The Supreme Court has established that the collection of default interest derived from such modification is appropriate.
Cassation judgment No. 6619-2021-Lima has been published on the website of the Judiciary, through which the Supreme Court has changed its criteria and has established with a binding nature -among other matters- that the collection of default interest is appropriate derived from the modification of the coefficient of payments on account of income tax (IR).
Below is a brief summary of the criteria established by the Supreme Court: Guidelines The controversial matter consisted of establishing whether or not to apply the collection of default interest derived from the modification of the coefficient of payment on account of income tax (PAC IR ), derived from a situation subsequent to the declaration and original payment of this concept.
For this purpose, the Supreme Court considers it necessary to previously establish the nature of the payments on account. Thus, it acknowledges that in Cassation No. 4392-2013, a previous binding precedent on the matter, it had established that PAC IR are not taxes (section 3.5). Through this appeal, it concludes that the PAC IR are singular tax obligations, which are closely linked to the main tax obligation, finally being integrated into the tax from which they are derived, but which have their own rules (numeral 3.8).
Likewise, it indicated that article 34 of the Tax Code (CT), modified by Legislative Decree No. 1528 (published on 3.3.2022), does not establish a modification, but a precision on the origin of the collection of default interest derived from the modification of the coefficient of the PAC IR (numeral 3.9).
It indicates that the introduction of the third paragraph of article 34 of the CT generates a departure from the criteria established in Cassation No. 4392-2013 (which concluded that the aforementioned article did not authorize the tax authority to demand default interest generated by omissions to the PAC IR resulting from modifications subsequent to the presentation of the affidavit, without prejudice to the fact that these modifications originate from the presentation of corrective affidavits or due to objections established in an audit) (numeral 3.9).
Therefore, it considers that the intention of the legislator with the incorporation of the third paragraph of article 34 of the CT, was that even when there was a previous binding criterion with a different position (Cassation No. 4392-2013), this previous criterion would no longer have application with this new standard as it is of a contrary wording. For the purposes of the foregoing, the Court indicated that the third paragraph of Article 34 of the LC was an interpretative and non-modifying rule, since its content was limited to declaring the meaning and scope of a pre-existing rule, without introducing alterations and modifications.
In accordance with the provisions of article 34 of the CT and literal a) of article 85 of the IR Law (LIR), the payment of default interest that has not been timely paid in full for this tax obligation corresponds.
This is so, because the lack of payment or partial payment will imply that the State does not have the amounts that correspond by law for its disbursement (section 4.5). Releasing from the payment of late interest those who merely make a payment for this concept within the terms, even if it is less, would imply an incentive for taxpayers to be able, due to particular modifications or rectifications of the calculation base of the PAC IR , pay smaller or smaller amounts than those established by law, based solely on the fact that they made the PAC IR within the monthly periods set to deposit them (numeral 4.6).
Partial or incomplete payment cannot be considered a timely payment, because it does not extinguish the entire debt within the established period (section 4.9).
Based on the foregoing, the Supreme Court has established the following binding criteria on the application of default interest derived from the modification of the coefficient of the PAC IR: The nature of the PAC IR is that of a tax obligation, since they are linked to the main tax liability.
Likewise, they have their own rules, such as those of their origin and accrual, so the generation of late payment interest responds to these own rules that inform them (section 5.4.1). The collection of default interest corresponds to the PAC IR, when they were not made in the manner and the full amount that corresponds at each opportunity (numeral 5.4.2).
Regarding the interpretation of tax regulations, the rules contained in Regulation VIII of the Preliminary Title of the TC must be strictly observed, in observance of the principles of legality, reserve of law and legal certainty (numeral 5.4.5).
Source: The Peruvian