The use of the Integrated System of Electronic Records is postponed.- As will be recalled, Superintendence Resolution N° 040-2022/SUNAT established that, as of October 1, 2022, the Integrated System of Electronic Records (SIRE) should be used to keep the Purchase and Sales and Income Records electronically. Subsequently, this date was postponed to October 1, 2023.
However, on September 30, 2023, Superintendence Resolution N° 204-2023/SUNAT was published, which postpones the use of SIRE in the following terms:
i) Subjects obliged to keep the Purchase and Sales and Income Records, must use SIRE as from the period of January 2024.
ii) 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, must start using SIRE in these same periods.
iii) As of January 2023, it will be used by those taxpayers who, as of December 31, 2023, are required to keep the Sales and Income Record and the Purchase Record, and are not included in the above points.
A new means of filing the PLAME is approved.- By means of Superintendence Resolution N° 201-2023/SUNAT, published on September 30, 2023, an alternative means to the PDT Electronic Return PDT – PLAME, Virtual Form N° 0601, is approved for compliance with the obligations.
For this purpose, Virtual Form No. 0601 – PLAME Web is created, which will be available in SUNAT Operaciones en Línea (in the service Mis declaraciones y pagos), as from November 30, 2023, for those subjects that belong to the private sector and have up to ten (10) workers or service providers.
IGV withholding agents.– Superintendence Resolution N° 186-2023/SUNAT, published on September 10, 2023, provides for the designation of new withholding agents and the exclusion of others as from October 1, 2023.
Changes in the list of the new System of Withholding by Telematic Means- Third Party Withholding Agent (New SEMT-TR).- By means of Superintendence Resolution N° 182-2023/SUNAT, published on September 3, 2023, taxpayers are incorporated as third party withholding agents to the New SEMT-TR as from September 15, 2023.
Goods subject to the Road Tax.– Through Report N° 097-2023-SUNAT/7T0000, it is stated that gasohol are goods included in the scope of application of the Road Tax.
Binding Precedent on the evaluation of evidence (Cassation N° 546-2022 Lima).- The Supreme Court has established, with binding character for the Tax Administration, the Tax Court and the Judiciary, criteria for the evaluation of evidence (including extemporaneous evidence) in order to safeguard the right of defense and due process of taxpayers and to reach the material truth.
Cassation Ruling No. 546-2022, published on September 7, 2023, states the following:
(i) The Administrative Bodies must guarantee the taxpayer’s rights to due process and defense, allowing him to correct the formal requirements so as not to affect his right to an effective claim.
ii) The Tax Administration and the Tax Court must incorporate and evaluate ex officio the evidence submitted extemporaneously by the taxpayer, which they consider necessary for the clarification of the facts and to reach the material truth.
iii) In the judicial stage, the parties may offer all the evidence they deem pertinent, including those submitted extemporaneously in the administrative proceeding. The Jurisdictional Bodies are obliged to analyze their pertinence and relevance in order to validly incorporate them into the process, at the request of the parties or ex officio.
iv) The Jurisdictional Bodies are obliged to rule on the merits of the controversy if they have all the evidence to declare the right, even if it has not been requested by the plaintiff. The aim is to provide effective protection and avoid the declaration of nullities that delay the final resolution of the litigation.
Binding Precedent on the suspension of the statute of limitations during contentious tax proceedings (Cassation N° 11947-2022, Lima).- The Supreme Court ruled on the application of the amendment provided by Legislative Decree N° 1311 to Article 46 of the Tax Code and established, as a binding precedent published on September 16, 2023, the following:
1. It is understood that, by the principle of immediate application of the law, the law applies to the consequences of the legal relations and situations existing since its entry into force, therefore it has no retroactive force or effects (except in criminal matters) and, therefore, it enters into force and is mandatory from the day following its publication, unless its effectiveness is postponed in whole or in part by the same law, as provided in Article 103 and 109 of the Political Constitution of Peru.
2. In tax matters, in accordance with Rule X of the Preliminary Title of the Sole Ordered Text of the Tax Code and the principle of immediate application of the rule, it must be understood that the rule of suspension of the statute of limitations, contained in Article 46 of the Sole Ordered Text of the Tax Code, as amended by Legislative Decree N° 1311, which establishes that the suspension operates only within the legal terms for resolving tax appeals, applies to claims filed as of the effective date of said legislative decree and to tax appeals filed after the effective date of said legislative decree.
3. Furthermore, it is not possible to allege a benign retroactive application of Legislative Decree N°1311, but rather the immediate application of the rule with respect to those cases in which the sanctioning administrative act has not been notified prior to the entry into force of the aforementioned rule, such as a fine resolution, as long as such notification has occurred during the validity of the aforementioned legislative decree, in accordance with Article 168 of the Sole Ordered Text of the Tax Code and the principle of immediate application of the rule.
Binding Precedent on the application of the Temporary Tax on Net Assets – ITAN (Cassation N° 13708-2022, Lima).- Through this ruling, published on September 26, 2023, the Fifth Constitutional and Social Transitory Chamber of the Supreme Court, establishes the following binding criterion:
“For purposes of the interpretation of the scope of Article 19 of the Political Constitution of Peru, in application of the principle of constitutional supremacy and specialty of said provision, a particular educational institution that generates profits is only affected by income tax, and such affectation cannot be extended to other direct or indirect taxes that affect its assets, such as the Temporary Tax on Net Assets – ITAN. In this sense, the provisions of article 3, paragraph f) of Law N° 28424 are not applicable, as well as the rules set forth in Rule VII of Title “Tax on Net Assets” of Law N° 28424.
Compensatory interest agreed after the execution of the loan agreements (Cassation N°5755-2022 Lima).-In this case, after the execution of a loan agreement, where the applicable interest rate was not agreed, the parties signed a “Financial Conciliation Act” to fix such rate.
In this regard, the Fifth Constitutional and Social Transitory Chamber of the Supreme Court states that the agreed interest is subject to VAT, since it is the consideration for a financial service. And, in accordance with Article 3 of the Regulation of the IGV Law and the Payment Voucher Regulation, the tax obligation would have arisen on the due dates of the payment.
