The Income Tax Law (LIR) Regulations are adapted to Legislative Decree No. 1624.- As from January 1, 2025, domiciled individuals who receive income from the indirect sale of shares are obliged to make payments on account for the referred second category income.
On February 16, 2025, Supreme Decree No. 021-2025-EF was published, which adjusts article 53-C° of the LIR Regulations in order to establish the provisions for compliance with the referred obligation. SUNAT may establish, by means of a Superintendence Resolution, the form and conditions for making payments on account.
The definition of Exchange Traded Fund (ETF) for Income Tax purposes is modified.-Interest and capital gains from, among others, the direct or indirect sale of securities that conform or underlie the Exchange Traded Fund (ETF), as well as from the sale of units of participation of Exchange Traded Funds or ETF, are not subject to income tax.
For the purposes of this exemption, by means of Supreme Decree No. 017-2025-EF, published on February 12, 2025, the definition of ETF provided in Article 8-C° of the LIR Regulations has been modified to include certain aspects that were provided in Article 184° of the Regulations of the Mutual Fund for Investment in Securities and its Management Companies, so that there is consistency in the definitions of ETFs contained in both regulations.
According to the new text of Article 8-C° of the LIR Regulations:
Trial qualifications of the Compliance Profiles are extended.- By means of Supreme Decree No. 018-2025-EF, published on February 14, 2025, the trial qualifications of the tax compliance profiles are extended from 4 (four) to 8 (eight).
In this way, taxpayers are granted additional time to familiarize themselves with the variables used for the assignment of the compliance profile and SUNAT is granted additional time to collect and process the observations, suggestions, recommendations and problems of the subjects to whom the referred test ratings are made.
Sale of Emission Reduction Certificates (“Carbon Bonds”), carried out by a Peruvian company.- Report No. 011-2025-SUNAT/7T0000 states that:
Acquisitions of goods and services with non-refundable funds by companies benefiting from the Entrepreneur MSME Fund of the Internationalization Support Program.- Report No. 022-2025-SUNAT/7T0000 establishes the following:
Deduction of Financial Expenses in a Reverse Merger (RTF No. 07909-1-2024).- As a result of a reverse merger, the acquiring company acquired as a liability the obligation to repay a loan granted to the acquired company to purchase shares of a third company, which, in turn, owned the acquiring company. However, the latter did not receive these shares as they were canceled as a result of the reverse merger. SUNAT (National Tax Administration Service) reinstated the acquiring company’s deduction of financial expenses, stating that, in this case, given the reverse merger, the principle of causality was not met for the acquiring company, nor had the economic and legal continuity that must exist in a corporate reorganization been proven.
For its part, the Tax Court indicated that the analysis of the causality of the expense should have been carried out considering the time at which the financing was taken and the conditions of the acquiring company, since it was the acquiring company that acquired the liability (not the acquiring company). Therefore, causality was established, since the loan was used to make a capital contribution and acquire shares in another company to continue generating taxable income; even more so since, thanks to the reverse merger, continuity was verified regarding the rights and obligations of the acquired company in the acquiring company. For these reasons, the Court decided to overturn the objection.
Commissions for sales of goods abroad made through non-resident commission agents do not qualify as use of services (RTF No. 01368-13-2024).- The Tax Court affirms that commissions for sales of goods abroad made through non-resident commission agents are not subject to VAT as use of services, since the initial act of providing the service does not take place in the country, and therefore cannot be considered consumed or used in the national territory. Consequently, the tax credit for this transaction is not applicable.
Duality of criteria: Precedent of mandatory observance of the Tax Court applied by SUNAT in the audit of the Income Tax of a fiscal year in which there was a report from the National Legal Superintendency with an opposing criterion (Cassation No. 16913-2024, Lima).- In this case, the taxpayer determined the Income Tax for the fiscal year 2010, computing the deduction of the losses for the exchange difference linked to operations that were not taxed with said tax, applying the criterion of Report No. 234-2009-SUNAT / 2B0000. However, during the 2017 audit, SUNAT reinstated the deduction of such exchange rate losses, applying the criteria of Mandatory Compliance RTF No. 8678-2-2016, according to which only exchange rate differences related to transactions that generate taxable income should be included in the tax assessment.
In this regard, the Fifth Transitional Chamber of Constitutional and Social Law of the Supreme Court affirmed that the duality of criteria provided for in Section 2 of Article 170 of the Tax Code regarding the treatment of exchange rate losses was established, as the Tax Administration relied on a Tax Court precedent contrary to a self-issued report in force in 2010.
