As shall be recalled, Superintendence Resolution Nº 040-2022/SUNAT established that from October 1, 2022 the Integrated System of Electronic Records (SIRE) must be used to keep the Purchase and Sales and Income Records electronically.
However, on September 28, 2022, Superintendence Resolution Nº 190-2022/SUNAT was published, which modifies Superintendence Resolution Nº 040-2022/SUNAT and postpones the use of SIRE in the following terms:
(i) Subjects included in Annex No. 7 of Superintendence Resolution Nº 112-2021/SUNAT must use SIRE from the period of July 2023.
ii) Subjects that comply with the requirements set forth in Superintendence Resolutions Nº 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 or September 2023, must start using SIRE in these same periods.
iii) From October 2023, it shall be used by those taxpayers who from September 30, 2023 are required to keep the Register of Sales and Income and the Register of Purchases, and are not included in the previous points.
iv) In the case of entities that from October 1, 2023 are obliged to keep the Sales and Income and Purchase Records, they must use it 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 status of electronic issuer of the Electronic Issuance System, whichever occurs first.
Likewise, the aforementioned resolution has approved version 5.4 of the Electronic Book Program (PLE), which shall be available in SUNAT Virtual from August 1, 2023 to be used from then on, even with respect to periods that were omitted to be registered until that date.
Amendments to the Tax Code.-
The Executive Branch proposes to amend the Tax Code in order to improve the management of the collection of tax debts:
i. Attribution of joint and several liability
It is intended to establish a special procedure for attributing liability in which the taxpayer may present his or her defense and be allowed to exercise his or her right of defense. After this procedure, the resolution of determination of joint and several liability shall be issued.
The new procedure shall not be applicable in the cases provided for in Article 19 of the Tax Code, i.e. when the joint and several liability arises from the same event that generates tax obligations with respect to several taxpayers or when the determination of the tax obligation for which liability is attributed is only made with respect to the taxpayer responsible, in which case an audit procedure must be carried out in order to issue the corresponding resolution of determination of attribution of liability.
ii. Precautionary measure prior to the coercive collection
It is foreseen that in order to establish the existence of reasons to presume that the collection could become unsuccessful, before initiating the Coactive Collection Procedure, objective indicators such as averages, coefficients and/or percentages based on sales, income, revenues, costs, expenses, losses, assets, liabilities, net equity, working capital, volume of operations, bank movements, duly supported.
iii. Tax reserve
Article 85 of the Tax Code establishes which information of the taxpayer is outside the scope of the Tax Reserve and, therefore, may be published by the Administration.
The bill intends to incorporate to this list the total amount of the tax debt contained in notified resolutions or payment orders, with the indication of its status.
The publication shall be mandatory in those cases in which the total amount of the tax debt, updated to the last day of the month prior to that in which the publication is made, is greater than 10 UIT.
In the case of non-enforceable debts, the publication may only be made when the amount exceeds the amount established by supreme decree.
Likewise, it is provided that the publication of this information shall not constitute an appealable act and may include the trade name of the taxpayer and/or responsible party, if any.
iv. Letter of guarantee in the appeal procedure
The purpose is to establish that, in order for an appeal filed by debtors – natural persons or representatives of legal entities – who have been convicted of tax or customs offenses (in force at the date of filing the appeal), or in which the matter in dispute is related to withholdings or social security contributions, a letter of guarantee must be presented for 60% of the part of the tax debt that is the reason for the appeal.
It is proposed that the counter-guarantee, personal or real, offered by the plaintiff must be for an amount not less than 60% of the total amount of the tax debt affected by the precautionary measure, updated to the date of notification with the precautionary request. The Tax Administration, when acquitting the transfer of the precautionary request, must indicate the total amount of the tax debt affected by the precautionary measure, updated to the date of notification with the precautionary request.
Amortization of concession payment.-
Regarding the payment of the economic offer made for the granting of a telecommunication services concession, through Report Nº 067-2022-SUNAT/7T0000, SUNAT establishes that, the provisions of Article 22 of the Sole Ordered Text of the Concessions Law (according to which, the concessionaire may depreciate annually the assets subject to the concession in accordance with their useful life, not exceeding in this case the annual rate of 20%) are not applicable to such payment; or, alternatively, it may depreciate them in full during the period remaining for the expiration of the concession term, applying for such purpose the straight-line method) but, rather, the provisions of paragraph g) of Article 44 of the Income Tax Law (LIR) (according to which the price paid for intangible assets of limited duration, at the taxpayer’s option, may be considered as an expense and applied to the results of the business in a single year or be amortized proportionally over a period of ten (10) years).
Calculation of interest on the IR credit balance when there has been a rectification (RTF No. 10506-9-2021).-
The taxpayer after applying his 2014 IR balance in favor against an IR payment on account of August 2015, filed a rectifying return determining a higher balance in favor. Subsequently, he requested the refund of such excess and SUNAT stated that the late payment interest must be computed from the date on which the rectification was filed.
In this regard, the Tax Court determined that the late payment interest must be computed from the date of filing the original return, since the original return was replaced by the rectification and it is in the first one where the credit for the credit balance that granted the right to the refund originated.
Offset of Income Tax (IR) credit balance against ITAN debt (RTF No. 7843-9-2021).- The taxpayer requested the offset of the IR 2020 credit against the ITAN debt for 2021.
The taxpayer requested the offset of the credit for the IR 2020 credit balance against the ITAN debt for 2021. Subsequently, he filed a rectifying return for IR 2020, recording a higher credit balance and marking the option to apply the credit balance against future IR payments. SUNAT declared the request inadmissible, stating that there was no credit in favor of the taxpayer since there were audit procedures in process with respect to the IR of the 2015 and 2016 fiscal years.
In this regard, the Tax Court pointed out that, although the company could not automatically offset the balance in favor of the IR 2020 with debts other than the payments on account of such tax, this does not imply a prohibition for the Administration, at the request of a party, to carry out such offsetting. Likewise, the ruling body affirmed that the fact that there are ongoing audits is not a cause of inappropriateness provided for in the regulations; therefore, it revoked the appealed resolution and ordered to proceed with the offsetting.