Complementary rules for the provision of financial information.- Supreme Decree Nº 430-2020-EF adopted the Regulation that regulates the provision of financial information to SUNAT to combat tax evasion and avoidance. Articles 4 and 5 of this rule provide that the concepts that the companies of the financial system must record, as well as the form, conditions and dates for their submission, shall be established by means of a Superintendency Resolution.
In this context, Resolution Nº 0067-2021/SUNAT has been published and establishes the following:
i. Concepts to be declared:
ii) Form and conditions:
a) For the filing of the return for the first half of the year, the dates established in the schedule for the fulfillment of the monthly tax obligations for the June period shall be considered.
b) For the filing of the return for the second half of the year, the schedule for the December period shall be considered.
c) If the schedule of monthly tax obligations is modified, postponing the due dates of June and December to dates after September 30 and March 31, respectively, the tax return must be filed until the last working day of September or March, as appropriate.
Rules related to the deferral and fractionation regimes are adopted.- Superintendency Resolution Nº 070-2021/SUNAT, published on May 16, 2021, the following rules have been adopted:
i) From May 17 to June 30, companies in the Tourism Sector with an income of less than 2300 UIT may benefit from the Deferral and/or Fractionation Regime (RAF-TURISMO) using Form Nº 1706 – “Virtual Fractionation Form – RAF-TURISMO” through SUNAT Online Operations.
ii) It is foreseen that the payment of the debt subject to acceptance of the Special Fractionation for MYPES, established by Legislative Decree Nº 1257, to the Exoneration Regimes and payment facilities of the tax debt for contributions to the Social Health Insurance adopted by Emergency Decree Nº 037-2019 and to the Tax Debt Deferral and/or Fractionation Regime established by Legislative Decree Nº 1487 may also be carried out through SUNAT Virtual or the SUNAT APP.
iii) For debts other than the mining royalty or the special mining tax, the payments of the Regulation of deferral and/or fractionation of the tax debt for internal taxes, adopted by Superintendency Resolution Nº 161-2015/SUNAT, and Superintendency Resolution 190-2015/SUNAT regarding the debt included in the deferral and/or fractionation or refinancing, may also be made through the APP SUNAT.
Modification of the Default Interest Rate applicable to tax debts.- Through Superintendency Resolution Nº 044-2021/SUNAT, the Default Interest Rate applicable as from April 1, 2021 to tax debts in national currency corresponding to taxes administered and/or collected by SUNAT is reduced from 1.0% to 0.90%.
Habituality in inheritance advance payment.- By means of Report Nº 044-2021-SUNAT/7T0000 it is established that the disposal of assets acquired as a result of an inheritance advance payment, referred to in article 831º of the Civil Code, carried out before or after the death of the deceased who anticipated the inheritance, is not within the exception provided for in numeral iii) of the last paragraph of Article 4 of the Income Tax Law.
Interest Expenses: Undercapitalization.- Through Report Nº 015-2021-SUNAT/7T0000, SUNAT pronounces on the application of the rule established to calculate the limit to the deduction of interest expenses provided for in numeral 1 of paragraph a) of Article 37 of the Income Tax Law (LIR), stating the following:
i) The limit is not applicable to the taxpayer that is constituted or starts activities in the fiscal year if their net income for said fiscal year does not exceed 2500 UIT.
ii) With regard to the interest expense provided for in paragraph 1 of subsection a) of Article 37 of the LIR incurred in the pre-operating stage, it is not relevant whether the income in said stage exceeded 2500 UIT.
In this case, if the interest expense is deducted in a single year, the limit to its deduction provided for in the paragraph 1 shall not be applicable if in the year in which the production or exploitation of the company’s activities begins, the income does not exceed 2,500 UIT. However, if it is decided to amortize them proportionally over a maximum period of ten years, in order to determine whether or not the aforementioned limit applies, it shall be verified in each year in which the deduction is applicable, whether or not its income exceeds 2500 UIT, taking into account that for purposes of comparison with 30% of EBITDA, the interest to be deducted in such year must be considered.
iii) In the event that a legal entity is incorporated in fiscal year 2021 and starts operations in fiscal year 2022, the EBITDA to be considered as a reference to establish the limit referred to in paragraph 1 of subsection a) of Article 37 of the LIR, is the EBITDA of fiscal year 2022.
Compensation of the unused balance of the ITAN against any tax debt (Mandatory Compliance RTF Nº 3885-8-2021).- Through this ruling, the Tax Court establishes the following mandatory compliance criteria:
“Although the regulations applicable to the Temporary Tax on Net Assets do not allow the automatic compensation of the unused balance of said tax against other tax debts other than payments on account and payment of Income Tax regularization, this does not imply a prohibition for the Administration to make such compensation at the request of a party, in accordance with the provisions of Article 40 of the Tax Code.”
Intragroup Services (RTF Nº 5376-1-2020).- Through this resolution, the Tax Court analyzes an objection to expenses for intragroup services.
SUNAT covered the expenses for technical assistance services and group services inside and outside the country, considering that the provision was not reliably accredited. For its part, the taxpayer submitted, in addition to the respective contracts, the payment vouchers issued, accounting entries, service orders, account statements, Transaction Audit Report, audited financial statements, annual report of the fiscal year and a Report on Review of the statement of costs charged for the rendering of services; and, especially, requested the Administration to make a joint assessment of the evidence.
In this regard, the Tax Court concluded that SUNAT did not adequately assess the documents submitted and that the objection was not duly grounded, since it was based on proof; however, in its recitals, the Administration questioned the way in which the costs were determined, which showed that SUNAT considered that the service was indeed rendered. Finally, the Court lifts the objection and revokes the resolution on this point.
