF.
II. Until December 31, 2027, the operations corresponding to electronic commerce shall not be taxed with the IGV, IPM and ISC and other taxes created and to be created that tax the sales operations, with the exception of the Income Tax.
III. The companies providing fast delivery services are responsible for the transfer of the goods, in accordance with the provisions of the customs procedure related to the special import regime for fast delivery shipments. Within 30 days, SUNAT must adapt said procedure to the special electronic sales modality in the Tacna Commercial Zone.
NATIONAL CURRENT ISSUES
Clarifications to the Electronic Issuance of Receipts System.-
By Report Nº 060-2022-SUNAT/7T0000, SUNAT points out the following:
I. The taxpayer who is an electronic issuer as determined by SUNAT by virtue of the provisions of Superintendence Resolution Nº 279-2019/SUNAT, has the possibility of issuing an invoice in printed format when, for reasons not attributable to him/her, he/she is unable to issue the corresponding electronic invoice, or when its tax domicile and/or annex establishment declared in the RUC is located in a geographic area with low or no connection to In such cases, it must comply with submitting the informative affidavits referred to in Article 4° of Superintendence Resolution N° 300-2014/SUNAT.
II. Given that Superintendence Resolution N° 279-2019/SUNAT does not reach the subjects that as of December 31, 2019 appear in the RUC subject to the New RUS, it is possible to sustain that they may continue issuing sales slips in printed format.
CASE LAW
Disguised credit transactions between related parties (Ruling Nº 2874-1-2021).-
In 2008 and 2009 the taxpayer received a direct transfer for US$ 14,000,000 from one of its related companies abroad, in order to cancel several debts. In 2011, said foreign company formalized its credits with the taxpayer through an interest-free loan agreement with a grace period of 6 years, which it later assigned to the main shareholder of both.
Subsequently, in 2012 the taxpayer entered into two loan agreements with a foreign bank for US$ 7’000,000 each, with an annual interest of 7% and maturity one in November 2017 and the other in November 2015. The loans were destined to the prepayment of the debt with its main shareholder, who on the date he received the payments transferred the amounts received to an account held in the same bank (another related company).
The taxpayer withheld income tax on the interest paid to the foreign bank in 2015 at the rate of 4.99% provided for in paragraph a) of Article 56 of the Income Tax Law (LIR).
For its part, SUNAT claimed that the withholding tax must have been withheld at the 30% rate provided for in paragraph j) of the aforementioned Article, since the loan was a loan between related parties disguised through the intervention of a foreign bank. In addition, it is not reasonable that a loan was amortized with its related party with such advantageous conditions and then a more onerous bank loan was acquired.
The Tax Court, after analyzing the case, stated that the taxpayer did prove that the structure or legal relationship adopted for the cancellation of the debt it had with its related party coincides with the economic event carried out, i.e., the disbursement and subsequent payment of the loan was evidenced. Likewise, it concluded that the taxpayer stated that the reason for which it decided to cancel the debt it had with its related party and acquire it with a financial entity was to avoid a greater tax burden given the upcoming entry into force of Legislative Decree Nº 1112.
Finally, the ruling body pointed out that the Administration did not prove that the credit observed had been granted for the purpose of concealing a credit operation between related parties and, on the contrary, from the proceedings it has been concluded that the appellant has proven that the structure or legal relationship adopted with its creditor coincides with the economic event that the parties intend to carry out. Consequently, it revoked the objection.
Income Tax: Application of IAS 38 for the recognition of the right of goodwill as an intangible asset (Ruling Nº 3736-1-2021).-
The Tax Court analyzes whether the non-compliance with the criteria of IAS 38 for the qualification as intangible asset of a right of goodwill entails the disregard of its amortization for Income Tax purposes.
In this regard, it points out that although IASs are not legal standards or a source of tax law and therefore are not binding, it is valid to use the concepts provided by IASs for a full understanding of facts and transactions that are accounted for and are related to the rules for determining income tax, This, in turn, is legally supported by the provisions of Rule IX of the Preliminary Title of the Tax Code, which establishes that rules other than tax rules may be applied in matters not provided for in said code or in other tax rules, provided that they do not oppose or distort them.
In this sense, the Court concludes that, since the LIR allows in some cases the deduction of the price paid for the acquisition of an intangible asset, a concept that is broadly developed by IAS 38, it is valid that SUNAT has resorted to this accounting standard to understand the criteria used for the recognition of an intangible asset, since this aspect has not been addressed by the aforementioned law or its regulations. In addition, it affirms that the procedure of the Administration does not imply a lack of due motivation of the administrative act since this is materialized in the expression of the factual and legal grounds of the objection formulated, which were developed by SUNAT in a correct manner, having only resorted to IAS 38 in a supplementary manner.
