REGULATIONS OF INTEREST
New provisions on the sending of electronic invoices and the expiration of monthly tax obligations.- Through Superintendence Resolution Nº 117-2022/SUNAT, published on June 30, 2022, several provisions are adapted to the provisions of Emergency Decree Nº 016-2022, which extended until December 31, 2022 the term for sending electronic invoices and electronic fee receipts to 4 calendar days, calculated from the date of issuance.
I. The entry into force of paragraphs 3.1, 4.1 and 5.1 of Articles 3, 4 and 5.1 of Superintendence Resolution Nº 193-2020/SUNAT, which provide for the reduction of the term for sending the electronic invoice and related note to SUNAT and the Electronic Services Operator, is extended until January 1, 2023.
II. The conditions (provided for in Superintendence Resolution Nº 150-2021/SUNAT) to be complied with for sending the electronic invoice and its related note for the period from December 17, 2021 to December 31, 2022 are detailed.
III. The deadlines for compliance with tax obligations corresponding to the months from July to December 2022, established in Annex I of Superintendence Resolution Nº 189-2021/SUNAT, are modified. According to the following detail:
| Expiration date according to the last digit of the RUC (taxpayer identification number) | |||||||
| Month to which the obligation corresponds | 0 | 1 | 2 and 3 | 4 and 5 | 6 and 7 | 8 and 9 | Good taxpayers (0,1,2,3,4,5,6,7,8,9) |
| July 2022 | August 16, 2022 | August 17, 2022 | August 18, 2022 | August 19, 2022 | August 22, 2022 | August 23, 2022 | August 24, 2022 |
| August 2022 | September 15, 2022 | September 16, 2022 | September 19, 2022 | September 20, 2022 | September 21, 2022 | September 22, 2022 | September 23, 2022 |
| September 2022 | October 17, 2022 | October 18, 2022 | October 19, 2022 | October 20, 2022 | October 21, 2022 | October 24, 2022 | October 25, 2022 |
| October 2022 | November 15, 2022 | November 16, 2022 | November 17, 2022 | November 18, 2022 | November 21, 2022 | November 22, 2022 | November 23, 2022 |
| November 2022 | December 15, 2022 | December 16, 2022 | December 19, 2022 | December 20, 2022 | December 21, 2022 | December 22, 2022 | December 23, 2022 |
| December 2022 | January 17, 2023 | January 18, 2023 | January 19, 2023 | January 20, 2023 | January 23, 2023 | January 24, 2023 | January 25, 2023 |
IV. The maximum delay dates for the registration of purchases and sales and income corresponding to the months from July to December 2022, established in Annex II of Superintendence Resolution No. 189-2021/SUNAT, are modified. According to the following detail:
| Maximum date of arrears according to the last digit of the RUC | |||||||
| Month to which the obligation corresponds | 0 | 1 | 2 and 3 | 4 and 5 | 6 and 7 | 8 and 9 | Good taxpayers (0,1,2,3,4,5,6,7,8,9) |
| July 2022 | August 15, 2022 | August 16, 2022 | August 17, 2022 | August 18, 2022 | August 19, 2022 | August 22, 2022 | August 23, 2022 |
| August 2022 | September 14, 2022 | September 15, 2022 | September 16, 2022 | September 19, 2022 | September 20, 2022 | September 21, 2022 | September 22, 2022 |
| September 2022 | October 14, 2022 | October 17, 2022 | October 18, 2022 | October 19, 2022 | October 20, 2022 | October 21, 2022 | October 24, 2022 |
| October 2022 | November 14, 2022 | November 15, 2022 | November 16, 2022 | November 17, 2022 | November 18, 2022 | November 21, 2022 | November 22, 2022 |
| November 2022 | December 14, 2022 | December 15, 2022 | December 16, 2022 | December 19, 2022 | December 20, 2022 | December 21, 2022 | December 22, 2022 |
| December 2022 | January 16, 2023 | January 17, 2023 | January 18, 2023 | January 19, 2023 | January 20, 2023 | January 23, 2023 | January 24, 2023 |
By means of Superintendence Resolution Nº 123-2022/SUNAT, published on July 12, 2022, several rules that regulate the electronic issuance of remittance advices are modified in order to incorporate new requirements to facilitate controls; to establish the electronic documents that support the transfer of goods; as well as to designate, in a progressive manner, the subjects that acquire the quality of electronic issuers of remittance advices. Mainly, we have the following:
I. In the case of the transporting-transportation waybill, the number of the single circulation card or the special vehicle qualification certificate must be included when there is an obligation to register the vehicle.
II. Annex X of the aforementioned regulation has designated as electronic issuers of the Remittance – Sender’s Guide (GRE) the subjects that transfer goods for imports made. This designation shall be effective from January 1, 2023 only with respect to the transfer of imported goods from ports or airports or storage terminals to the importer’s facilities, when no exit ticket is used and they correspond to imports processed with DAM or DS.
III. Likewise, from July 1, 2023, the subjects that from December 31, 2022 have the status of Major National Taxpayers are designated as electronic issuers of the GRE. This designation covers all transactions for which the GRE must be issued.
IV. On the other hand, the Resolution provides that the parties designated as electronic issuers of the GRE may only use the SEE – SOL or the SEE – of taxpayers to generate such documents. In other words, the SEE (Electronic Services Operator) may not be used.
V. Finally, Article 1 of the Resolution introduces amendments to the Payment Voucher Regulations, as well as to Annex Nº 1 of Superintendence Resolution Nº 097-2012-SUNAT which regulates the requirements of the electronic invoice issued through the SEE-OSE, among other provisions. These amendments came into effect on July 13, 2022.
DRAFT LEGISLATION
The purpose of Draft Bill Nº 2546/2021-CR is to amend Articles 4, 9, 30 and 31 of the Value Added Tax Law in order to levy the tax on the provision of digital platform services by suppliers not domiciled in the country.
I. The tax obligation shall arise at the moment the remuneration for the service is received either in the provider’s accounts or through the use of means of payment through the companies of the financial system.
II. The entities of the financial system shall be responsible for the withholding, declaration and payment of the tax.
NATIONAL CURRENT ISSUES
Joint Venture Agreement.- It is recalled that Legislative Decree Nº 1541 incorporates, from January 1, 2023, paragraph i) in Article 24-A of the LIR, according to which the participation (results) paid by the associate to the associate within the framework of a joint venture agreement qualify as taxable dividends.
In this context, SUNAT, through Report Nº 046-2022-SUNAT/7T0000, pronounces on the application of Superintendence Resolution Nº 042-2000/SUNAT to the income generated by joint ventures until December 31, 2022. It must be recalled that said Resolution of Superintendence, which adopted the rules on the sworn statement for business collaboration contracts, stipulated that the associate declares the participation as third category income and the associate deducts it as an expense.
In this regard, in the Report in question, SUNAT points out that Ruling Nº 2398-11-2021, of mandatory observance, indicated that Superintendence Resolution Nº 042-2000/SUNAT constituted a transitory regime applicable only to the taxable year 1999 and to joint venture contracts existing as of January 1, 1999, and therefore its application cannot be extended to other cases.
Consequently, and in application of the aforementioned mandatory case law, SUNAT concludes the following:
I. It is not appropriate to consider the income obtained by the associate until December 31, 2022 as business income, since they qualify as dividends or any other form of profit distribution.
II. The payment of the associate’s participation by the associate does not constitute a deductible expense for the associate for income tax purposes.
Export of services: Sale of products abroad – In Report No. 052-2022-SUNAT/7T0000, the case of a company domiciled in Peru hired by a foreign company to facilitate the sale abroad of products that are finally purchased by customers domiciled in Peru is analyzed. Such sale is remunerated on the basis of a percentage of the amount effectively charged by the foreign company.
In this regard, SUNAT affirms that the service rendered described constitutes export of services to the extent that they comply with the requirements set forth in items i and ii of paragraph b) of numeral 1 of Article 9 of the Regulations of the General Sales Tax and Selective Consumption Tax Law, as well as with all other requirements established by the fifth paragraph of Article 33 of the aforementioned law.
CASE LAW
Application of the principle of benign retroactivity in the infraction typified in numeral 1 of Article 178 of the Tax Code (Judgment rendered in case Nº 7085-2019).- In this case, on October 9, 2017, SUNAT notified the taxpayer several fines for the infraction of numeral 1 of Article 178 of the Tax Code, for having declared balances in favor of the IGV of 2012 in excess, without this generating omitted tax. For its part, the company requested that the fines be declared null and void in application of the principle of benign retroactivity, due to the fact that Legislative Decree Nº 1311, published on December 30, 2016, modified numeral 1 of Article 178 of the Tax Code, to establish that the infraction only exists when there is direct incidence on the payment of the tax obligation, thus ruling out its application, for example, when credit balances are decreased without generating omitted tax.
However, the Administration and the Tax Court held that this principle was not applicable in tax matters, since, based on a joint interpretation of the provisions of Article 168 of the Tax Code and Article 103 of the Constitution, the law in force at the time of the commission of the infraction must be applied.
The Sixth Chamber specialized in Contentious-Administrative Matters with Sub-specialty in Tax and Customs concluded that, in application of Article 168 of the Tax Code, it was appropriate to leave without effect the fine resolutions issued because, at the date of issuance of Legislative Decree No. 1311, there was no proceeding in process or execution associated with the commission of the infraction, so that the modification introduced by said Legislative Decree must be considered by the Tax Administration.
Satellite service provided by foreign companies does not constitute Peruvian source income (Cassation Nº 13159-2016-LIMA).- In this ruling it is discussed whether the satellite capacity services provided by non-domiciled geostationary satellite operators to Peruvian telecommunications companies qualify as Peruvian source income and, therefore, are subject to income tax.
The Permanent Constitutional and Social Law Chamber affirmed that, in interpretation of Article 9 of the Income Tax Law, the income obtained by the satellite service described above is not obtained by the assignment in use of goods, nor produced by goods located in Peru, but rather it is the case of services carried out in the place where the source (the satellite) is located, that is, in outer space, which is outside the national territory. Therefore, the referred income may not be considered as coming from capital, goods, rights physically located or placed or economically used in Peru and, therefore, they do not qualify as Peruvian source income and are not subject to income tax.
