REGULATIONS OF INTEREST
Regulation of the new Deferral and/or Fractionation Regime of tax debts administered by SUNAT (RAF).- Through Supreme Decree No. 155-2020-EF, published on June 23, 2020, the RAF Regulation is adopted (adopted by Legislative Decree No. 1487). The main provisions are as follows:
i) They shall be considered as advance payments of the installment fees, if the placement is adopted.
ii) They are charged to the tax debt included in the application for placement, if the placement is denied.
SUNAT shall publish the following on its Transparency Website within 60 working days from the expiration date of the RAF eligibility:
|
Type of taxpayers |
Information to be published |
|
Natural persons who generate and/or exclusively receive income other than the third category received by the RAF. |
The total number of taxpayers and the amount received, grouping them according to income brackets. |
| Legal persons and natural persons who do not generate and/or exclusively receive income other than the third category received by the RAF. |
The total number of taxpayers and the amount received, grouping them according to income brackets and main economic activity, considering the ISIC declared by the tax debtor for the purposes of the RUC. |
Tax procedures linked to the exercise of the powers of the OSINERGMIN regarding the Contribution by Regulation, applicable to the energy and mining sectors.- Through the Resolution of the Board of Directors of the Supervisory Agency for Investment in Energy and Mining OSINERGMIN No. 067-2020-OS/CD specifies the scope of OSINERGMIN’s tasks in the administration, collection, supervision and control of the contribution by regulation charged to companies in the energy and mining sector. In this regard, through the aforementioned legal mechanism, various provisions – some already existing in the Tax Code – are incorporated, applicable to the tax procedures related to Contributions by Regulation (contentious or non-contentious), in accordance with the following:
This rule is effective from June 24, 2020. It is important to note that, in accordance with the Sole Transitional Supplementary Provision of the Resolution, the procedural provisions contained therein are immediately applicable, including to proceedings in process, with the exception of the terms that have already begun to be calculated, which shall continue to be governed by the previous rule (Resolution of the Board of Directors No. 264-2014-OS/CD).
Finally, the Resolution specifies that the Tax Code is applied on a supplementary basis and that the provisions related to the audit procedure are also applicable, as appropriate, to the Contribution to the General Directorate of Electricity.
Flexibility of measures for electronic issuers and electronic service providers.- Through Superintendence Resolution No. 105-2020/SUNAT, published on June 26, 2020, the obligation to have the ISO/IEC-27001 certification is postponed until January 01, 2021 for subjects who wish to register as electronic service providers or for those who registered as such until December 31, 2020. Likewise, the issuers of the Electronic Issuance System that, from December 31, 2019, had the statutes of main taxpayers and whose annual income in 2018 was equal to or greater than 300 Tax Units UIT, designated by SUNAT or by choice shall use the SEE-OSE and/or SEE-SOL for the issuance of invoices, sales tickets and electronic notes linked to those from January 1, 2021. Amendment to the Integrated System of Virtual Records (SIEV).- The Superintendence Resolution No. 106-2020/SUNAT, published on June 28, 2020, extends the use of the SIEV for the management of electronic files corresponding to inductive actions starting with a notice notified from August 1, 2020, as well as for the submission of requests and support of inconsistencies or omissions related to said inductive actions.
NATIONAL CURRENT ISSUES
Provisions for proceedings in the Tax Court during the State of National Emergency.- Through the Plenary Council Agreement No. 06-2020, held on June 16, 2020, the use of videoconferencing or another form of electronic conference is approved in the different proceedings of the Tax Court. Likewise, the following is foreseen:
i) The Specialized Rooms may meet at least once a week in the Tax Court or by remote access.
ii) Diligence of oral report:
– The parties shall be notified of the date and time of the diligence.
– The schedule of oral reports shall be published on the website of the Tax Court.
– The parties must send the data of the persons who shall report (maximum two), as well as the email to which the link shall be sent to carry out the oral report within a period of no less than two working days prior to the completion of the procedure and by virtual court registry of the Tax Court.
iii) The review of files and appointments with the Reporting Secretaries may be scheduled through the website of the Tax Court.
Suspension of the statute of limitations during the State of National Emergency.- In Report No. 039-2020-SUNAT/7T0000, SUNAT concludes that the declaration of a State of National Emergency and the mandatory social isolation (quarantine) ordered by the National Government through Supreme Decree No. 044-2020-PCM and extending and amending regulations: i) Suspends the limitation period of the action of the Tax Administration to determine the tax obligation and apply sanctions, from 03/16/2020 and for as long as said measure prevents it from exercising said action, which must be determined in each specific situation. ii) Suspend the limitation period of the action to request or make the compensation, as well as to request the refund, from 03/16/2020, during the period in which such measure prevents the Tax Administration from carrying outs its activities related to such actions, as it is the case, of the reception of the refund or compensation requests from the taxpayers, which must be determined in each specific situation. Suspension of the audit period during the State of National Emergency.- In Report No. 038-2020-SUNAT/7T0000, SUNAT establishes that the declaration of a State of National Emergency and the mandatory social isolation (quarantine) ordered by the National Government Through Supreme Decree No. 044-2020-PCM and extending and amending regulations, they constitute grounds for suspension of the period of definite audit referred to in subsection c) of number 6 of article 62-A of the TUO of the Tax Code, as long as SUNAT is prevented from carrying out the activities necessary to carry out said procedure.
Accrual of expenses for workers’ profits.- Through Report No. 032-2020-SUNAT/7T0000, it is established that in the case of the additional participation of workers in the profits of companies unilaterally established by the employer for a given year:
i) The expense for such concept is considered accrued in the year to which the profits correspond. ii) In the event that for the payment of said participation it is established as a requirement that the worker has a working relationship in force until a given month of the following year to which said profit corresponds, such requirement constitutes a condition precedent for the purposes of the third paragraph of the article 57 of LIR.
Tax treatment of income from the Hydrocarbon Energy Security System (SISE) .- Through Report No. 023-2020-SUNAT/7T0000, it is stated that within the framework of a project for the implementation of natural gas in the country, the Income from the SISE received by a concessionaire from the natural gas distribution service intended to finance the external infrastructure necessary for the provision of said service does not constitute remuneration for any operation taxed with the IGV or income taxed with the Income Tax.
CASE LAW Amortization of mining concessions.- Cassation No. 3706-2016, the Third Chamber of Constitutional and Transitory Social Act has established the following criteria: “In accordance with article 74 of the Single Ordered Text of the General Mining Act, the acquisition value of the concessions shall be amortized from the year in which, according to law, it is necessary to comply with the minimum production obligation, within a period that the mining activity holder shall determine at that time on the basis of the probable life of the deposit, calculated taking into account the proven and probable reserves, as well as the mandatory minimum production according to law.Therefore, in the event that the ownership of the mining activity is acquired – which includes obtaining the right to exploitation – as in the case of the contract of transfer of the contractual mining transfer position, this shall have as tax effects for the third party that the payment delivered to the assignee must be amortized based on the probable life of the mining concession”. SUNAT stated that the payment for the transfer of mining transfer contracts must have been amortized according to article 74 of the General Mining Act (LGM), considering it as the payment for the acquisition of the concession, and not be applied as an expense in full to the profit or loss for the period (as the taxpayer did, by treating it as an intangible in application of subsection p) of article 37 of the Income Tax Act). The Tax Court revoked the objection, stating that, through the contract for the transfer of the contractual position, the company acquired an intangible asset of limited duration (being linked to the duration of the relevant contracts) and, therefore, it had to be amortized according to the rules of Income Tax and not the LGM.
The Supreme Court confirmed SUNAT’s position and declared the RTF invalid and void. The taxpayer appealed for cassation, and the Chamber (with minority votes) declared it UNFOUNDED. Invalidity for failure to comply with the legally established procedure.- Through Cassation No. 18752-2016, the Third Chamber of Constitutional and Transitory Social Act has established the following criteria: “When the Tax Administration does not adopt the formality established to resolve the matter of a tax administrative pronouncement, the resolution must be declared invalid and void and the administrative procedure must be replaced by the state to issue new administrative resolutions after complying with the due tax administrative procedure established by law”. The Tax Court revoked and invalided the contested values, because the procedure followed by the Administration to determine the omitted sales (determination on presumptive basis) had not been carried out in accordance with the law. SUNAT filed a lawsuit against RTF and, subsequently, also an appeal for cassation. The Third Chamber declared the appeal FOUNDED, affirming that although the Tax Administration did not follow the procedure established for the determination on the presumed basis, the Tax Court must not have revoked the values, but instead had to issue an annulment statement and order SUNAT to issue new values in accordance with the established legal procedure.
The Third Chamber expressly departs from the Full Court Agreement No. 2010-06 of the Tax Court that approved the Glossary of Judgments and in its assumption No. 28 established that when the Administration has not followed the procedure established for the determination on the presumed basis, it is appropriate to revoke the appeal and set aside the value. Capitalization of accumulated results obtained by application of IFRS (RTF No. 00653-8-2019).- In 2012, a Peruvian holding company prepared its financial statements adapting them for the first time to IFRS, so it recognized its investments in subsidiaries as fair value, generating a higher value that was recorded in the accrued income account. Subsequently, in June 2013, the General Meeting of Shareholders of that holding agreed to capitalize the accumulated results to 2012, issuing new shares for which its non-domiciled shareholder requested certification of the invested capital. SUNAT refused certification stating that said shares do not come from a higher payment or from an effective capitalization of profits, so it is not a capital investment that may be recognized for tax purposes. In this regard, the Tax Court has confirmed the position of the Tax Administration, stating that the highest value of financial assets as a result of their accounting at fair value corresponds to an expectation value on which there is not complete certainty. This means that, legally, it does not qualify as distributable profit and is not accruable. Incentive to workers to set up a new company (RTF No. 02496-3-2019).- The SUNAT stated that the payments made to the workers for the constitution of new companies were subject to Income Tax, since the amounts awarded do not comply with the provisions of article 47 of Supreme Decree No. 002-97-TR as they have not proven the pre-existence of an incentive policy, plan or program that encourages the establishment of new companies; and therefore, they were an employer liberality. The Tax Court has indicated that, with regard to withholdings, it is not required to have a policy, plan or program, or to prove that each worker is monitoring or control the establishment of his own company, as these requirements are not provided for in the relevant regulations. In this way, it concluded that the agreements of mutual dissent and the liquidation of social benefits allowed demonstrating that there had been a negotiation between the worker and the employer, and that it had not been a unilateral decision. Therefore, the payments were unaffected to Income Tax in accordance with subsection a) of article 18 of the Income Tax Act.
