The entry into force of SUNAT’s Regulation of Organization and Functions (ROF) is extended.- Through Superintendence Resolution N° 038-2024/SUNAT, published on February 29, 2024, the entry into force of the new ROF was postponed until April 1, 2024.
However, by means of Superintendence Resolution No. 062-2024/SUNAT, published on March 31, 2024, it is established that the ROF will enter into force as of the business day following the publication of the Ministerial Resolution that approves the new Table for the Assignment of Provisional Personnel of SUNAT.
Amendment to the Regulation of Law No. 30341, law that exempted the sale of securities in the Stock Exchange from Income Tax.- Supreme Decree No. 032-2024-EF, published on March 23, 2024, adjusts the procedure for the annual determination of Income Tax for the year 2023, for capital gains obtained in such year, from the sale of securities subject to exemption, according to the following detail:
(i) Determination of the second category net income from the sale of securities that generate Peruvian source income:
Gross second category income from the sale of securities subject to exemption – exempt amount = Positive result (PR)
RP + other second category income from the sale of securities (not subject to exemption) = Final gross income (RBF)
RBF – 20% = net second-category income
(ii) Determination of the net foreign source income from the sale of securities that generate foreign source income:
Gross foreign source income from the sale of securities subject to exemption – exempted amount = Positive result (PR)
RP + other foreign source income from sale of securities (referred to in the second paragraph of art. 51 of the LIR) = Final Gross Income (RBF)
RBF – expenses of art. 51-A of the LIR = net foreign source income.
The regulation clarifies that in the case of taxpayers who, in the same fiscal year, have obtained both types of income (i.e. Peruvian and foreign income from the sale of securities subject to the exemption), then the deduction of the exempted amount is made, in first order, from the gross income from Peruvian source and, in second order, from the gross income from foreign source (taking into consideration, in each case, the above mentioned).
The Regulation of Law No. 30309, Law that regulates scientific research, technological development and scientific innovation expenses, is amended by Supreme Decree No. 033-2024-EF, published on March 23, 2024, establishing the following changes:
The definition of “Center for scientific research, technological development and/or technological innovation” is added.
New procedures are provided for the qualification and/or authorization of projects.
Rules and conditions for the authorization of domiciled and non-domiciled centers are established.
The changes foreseen in this regulation are applicable to requests for qualification or authorization of projects and authorization of centers in process as of March 23, 2024.
The use of the Integrated System of Electronic Records is postponed – On March 30, 2024, Superintendence Resolution No. 063-2024/SUNAT was published, the purpose of which is to postpone from April 2024 to August 2024, the date from which the Sales and Income Register and the Purchases Register must be kept through SIRE.
In this regard, the following has been provided:
Subjects that, as of August 1, 2024, are required to keep the Purchase and Sales and Income Records, must use SIRE from the first calendar day of the third month following the month in which they acquire such obligation or from the period in which they acquire by choice the quality of electronic issuer of the Electronic Issuance System, whichever occurs first.
Subjects that comply with the requirements set forth in Superintendence Resolutions N° 286-2009/SUNAT and 379-2013/SUNAT and acquire the obligation to keep the Purchase and Sales and Income Records electronically in the months of July, August, September, October, November or December 2023 or January, February, March, April, May, June or July 2024, shall start using the SIRE in these same periods.
As from August 2024, those taxpayers who as of July 31, 2024 are obliged to keep the Sales and Income Record and the Purchase Record, and are not included in the previous points, will use it.
A new version of PDT ISC Virtual Form N° 615 is approved.- Through Superintendence Resolution N° 058-2024/SUNAT, published on March 24, 2024, version 5.5 of the ISC PDT – Virtual Form N° 615 is approved, which must be used as from April 1, 2024, regardless of the period to which the return corresponds, even in the case of substitute or rectifying returns.
NATIONAL CURRENT ISSUES
Imputation of foreign source income.- In Report No. 010-2024-SUNAT/7T0000, SUNAT concludes that foreign source income obtained by a Peruvian industrial company from interest on a loan granted to a foreign related company must be imputed to the taxable year in which it is received (in accordance with the provisions of paragraph d) of the second paragraph of article 57 of the LIR). This, unless such income derives from the exercise of a business activity abroad (which must be analyzed on a case-by-case basis), in which case it must be recognized in the year in which it accrues (in accordance with paragraph c) of the second paragraph of the same article).
The same criterion applies for dividends obtained by the Peruvian company as shareholder of the foreign company.
Presumption provided for in the rule on Electronic Remittance Guides.- By means of Report No. 018-2024-SUNAT/7T0000, SUNAT analyzes the presumption provided for in numeral 9.3 of Article 9 of Superintendence Resolution No. 255-2015-SUNAT, which establishes that the data included in the Electronic Remittance Guide are valid when upon expiration of the legal term there is no Communication of Conformity by the recipient of the goods or the carrier.
In this regard, it is concluded that it is a relative presumption and therefore admits proof to the contrary.
Use of services and the pro rata tax credit.- Through Report No. 016-2024-SUNAT/7T0000, the following is established:
The use of services in the country rendered by non-domiciled persons is excluded from the calculation of the percentage of the pro rata tax credit regulated in paragraphs a), b) and c) of numeral 6.2 of subsection 6 of article 6 of the Regulations of the IGV Law.
However, the IGV paid for this operation must be included in the amount of the tax to which the pro-rata percentage is applied, in order to determine the part of the tax that may be used as a tax credit since it has been used to carry out taxable and non-taxable operations.
Loans to municipal savings banks – Report No. 017-2024-SUNAT/7T0000 states that credit services that generate interest derived from loans granted by non-domiciled entities in favor of a Municipal Savings and Credit Bank shall be exempt from VAT, provided that such entities constitute one of the entities detailed in paragraph r) of article 2 of the VAT Law. If this is not the case, the referred services shall be taxed with the tax.
Price paid for mineral that qualifies as a computable cost.- Report No. 020-2024-SUNAT/7T0000, analyzes the case of the holder of a concession that buys from formal miners or miners in the process of formalization mineral extracted from mining concessions, before its expiration is declared due to lack of payment of the right of validity, taking into account that such miners develop small mining and artisanal mining with current registration in the REINFO.
In this regard, SUNAT states that the price paid for the acquisition of such mineral is deductible as a computable cost, for the purpose of determining the holder’s Income Tax, since it is not an illegal mining product.
Scope of application of the Book Law.– Through Report No. 013-2024-SUNAT/7T0000, it is established that:
Interactive books made available to the user through a technological platform in exchange for a one-time payment or a periodic consideration that gives access while the consideration is paid are not included in the benefit of VAT exemption provided for in numeral 29.1 of article 29 of the Book Law, since they are not within the scope of Annex B of Supreme Decree No. 008-2004-ED.
The remuneration paid for the provision of interactive books by a company not domiciled in Peru to a domiciled user, through a technological platform, qualifies as a digital service and is therefore subject to Peruvian income tax.
Valuation of evidence through sampling (Case No. 23530-2023 Lima).- the Supreme Court points out that when SUNAT analyzes databases with a lot of information, it cannot limit itself to making a sample that later serves as support to repair the totality of such databases.
In this case, the Tax Court confirmed the assessment for the provision for doubtful collection after noting that the collection management systems did not comply with the legal requirements; however, it declared the assessment null and void with respect to the provisions that were not subject to the sampling carried out by SUNAT during the audit.
Both the Court and the Superior Chamber confirmed the position of the Tax Court, stating that the Administration made an objection based on a sample of certain customers and unduly generalized the observations to all the provisions detailed in the database.
SUNAT filed a cassation appeal alleging that the company never questioned the sample, and therefore, this aspect was not a matter of discussion and constituted res judicata, but the Fifth Chamber of the Supreme Court concluded that the power of reexamination, the principles of ex officio and material truth, The Fifth Chamber of the Supreme Court concluded that the power of reexamination, the principles of ex officio impulse and material truth, allowed the Tax Court to proceed with the nullity, with which, not only the ruling is valid but also the order to SUNAT to evaluate the compliance with the requirements contained in paragraph i) of article 37 of the LIR, reviewing provision by provision.
Deduction of contractual penalty expenses (RTF No. 04002-1-2023).- The Tax Court establishes that contractual penalty expenses are deductible provided that two requirements are met: i) that the penalty clause for noncompliance is agreed in the contract; and ii) that it originates in the income generating activity.
In the specific case, the background was evaluated and after validating that both requirements were met, the Court accepted the deduction and lifted the objection.
Application of Rule XVI of the Preliminary Title of the Tax Code (RTF No. 6831-10-2022).- In this case, SUNAT questioned the simple reorganization, carried out by the taxpayer in 2011, through which it contributed a property to a related company that at that time had tax losses, in that year in exchange for a certain amount of shares. Days later, the company that acquired the property sold the property to a third company and this, in turn, a year later, sold the same property to the taxpayer’s shareholders, in proportion to their shareholding in the latter, who paid income tax at the rate of 5% on the capital gain obtained.
SUNAT claimed that the proximity in the dates of each purchase and sale transaction, undermined the purpose of the reorganization carried out, according to the first paragraph of Rule XVI of the Tax Code.
In this regard, the Tax Court pointed out that the simple reorganization only had as its purpose the transfer of ownership of the aforementioned real estate at book value and the taxpayer did not prove that its intention was to strengthen the assets of the acquiring company, another company, even more so when the subsequent sale of the real estate by the latter took place within a month of having acquired it, not having generated profits in such a short time and there were no profits from the commercial exploitation of the same, nor continued with the activity that the taxpayer (transferor) developed with the asset.
Thus, the Superior Court concluded that the simple reorganization carried out constituted an apparent legal reality (simulation), while the underlying legal reality was that of and, therefore, a disposal taxed with Income Tax, in accordance with Rule XVI of the Tax Code.
INTERNATIONAL CURRENT ISSUES
Application of the General Anti-Circumvention Rule (Judgment of the Chilean Tax and Customs Court).- Through this judgment a credit operation is disregarded by application of the General Anti-Circumvention Rule.
The American company New Growth LLC (NG) incorporated, in the United States, New Growth Chile LLC (NG CHILE). On March 24, 2016, NG CHILE incorporated in Chile the company Forestal Aurora (FA); subsequently, on August 10, 2016, NG created the entity International Timber Finance (ITF).
On September 1, 2016, FA increased its capital and on the same day received a loan from ITF for an amount higher than such increase. FA applied the 4% IR rate to the interest generated by the aforementioned loan.
The Chilean law provides that payments made to foreign companies are taxed at a rate of 35%, while in the case of interest payments originated in loans from non-domiciled financial entities, a rate of 4% is applied. In light of this rule, the Tax Administration claimed that ITF was only constituted to be taxed at a lower rate, since: i) ITF was created after the incorporation of FA; ii) ITF did not make another loan afterwards; and iii) NG, controlling company of NG CHILE, had the resources to directly grant a loan to its related company FA.
The Court confirmed the position of the Internal Revenue Service, stating that the series of acts carried out by the economic group were anomalous and reflected that there was only the intention to artificially reduce the tax burden, even though each of these acts were not illegal in themselves. In addition, no solid justification was identified to validate the credit operation or the constitution of the FTT other than to pay less tax.
The Court adds that: “The economy of option cannot be an unlimited power, because if it were so understood, the general anti-avoidance rules could never have any effect. What differentiates the legitimate exercise of the economy of option from tax fraud is “artificiality” (word defined, in its second meaning, in the dictionary of the RAE, as “false, fictitious, artificial”).
