Procedure incorporated into the Integrated System of the Virtual File (SIEV).- With Superintendence Resolution No. 190-2020/SUNAT, published on October 31, the electronic files for claims are incorporated into the SIEV from December 1, 2020. This extends the use of the SIEV for the maintenance of electronic files for claims, as well as for the submission of the claim brief and applications and writings at the claim stage.
Thus, for example, through SUNAT Online Operations, taxpayers may: i) file a claim; ii) access the file to validate its status; iii) submit any document related to the file; and iv) request meetings with the official in charge.
Designation of electronic issuers is postponed.- Through Superintendence Resolution No. 191-2020/SUNAT, published on October 31, the date of designation as electronic issuers of companies of the Financial and Insurance Systems and cooperatives is postponed until 2021 in order to allow them sufficient time to complete the implementation processes for the issuance of their payment vouchers.
In addition, for these companies, the exception to grant the SBS supervised company voucher, the electronic invoice, the electronic sales receipt and electronic notes, when they are issued for the transactions carried out with a final consumer, is extended until December 31, 2021.
Deduction of interest expenses.- Report No. 080-2020-SUNAT/7T0000 establishes that, in order to establish the limit to the deduction of interest expenses referred to in paragraph 3 of section a) of Article 37 of the Income Tax Act, the interest obtained from the refund of undue or excessive payments made by the Tax Administration must be considered within the concept of “undue interest income.”
Deduction of interest expenses.- Likewise, Report No. 093-2020-SUNAT/7T0000 indicates that the limit of deductibility of net interest expenses of 30% of EBITDA is applicable to debt interest derived from the issuance, in local currency, of securities representing debt that are acquired by Peruvian institutional investors, registered with a securities clearing and settlement institution subject to the supervision of the SMV and whose offer complies with the requirements set forth in paragraphs a) and b) of Article 5 of the Securities Market Act. Furthermore, the exception set out in paragraph e) of section 2 of subsection a) of Article 37 of the Income Tax Act does not apply to them.
Tax Litigation Procedure.- Report No. 096-2020-SUNAT/7T0000 establishes that the appeal against a compliance resolution of the Tax Court is part of the appeal stage of the Tax Litigation Procedure regulated by Title III of the Tax Code; therefore, it may only be discussed if the Tax Administration has observed the provisions of the Tax Court in the compliance resolution, without issuing a new ruling on what has already been decided.
Payment receipts in liability operations.- Report No. 103-2020-SUNAT/7T0000 concludes that it is not appropriate for companies in the financial system to issue payment receipts for interest paid in liability operations, including interest paid on bonds issued in local or foreign markets.
Agreement to Avoid Double Taxation with Chile (Agreement): Consortium without independent accounting.- Report No. 111-2020-SUNAT/7T0000 establishes that the income obtained by a Chilean company that is part of a consortium contract without independent accounting with a Peruvian company, for the services rendered by the consortium in Peru, and that does not comply with the conditions established in the Agreement for it to be constituted as a permanent establishment, shall not be taxed with income tax in Peru, as long as such income qualifies as “business profits” according to Article 7 of the Agreement.
Agreement to avoid double taxation with Mexico (Agreement): technical support and software maintenance.- Report No. 113-2020-SUNAT/7T0000 states that a company domiciled in Mexico that, after the definitive, unlimited and exclusive transfer of the ownership of all the economic rights over a software to a legal entity domiciled in Peru, provides the latter with technical support through the Internet the technical support and maintenance service of said software, which includes its updates, the income obtained by the company resident in Mexico for the referred operation qualifies as business profits in accordance with the provisions of Article 7 of the Agreement signed between the Republic of Peru and the United Mexican States.
IGV: Non-competition Agreement (RTF No. 1020-8-2020).- The taxpayer (individual), when disposing of its shares in a Peruvian company, agreed not to control and/or be the owner of or to be related to a company that is a participant in a business that qualifies as a competitor of the purchaser in Peru for a period of 10 years (i.e., non-competition agreement).
The Tax Court stated that the non-compete clause limited the taxpayer to carrying out operations that would generate income from dividends or capital gains. In other words, it qualified the compensation for the non-competition agreement as a second-category income. In this sense, it concluded that it was not appropriate to tax the retribution for such non-competition clause as business or third category income; nor was it a “service” for purposes of the IGV.
Depreciation of assets acquired via leasing (RTF No. 8877-2-2019).- In this decision the Tax Court specified that in the case of a fixed asset acquired through a leasing contract intended for production activities, it is not appropriate to deduct as an expense the amount of the annual depreciation determined in accordance with the term of the contract whereas in that case depreciation integrates the production cost according to Article 20 of the Income Tax Act, and therefore its deduction must take place through the cost of sales when the assets are sold.
Application of Rule XVI: Sale of Vehicles (RTF No. 1886-9-2020).- On the occasion of an out-of-court transaction, the taxpayer issued a credit note for the same amount of the ticket issued for the sale of a vehicle since the vehicle failed and the buyer returned it.
SUNAT repaired the income tax and IGV tax base for the amount of the credit note, stating that the cancellation of the purchase was not duly supported. However, the Tax Court stated that there was an out-of-court transaction supporting the return of the vehicle and that the annulment of the previous sale had been proven due to the aforementioned failures.
