Constitutional Court Ratifies decision on interest




By rejecting nullity and clarification of the MEF and SUNAT. Collegiate justifies its non-application outside the legal term to resolve.

The Constitutional Court (TC) ratified its binding criteria regarding the non-application of default interest outside the legal term to resolve an administrative and judicial appeal.

It was by declaring inadmissible the appeals for clarification and annulment presented by the Ministry of Economy and Finance (MEF), as well as the National Superintendence of Customs and the Tax Administration (Sunat), respectively, against the sentence issued in File No. 03525 -2021-PA/TC. “Now there is no doubt that the criteria established by the court are binding and must be applied by all state entities,” said tax lawyer Percy Bardales, commenting on the scope of this decision.

The highest court, added the expert, justifies its decision on the request for clarification in the sense that applying default interest after the legal term to resolve the claim or appeals in the contentious-administrative process is unconstitutional, unless it is objectively proven that the reason for the delay was the product of bad faith or reckless conduct on the part of the defendant.

He also said that the request for annulment does not correspond because our legal system does not establish an appeal to annul the sentences issued by the TC. This, because the decisions adopted in the last constitutional procedural instance, are final, since they exhaust the internal jurisdiction.

The highest collegiate explained that based on the constitutional analysis of the tax procedure, its purpose is the collection of the taxes that correspond to each taxpayer, in accordance with the duty to contribute.

“However, authorizing the collection of default interest after the legal term to resolve an appeal has expired is contrary to the right of petition and property, which is qualitatively confiscatory, unless such expiration can be attributed to the responsibility of the company.” .


In the opinion of the expert, it will be important that in subsequent pronouncements of the TC, criteria can be established on situations that distort the legal term, reasonableness and legal certainty in terms of liquidation of tax debts. This is, he said, that a binding ruling be issued on the non-application of capitalized interest. Also evaluate the reasonableness of the application of default interest from the expiration of the affidavit until the notification of the corresponding determination resolution, when this notification is made many years after the original limitation period, among others.


It is possible to issue constitutional precedents in cases in which the lawsuit is declared inadmissible, the court argued.

That is, when the objective is to establish rules for the best protection of rights, he stated.


Source: The Peruvian

share by

keep informed