They suggest making the pertinent regulatory modifications in order to correctly attribute the character or nature of the corresponding communication and avoid possible questioning, especially regarding the challenge.
The purpose of this article is to support our discordant position about the legal nature assigned to the communication of income as collection provided for by Superintendency Resolution No. 184-2017 / SUNAT, which regulates the income procedure as collection of funds deposited in the drawdown account, within the framework of the tax obligation payment system, better known in the tax jurisdiction as SPOT.
In accordance with the Single Ordered Text (TUO) of Legislative Decree 940, approved by Supreme Decree No. 155-2004-EF and amending regulations, the SPOT is established, whose purpose is to generate funds, through deposits made by the reporting entities in the accounts opened in the Banco de la Nación, intended to ensure the payment of the tax debts of the holder of these accounts, having approved provisions for its application through Superintendence Resolutions No. 183-2004/SUNAT (approved provisions for the application of the system) , 266-2004/SUNAT (approved provisions applicable to those subject to the tax on the sale of milled rice), 073-2006/SUNAT (approved provisions for the application of the system to the transportation of goods by land), 057-2007/ SUNAT (approved provisions for the application of the system to public passenger transport by land) and 375-2013/SUNAT (established exceptions and flexibility of income as collection contemplated by the system, as well as requirements and procedure to request the return).
Numeral 9.3 of article 9 of the aforementioned TUO indicates the reasons for which the Banco de la Nación will enter as collection the amounts deposited in the drawdown accounts in accordance with the procedure established by the National Superintendency of Customs and Tax Administration (Sunat ), when any of the situations described in this rule arise with respect to the account holder.
Thus, subparagraph b) of article 13 of the aforementioned TUO indicates that by means of a Superintendency Resolution, Sunat will regulate matters related to records, the form of accreditation, exclusions and the procedure to carry out the deduction and/or deposit, the treatment that must be be applied to undue or excess deposits to the system and the mechanism of application or destination of the amounts deposited as collection, among other aspects.
By virtue of the powers granted to Sunat indicated in the preceding paragraphs, Superintendency Resolution No. 184-2017/SUNAT was issued, which regulates the entry procedure as collection of funds deposited in the drawdown account when regarding the holder of the account it is detected that he has incurred in any of the causes that give rise to the initiation of this procedure.
Thus we have that, in accordance with numeral 1.3 of article 1 of the aforementioned resolution, communication is defined as the “administrative act through which Sunat communicates to the account holder the detection of any of the causes that enable it to enter as collection the funds deposited in the drawdown account”.
Likewise, according to numeral 1.5 of the same article, the procedure is defined as the “entry procedure as collection of the funds deposited in the drawdown account”. However, regarding the beginning of the procedure, article 4 of the resolution in question:
– The procedure begins with the notification of the communication to the account holder. The communication must contain the following minimum data:
a) Surnames and name(s) or denomination or business name.
b) RUC number.
c) Banco de la Nación drawdown account number.
d) Detail of the cause(s) that give rise to the procedure. In the case of the cause regulated in subparagraph a) of numeral 9.3 of article 9 of the law, the communication also indicates the structure of the file, called “Association Table”, which the account holder can attach to the Form Virtual No. 4702.
e) Term and form for the presentation of the discharges against the imputed cause(s).
– The communication can be notified by the Sunat:
a) Through SOL Notifications: In this case, the notification is made on the last business day of each week, in accordance with the provisions of numeral 4.2 of article 4 of Superintendency Resolution No. 014-2008/SUNAT and amending regulations.
b) Through any of the forms indicated in subsections a) and c) of article 104 of the Tax Code. Regarding the presentation of the discharges, article 5 of the resolution prescribes that the discharge with respect to the communication can be formulated by the account holder within a period of ten business days from the date on which it takes effect. communication notification. This, in accordance with article 3 of the same rule, which approves the Virtual Form No. 4702, Request for Discharge of Income Causes as Collection.
On the other hand, regarding the conclusion of the procedure, article 6 of the resolution in reference indicates that, within the period of 20 business days following the date on which the term established for the presentation of the discharges expires, the Sunat The procedure concludes with the notification of the following administrative acts:
Proof of result: It is issued when the evaluation carried out determines the non-existence of the imputed cause(s), for which the request for discharge is declared admissible and the income is not available as collection of the funds deposited in the withdrawal account.
Intendancy or zonal office resolution: It is issued when the evaluation carried out confirms the existence of the cause or of at least one of the imputed causes, due to the fact that the account holder did not sufficiently disprove these imputations, for which reason declares the discharge request inadmissible and the income is arranged as collection of the funds deposited in the drawdown account.
These resolutions are also issued when the account holder does not present any defense against the imputed cause(s), which is why the income is provided as collection of the funds deposited in the drawdown account.
Legal nature assigned by Superintendency Resolution No. 184-2017/SUNAT to the “Communication”
From the systematic interpretation of the current regulation regarding the income procedure as collection, we could consider that it begins with the notification to the administrator of the detection of any of the causes that enable the income as collection of the funds deposited in your withdrawal account.
This with the purpose that, within the term of law, it presents the discharges that it deems pertinent so that the tax administration proceeds to the corresponding evaluation, after which it will only be able to issue a definitive pronouncement as to whether, in effect, it has occurred the so-called enabling (causal) or not, and by virtue of it determine the origin or not of the income as collection.
In this order of ideas, it is clear that the purpose of the communication is to “make known” to the taxpayer an “initial – preliminary inconsistency” that the administration would have detected as a consequence of its control actions; however, this notification implies that, in order to be certain of the origin of the preliminary detected inconsistency, in observance, among others, of the principles of observance of due process, of legality, of safeguarding the right of defense, the The taxpayer can –within the period granted for this purpose– present their defenses so that they can be merited by the tax administration before issuing the final pronouncement within the framework of this procedure.
Thus, in the opinion of the undersigned, it flows from the foregoing that the communication sent by the administration comes to constitute an act of procedure and not an administrative act itself, since, as well pointed out by the prominent professors Orenes and Pérez ( 1996) before the analysis of a similar issue in administrative matters, this document “does not determine the impossibility of continuing with the procedure, nor does it produce defenselessness, not deciding in any way, directly or indirectly, the substance of the matter in such a way that it puts an end to the administrative means or makes impossible or suspends its continuation”.
It must be taken into account that, for an act to acquire the status of an administrative act, it must comply with what is expressly stated in article 1 of the TUO of the General Administrative Procedure Law (LPAG) (3), which prescribes that they are administrative acts, the statements of the entities that, within the framework of public law regulations, are intended to produce legal effects on the interests, obligations or rights of those administered within a specific situation.
In accordance with this, article 29 of the same TUO states that administrative procedure is understood as the set of acts and procedures processed in the entities, leading to the issuance of an administrative act that produces individual or individualizable legal effects on interests, obligations or rights. of those managed.
Based on the foregoing, we are of the opinion that it will constitute an administrative act “as such” within the framework of the income procedure as collection regulated by Superintendency Resolution No. 184-2017/SUNAT, only the proof of result or the resolution of the administration or zonal office provided for in article 6 of the aforementioned resolution, since through these documents the Tax Administration issues the final pronouncement in the corresponding instance regarding the administrative procedure initiated.
It is clear that, before the pronouncement is issued, the administrator may file the appeals that the law allows him in case he is dissatisfied.
Extrapolation of this character in the tax sphere
In the same order of reasoning, and for illustrative purposes only with respect to the operation of a related issue in the tax sphere (remember that the “Income as Collection – SPOT” in principle is governed by the special regulations of the TUO of Legislative Decree 940 and complementary regulations, as well as in a supplementary way by the TUO of the LPAG, we can address the treatment of the “Requirement” within the framework of a tax control procedure.
Thus we have that, according to the Regulations of the Examination Procedure in force, this procedure begins on the date on which the notification to the audited subject of the cover letter and the first requirement takes effect, the latter being understood as the “document”, by means of which the audited subject is requested to display and/or present reports, analyses, minute books, records and accounting books and other documents and/or information, related to events likely to generate tax obligations or to audit unaffected, exemptions or benefits tributaries.
It is clear that, per se, the requirement is nothing more than an “instrument” through which, among other purposes, the administration requests various information or the support of certain inconsistencies in the future of the administrative procedure, whose “result” will necessarily culminate with the issuance of the corresponding determination resolution and, if applicable, fine resolutions or payment orders, against which the taxpayer may file the appeal that he deems pertinent in the event that he does not agree (with which recognizes the nature of an actionable act that covers any administrative act).
In other words, from our point of view, the purposes of the “Communication of income as collection” from the regulations that regulate it, as well as that corresponding to the “Requirement”, are closely similar, in the sense that, through both mechanisms, the administration initiates a certain procedure; however, the final result will be contained in the corresponding document that concludes this procedure, which obviously must be duly motivated and will contain the merit made by the resolving body with respect to those acted for the final pronouncement. In view of this, it would be clear that the requirement as such would not meet the minimum requirements to be considered an administrative act itself, but the latter would be given by the document that is evacuated and that terminates the control action, as is the case of the determination resolution, which according to article 29 of the TUO of the LPAG, is intended to “produce individual or individualizable legal effects on interests, obligations or rights of the companies”, in this particular case, in the tax field.
In view of the foregoing, we allow ourselves to suggest that the respective regulatory modifications be made in order to correctly attribute the character or nature of the “Communication of income as collection” object of this article. If this is not the case, the question that immediately arises is: in the current norm, could the aforementioned communication be challenged?
We believe that this would be a nonsense caused not by an inadequate legislative technique, but quite the contrary, by a fundamental misconception about the legal nature expressly attributable by the “administrative legislator” to this document.
Source: The Peruvian