The Sunat published a new report through which the assumptions under which taxpayers must pay income tax for share transfers were expanded.
Strictly speaking, the authority has ruled on the so-called “reverse merger” of companies carried out in the international framework.
In this type of operation, one company has shares of another and the latter then absorbs the first, explains Walker Villanueva, a partner at the PPU study, who points out that it is “when a daughter company absorbs its mother.”
The Sunat points out that, if the “mother company”, which resides abroad, had shares of a Peruvian company and is absorbed by its “daughter”, what happened should be considered as an indirect sale of Peruvian shares, so the ” daughter” will now have to pay the income tax (IR) corresponding to the Sunat.
As Jorge Picón, a partner at the Picón studio, explains, this type of operation occurs mostly within business groups.
“It is a business reorganization that seeks to change the place of residence of the group’s parent company. For this purpose, one of the companies in the group, which resides in a country other than that of the current parent company, absorbs said parent company”, he explains.
So, he clarifies, when the absorbing company “pulls” the Peruvian shares with it, it is considered that they were alienated.
Is the opinion correct?
The lawyer points out that “if they are related companies, it is not logical to apply a tax”, because shares are not really sold with the intention of profiting from said sale.
“Applying a tax to a nonprofit operation becomes a tax burden before anything else,” he adds.
However, he indicates that the Sunat had previously given indications that it considers mergers and divisions as “common and wild” alienations.
Villanueva, for his part, adds that he does not agree with Sunat’s criteria because in the case analyzed there is no “real alienation” of the shares.
“It is an internal reorganization. Neither the shares nor the company itself are sold. Here the interpretation that it is an alienation is forced. There is no transfer (of shares) to a different person who did not originally have them or any consideration”, adds the lawyer, who for some time has been recommending to his clients that they consider indirect mergers as indirect disposals.