Taxpayers can consult on the SUNAT portal the updated catalog of modalities to prevent or avoid incurring in obtaining undue tax advantages.

The National Superintendency of Customs and Tax Administration (SUNAT) updated its “Catalogue of High Fiscal Risk Schemes”, with 8 additional modalities for obtaining undue tax advantages. In 7 of them and, under certain conditions, Rule XVI of the Preliminary Title of the Tax Code could be applied.

Additionally, in one of the cases, the existence of sufficient elements to apply the general anti-avoidance rule was established, which is published as established in the second final complementary provision of Supreme Decree No. 145-2019-EF.

The purpose of the publication is that all taxpayers, legal and tax advisors, as well as the academy, know these schemes to avoid incurring in such practices, which are subject to evaluation and priority control by SUNAT, for generating damage to the resources received by the State.

With this update, published on the institutional portal of the entity, there are 13 tax schemes described by SUNAT and with which it is expected to motivate voluntary and timely compliance with the tax obligations of taxpayers.

risky schemes

Among the modalities of potential tax non-compliance is the intermediation in the sale of minerals through a company without economic substance.

In this scheme, a company domiciled in Peru sells mineral concentrate at an undervalued price to a company that has no economic substance and is located in a tax haven; subsequently, the acquiring company sells the same mineral to a client domiciled in a third country and at a significantly higher price. The final destination of the goods is different from that invoiced, the mineral leaves Peru and goes directly to the customer in the third country.

In this way, part of the benefit generated by the sale of the mineral concentrate is transferred to the tax haven, which implies that the company domiciled in Peru pays a lower Income Tax in the country.

According to informative transfer pricing returns -country-by-country reports that are subject to automatic exchange with other tax administrations around the world-, transactions involving the sale of minerals with tax havens amount to an annual average of US$2 billion, while According to customs information, exports to said countries or territories are only registered for US$ 8 million per year, on average, differences that are being analyzed and controlled by SUNAT to determine the correct compliance with tax obligations.

Another modality to unduly reduce taxes is the sale and subsequent repurchase of a luxury vehicle under the guise of annulling said sale.

This consists of a trading company importing and selling a luxury vehicle, which is returned by the buyer after having used it for 11 months, for which the company issues a credit note canceling the transaction; however, you sell another car to that same buyer at a discount for a portion of the original value of the returned vehicle.

With the issuance of the credit note, the company reduces the amount of its income for purposes of Income Tax and IGV, generating damage to the treasury. At the same time, the company sells the returned vehicle to another client as used at half price, generating more advantages in its favor, since it pays less Income Tax, by improperly using the original cost and not the repurchase cost.

Every year in Peru, an average of 140,630 vehicles for private use are imported for a value of US$ 1,836 million per year; therefore, practices such as the one described significantly affect the collection destined to cover the nation’s budget.

Other modalities

The other modalities are: transfer agreement of a concession of an extractive industry with hidden payments in a resolved sale of shares, transfer of benefits to a preferential tax regime, and the loan with the appearance of a financial lease.

It also describes the method of direct disposal of shares of a Peruvian company in a covert manner by a capital contribution and subsequent reduction of this, and the indirect distribution of income from a non-profit entity under the guise of payments to a supplier of the abroad which, in turn, is a party linked to an associate of the aforementioned entity.

Finally, a case is included in which SUNAT established the existence of sufficient elements to apply the general anti-avoidance rule. In this case, a company sold a group of properties in installments in favor of its majority shareholder and his spouse, who immediately leased said properties to the same company, paying for the lease amounts higher than the monthly installments established for the sale of the real estate.

The company continued to use the properties in the same way as before its sale. In this way, the company generated a higher expense by unduly reducing the Income Tax that it had to pay.

Each year, SUNAT will add new characterizations to the Catalog that may imply a potential tax non-compliance and, where appropriate, the application of Rule XVI.

Source: The Peruvian