Young Entrepreneur Law.- Law Nº 31828, published on 12 July 2023, provides for various benefits to encourage the creation of jobs for young people. In this regard, in the tax field, it is established that:
(i) Companies that are subject to the General Income Tax Regime or the MYPE Tax Regime and that hire one or more new workers, may apply to an additional deduction equivalent to 50% of the basic remuneration they pay to the new worker, in the determination of the IR for fiscal years 2024 and 2025, provided that they meet the following requirements:
The worker is between 18 and 29 years of age, at the time of hiring.
The worker must not have been on the payroll of another company in the previous 12 months.
The basic monthly remuneration must not exceed S/. 1,700.
The minimum contract term is one month.
The number of workers registered in the employer’s electronic payroll shall be established in the Regulations.
The employment relationship must start as of 1 January 2024
ii) With respect to the IGV, it has been established that companies will be entitled to a tax refund for export operations of goods and services.
Regulations of the Law creating special depreciation regimes.- Supreme Decree Nº 156-2023-EF, published on 22 July 2023, approved the regulations of Law No. 31652, which created special regimes for the accelerated depreciation of certain goods.
The following is determined:
(i) The formula for determining the percentage of work progress referred to in Article 2 of the Law.
ii) The documents supporting the commencement and completion of the construction of mills and other constructions.
iii) The non-application of the special depreciation regime due to the lack of proof of the start of construction.
(iv) The non-recognition of higher depreciation.
(v) The concept of subsequent costs.
NATIONAL CURRENT ISSUES
Depreciation of assets with depreciated book value.- In Report Nº 090-2023-SUNAT/7T0000, SUNAT analyses various aspects of the provision contained in paragraph b) of the Second Final and Transitory Provision (DFT) of Supreme Decree Nº 194-99-EF, which provides for the deduction of assets whose book value has been fully depreciated; and concludes the following:
(i) It states that the rule is in force from 1 January 2000 to the present.
ii) It states that the provision is applicable to the depreciation of fixed assets acquired on or after 1 January 2000 as well as to the depreciation of assets acquired prior to that date and which continued to be depreciated for tax purposes until 1 January 2000.
iii) It is stated that the depreciation accepted for tax purposes is that which is accounted for in the taxable year in the accounting books and records, provided that it does not exceed the maximum percentage established in the LIR Regulations.
In this regard, it is indicated that in the event that by application of the IFRS an accounting adjustment is made that reduces the acquisition or production cost of a movable asset classified as a fixed asset, when as a result of the annual depreciation calculated on the lower value of said asset, the book value of the movable asset is completely depreciated, the depreciation corresponding to the difference between the acquisition cost recorded at the beginning and the reduced cost cannot be deducted via sworn statement, as said event is not contemplated in the aforementioned DFT.
Transfer of equity block by spin-off.- In Report Nº 089-2023-SUNAT/7T0000, SUNAT ruled on the case of a transfer of shares of a Peruvian company, carried out by a company domiciled in Colombia to another Colombian company, without revaluing the transferred assets.
In this respect, it is concluded that the aforementioned transfer of a block of assets is subject to income tax in Peru, without this entailing a breach of the non-discrimination clause contained in Article 18 of Decision 578 of the Andean Community of Nations (CAN).
Selective Consumption Tax (ISC) credit.- Report Nº 086-2023-SUNAT/7T0000 analyses the case of a taxpayer who imports inputs taxed with ISC for the production of goods, the local sale of which is taxed with this tax. The ISC paid is higher than that levied on local sales, which causes the ISC credit to increase over time.
In this regard, it is stated that the excess ISC must be applied as a credit in the following months until it is exhausted, and cannot be deducted as an expense or cost for income tax purposes.
Non-Discrimination Clause in Double Taxation Avoidance Agreements (DTA).- In Report Nº 087-2023-SUNAT/7T0000, SUNAT states the following:
i) The referred clause in the agreements with Switzerland, Mexico, Korea and Portugal will be applicable to the nationals of such States even if they do not have the status of residents in those States.
ii) In the case of agreements with Brazil, Chile and Canada, the clause will be applicable to nationals of these States who, at the same time, have the status of residents of these States.
Deduction of interest expenses.- Through Report Nº 082-2023-SUNAT/7T0000, it is stated that the repurchase of bonds paid by the issuer before maturity through a redemption premium, as part of the consideration paid by the bond issuer to the bondholder for the financing received, must be considered for the calculation of the limit to the deduction of interest expenses foreseen in numeral 1 of paragraph a) of Article 37 of the Income Tax Law.
CASE LAW
Certificate of invested capital when the capital is reduced.- By means of Cassation Nº 8447-2021 Lima, the Fifth Constitutional and Social Transitory Court ruled on the computation of shares for the issuance of a certificate of invested capital when there has been a reduction of capital in the company due to the amortisation of losses.
In this case, a Peruvian company agreed to reduce its capital in order to re-establish the balance between share capital and net equity diminished as a result of losses, by amortizing the shares issued. Under this scenario, a foreign shareholder saw its number of shares reduced and subsequently requested the certificate of invested capital for the shares. SUNAT disregarded the invested capital (or computable cost) of the shares that were amortized as a result of the aforementioned reduction and issued the corresponding certificate only for the value of the remaining shares. For its part, the Tax Court confirmed this position, reiterating the criteria established in RTFs Nº 11733-3-2015 and 05544-4-2016.
In this regard, the Superior Court declared the RTF null and void, stating that the computable cost is the amount effectively invested by the foreign shareholder when acquiring the shares of the Peruvian company, therefore, the Certificate of Invested Capital corresponds to the total amount paid and duly credited for the shares acquired, even if these have later been reduced in number as a consequence of their amortization and the decrease in the nominal value of the shares.
The Supreme Court declared the appeals filed by SUNAT and the Tax Court UNFOUNDED, reiterating the position of the High Court and specifying that the computable cost stated in the “certificate of recognition of invested capital” must be the acquisition cost of the shares received by the non-domiciled taxpayer.
Documentary support related to prescribed years (Cassation No. 3955-2021 Lima).- The Fifth Constitutional and Social Transitory Chamber of the Supreme Court states that SUNAT is entitled to request the submission of documentation from prescribed years in order to validate an assessment for depreciation expenses of a non-prescribe21
Means of proof of the objection for the cancellation of the sale of goods delivered to the customer (RTF No. 956-1-2022).- The Tax Court states that in order to support this objection, the receipt of payment for the sale and the credit note are not sufficient, but the taxpayer should also have provided the waybills for the return of the goods, the warehouse entry forms or other documentation that reliably proves the return of the goods and the entry of the goods into the taxpayer’s warehouse.
