Publication and validity of the new standard

On October 6, 2022, Supreme Decree No. 233-2022-EF was published, which modifies article 60-A of the Regulations of the Income Tax Law, which regulates the conditions that credit loans must meet. money to justify capital increases.

It should be noted that the supreme decree will enter into force on January 1, 2023, in accordance with the provisions of its First Final Complementary Provision.

Background

As is public knowledge, subparagraph e) of the second paragraph of article 52 of the Income Tax Law, provides that capital increases cannot be justified with income from loans that do not meet the conditions indicated in the regulation.

For its part, through article 60-A of the Regulations of the Income Tax Law, the conditions that money loans must meet to justify capital increases are established.

In this regard, the purpose of the supreme decree is to adjust the conditions in the cases of loans whose borrower is a resident of a non-cooperative country or territory or of low or no taxation or a permanent establishment located or established in those and/or loans that are channeled through banking or financial companies resident in such countries or territories or through permanent establishments located or established in them.

New conditions of loan contracts (mutual) to justify capital increases

It is specified in the Regulation of the Income Tax Law after its modification by the supreme decree that money loans can only justify capital increases when:

The loan granted is directly linked to the need to acquire assets and/or to incur consumption whose origin is required to be justified.

The mutant is fully identified and does not have the condition of not having been, nor the condition of subject without operational capacity, at the time of signing the contract or at the time of disbursing the money.

The borrower informs Sunat that the lender, at the time of signing the contract or at the time of disbursing the money:

Is a resident of a non-cooperative country or territory or one with low or no taxation or a permanent establishment located or established in such countries or territories and/or;

He has channeled the loan through banking or financial companies residing in non-cooperative countries or territories or with low or no taxation or permanent establishments located or established in such countries or territories.

Precisions on the borrowers

Regarding borrowers, the following will be taken into account:

Those obliged to use the means of payment referred to in article 5 of Law No. 28194:

They will be able to justify the patrimonial increases when the money would have been received through the means of payment. In this case, they must identify the entity of the financial system that mediated the transfer of funds.

The return of the money received on loan without using the means of payment, will be considered as an increase in equity. If you have used the means of payment, you must justify the origin of the money returned.

Those exempt from using the means of payment for complying with the conditions referred to in the last paragraph, subparagraphs a) to c), of article 6 of Law No. 28194, may justify the capital increases when the loan contracts include document of certain date and contain at least: i) The denomination of the currency and amount of the loan; ii) The date of delivery of the money; iii) The agreed interest; and, iv) The form, term and dates of payment.

Precisions on the mutuals

Regarding the mutuals, the following is considered:

They may justify capital increases with the interest from the loans, when the loan contracts are recorded in a document of a certain date and contain at least: i) The denomination of the currency and amount of the loan; ii) The date of delivery of the money; iii) The agreed interest; and, iv) The form, term and dates of payment.

It should be noted that the certain date of the document that contains the contract and the date of loan disbursement must be prior to or coincide with the dates of the acquisitions, investments, consumption or expenses that are intended to be justified.

Finally, without prejudice to what is stated in the preceding paragraphs, Sunat will be able to verify if the operation is reliable.

Source: The Law