Provisions related to the Special Fractioning of Tax Debts approved by Legislative Decree No. 1634.
Supreme Decree No. 184-2024-EF, published on October 11, 2024, approves the Regulations of Legislative Decree No. 1634, which created the Special Fractioning of tax debts administered (FEDT) by SUNAT due until December 31, 2023. The main provisions develop the following:
I. Debt subject to FEDT:
The values, liquidations and/or resolutions of SUNAT that contain the tax debt to be covered must have been issued up to the date on which the application for relief is requested.
It is understood that a fine is due as of 12.31.2023 when the infraction is committed or – failing that – is detected up to said date.
II.Request for application:
The following must be indicated: i) the tax debt to be accepted; and ii) the method of payment.
If applicable, the corresponding guarantees must be offered.
An application must be filed for each of the following 2 concepts: i) tax debts generated by customs tax obligations; and, ii) other tax debts.
Partial acceptance is not allowed with respect to the debt contained in values, liquidations and/or SUNAT resolutions.
III. Discount voucher:
It applies only to interest and fines; in no case does it condone the tax debt.
IV. Ex officio acceptance:
V. SUNAT, by means of a resolution, approves or denies the request for the acceptance, within 45 business days from the filing of the request.
On October 18, 2024, Resolution of Superintendence No. 206-2024/SUNAT was published, which regulates the form and conditions for the election of the payment method, for the presentation of the application and, if applicable, the withdrawal of such application.
Likewise, this regulation establishes the characteristics and requirements that letters of guarantee and/or mortgages must comply with in order to qualify as a guarantee for the purposes of the installment payment. In more detail it is specified that:
A new Specialized Chamber is created in the Tax Court – Supreme Decree No. 185-2024-EF, published on October 13, 2024, provides for the creation of a new Chamber Specialized in internal taxes in order to improve the management and timely attention of procedures.
SUNAT’s Integrated Text of the Regulation of Organization and Functions (ROF) is extended – Through Superintendence Resolution No. 207-2024/SUNAT, published on October 20, 2024, the entry into force of the Integrated Text of SUNAT’s ROF is postponed until October 31, 2024. The purpose of this change is to adapt said section to the organizational structure of the Chancay Customs Office.
Appointment of National Superintendent of Customs and Tax Administration.– Supreme Resolution No. 029-2024-EF, published on October 3, 2024, provides for the appointment of Víctor Mejía Ninacóndor as National Superintendent of Customs and Tax Administration.
Derivative Financial Instruments (DFIs) with foreign currency exchange rate as underlying element. By means of Report No. 071-2024-SUNAT/7T0000 it is established that in the case of DFI contracts: i) that consider as underlying element exclusively the foreign currency exchange rate; ii) entered into before the amendment of Article 57 of the LIR, introduced by Legislative Decree No. 1425, effective as of January 1, 2019; and, iii) whose term expires after December 31, 2024, for Income Tax purposes, the following must be observed:
I. The accumulated accounting results that were generated before January 1, 2019, in the case of such contracts in which at that date any of the 6 assumptions of imputation provided in Article 57 of the LIR, which were then applicable to these DFIs, were not verified, do not correspond their recognition as income or loss for tax purposes in the taxable year 2019 or subsequent years.
II. The accounting results generated as from January 1, 2019, must be recognized as income or loss for tax purposes at the close of each taxable year, as from 2019.
Stockpile fresh products (defined as stockpilers, local traders who buy products directly from farmers and then sell them in wholesale markets in the cities) and with their own packing system directly select, pack and cold process fresh products for subsequent export, provided that their annual net income from stockpiling and other activities does not exceed the twenty percent (20%) limit established in numeral 3.1 of Article 3 of the Regulation.
I. Companies that only gather fresh products (gathering companies being understood as local traders that buy products directly from farmers and then sell them in the wholesale markets of the cities) and then hire a third party to provide them with selection, packing and cold treatment services of fresh products for subsequent export are not eligible for the aforementioned tax benefits.
II. The income received by a company under Law No. 31110 from the sale of fixed assets (land, machinery and equipment) or from the hiring of personnel is subject to the twenty percent (20%) limit set forth in the Regulations, since such activities are not included in the scope of the aforementioned law.
The principle of benign retroactivity is not applicable in the case of infractions committed before the modification introduced by Legislative Decree No. 1311 (Mandatory Compliance Resolution No. RTF 8829-9-2024).- The following precedent of mandatory compliance has been approved:
“It is not appropriate to retroactively apply the amendment introduced to numeral 1 of Article 178 of the Tax Code by Legislative Decree No. 1311 to infractions committed prior to its entry into force”.
After auditing the IR for the 2013 fiscal year, SUNAT notified in 2019 a fine for the infraction of numeral 1 of Article 178 of the Tax Code, upon detecting a lower balance in favor than the one declared by the taxpayer.
In this scenario, the Tax Court had to determine whether it was valid to apply the penalty provided before the amendment introduced by Legislative Decree No. 1311, i.e. 50% of the balance unduly declared, or, whether no penalty should be applied at all, considering that the fine was issued and notified in 2019 when there was no longer a penalty for declaring a higher balance in favor and, in addition, the infraction was not in process or in execution as of December 31, 2016, date on which the referred rule came into force.
The TF concludes that the retroactive application of a tax penalty rule does not correspond, without any exception, because this is established in Article 103 of the Constitution. It adds that Article 168 of the Tax Code must be read with the understanding that the infractions in process are those that are pending to be imposed, after having been committed, and not those whose resolution is pending notification. In more detail, the following is stated:
“(…) it is clear that what Article 168 of the Tax Code seeks is to reaffirm that, in no case, after the infraction has been committed, may a rule that was not in force on the date of its commission be applied to it, an interpretation that not only arises from the literal wording of the rule, but also from a concordant interpretation of it with what the Constitutional Court and the Judiciary have already explicitly stated on the non-retroactivity of rules in matters of administrative tax penalties”.
Based on this, it is established that the sanction imposed is valid and it is not possible to apply the beneficial modification introduced by Legislative Decree No. 1311.
