Young Entrepreneur Law.- Law No. 31828, published on July 12, 2023, provides for various benefits to encourage the creation of jobs for young people. In this regard, in the tax area 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 paid 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 old, 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 term of the contract is one month.
The number of workers registered in the employer’s electronic payroll will be established in the Regulations.
The labor relationship must begin as of January 1, 2024.
ii) With respect to IGV, it has been established that companies will be entitled to a tax refund for export operations of goods and services.
Regulation of the Law that creates special depreciation regimes: Supreme Decree Nº 156-2023-EF, published on July 22, 2023, approves the regulations of Law Nº 31652, which created special regimes for the accelerated depreciation of certain goods.
The following is determined:
(i) The formula to determine the percentage of work progress referred to in Article 2 of the Law.
(ii) The documents that support the beginning and conclusion of the construction of the mills and other constructions.
iii) The non-application of the special depreciation regime due to lack of proof of the start of construction.
iv) The non-accounting of the higher depreciation.
v) The concept of subsequent costs.
Depreciation of assets with depreciated book value.- In Report Nº 090-2023-SUNAT/7T0000, SUNAT analyzes 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 is established that the rule is in force from January 1, 2000 to the present.
ii) It is stated that the provision is applicable to the depreciation of fixed assets acquired as from January 1, 2000 as well as to the depreciation of those assets acquired prior to that date and which were still being depreciated for tax purposes until January 1, 2000.
iii) It is stated that the depreciation accepted for tax purposes is that which is recorded within 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 sense, 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 good qualified as fixed asset, when as a result of the annual depreciation calculated on the lower value of such asset, the book value of the movable good is completely depreciated, the depreciation corresponding to the difference of the acquisition cost recorded at the beginning with respect to the reduced cost, cannot be deducted through a tax return, since such event is not contemplated in the referred DFT.
Transfer of block of assets by spin-off.- By means of Report Nº 089-2023-SUNAT/7T0000, SUNAT pronounces 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 regard, it is concluded that the referred equity block transfer is taxed with Income Tax in Peru, without this entailing a breach of the Non-Discrimination Clause contained in Article 18 of Decision 578 of the CAN.
Selective Consumption Tax (ISC) Credit – Through Report No. 086-2023-SUNAT/7T0000, the case of a taxpayer that imports inputs taxed with ISC for the production of goods, the local sale of which is taxed with said tax, is analyzed. 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 of ISC must be applied as a credit in the following months until it is exhausted, and it 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 of such States.
ii) In the case of the agreements with Brazil, Chile and Canada, the clause will be applicable to the nationals of such States who, at the same time, have the status of residents of such 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 on the deduction of interest expenses provided for in paragraph 1 of subsection a) of Article 37 of the Income Tax Law.
Certificate of invested capital when 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 amortization of losses.
In this case, a Peruvian company agreed to reduce its capital in order to reestablish the balance between the capital stock and the net equity decreased as a consequence of losses, by amortizing the issued shares. 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 when these have been later 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 to be UNFOUNDED, reiterating the position of the Superior 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 fiscal years (Cassation No. 3955-2021 Lima).- The Fifth Constitutional and Social Transitory Chamber of the Supreme Court states that SUNAT is authorized to request the presentation of documentation of prescribed fiscal years in order to validate an assessment for depreciation expenses of a non-prescribed fiscal year, as long as such information is not the support for the determination of the tax liability of the referred prescribed fiscal years.
Evidentiary means of the assessment 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 assessment it is not enough the proof of payment of the sale and the credit note, but the taxpayer should also provide the waybills for the return of the goods, the warehouse entry reports or other documentation, which reliably proves the return of the goods and the entry of the merchandise to the taxpayer’s warehouse.