Today Supreme Decree 233-2022-EF was published (see the document below), which modifies the regulations of the Income Tax Law and introduces a number of changes to the legislation related to the unjustified increase in wealth and how to justify that a loan does not qualify as such.
The unjustified increase in assets occurs when Sunat detects irregularities between the declared income and the level of assets of the audited person, as well as their consumption patterns.
Taxpayers can demonstrate that the increase in consumption or in their assets is not an “unjustified income” alleging that said increase is really a loan, not subject to income tax.
The changes introduced by the Supreme Decree make it difficult to use said loans to justify that there is no such increase.
From 2023, if a person receives a loan from a “non-cooperative” country (tax haven), he must notify Sunat about said loan at the time of making the contract. Otherwise, it cannot be considered later to justify assets or expenses incurred by the taxpayer.
Likewise, the figure of “subjects without operational capacity” is created and it is established that the loans received from said persons may not be used for the aforementioned purpose.
As Roberto Casanova-Regis, a partner at KPMG Peru, explains, “the decree hardens the form of proof. The new numeral 3 introduced to article 69-A of the regulation establishes that if the loan comes from a resident of a tax haven, they must be informed about it at the time of signing the loan contract.
Casanova-Regis indicates that this seeks to prevent money laundering or irregular use of it, such as to finance terrorism, but adds that “the fact that an entity comes from a tax haven does not undermine its ability to give a loan. There are well-known banks with offices in tax havens”.
For her part, Johana Timana, partner of the PPU firm, explains that “even if the funds do not come from an entity in a tax haven, but are channeled through one, the taxpayer will also be obliged to present a communication making this known. loan to Sunat”.
According to Casanova-Regis, now it would be “generating a pseudo-presumption that if a loan comes from a tax haven, said loan “smells bad” and must be illicitly and illegally obtained.”
Timana adds that this change can cause problems, since many countries that are on the lists of non-cooperative countries (tax havens) have already made significant progress in terms of transparency and delivery of information, so, despite the fact that they are qualified as such, they have a much better position than one might believe and this would affect possible business.
Subjects without operational capacity
On the other hand, it is established that the loan will only be valid to justify that an income is not an unjustified capital increase if said money came from a subject with operational capacity.
In other words, loans will only be justified if they come from people who have the necessary funds to fund the loan they made.
Timana explains that the Sunat will establish who does or does not have operational capacity, demarcating the “ghost” entities.
“This affects the debtor because, while an entity appeals its appointment as a subject without operational capacity before Sunat, the loan they granted cannot be used to claim an unjustified non-increase in assets,” says Timana.