New income tax guidelines




They require the application of interest on payments on account.


The Supreme Court of Justice established new binding jurisprudential rules regarding the application of interest generated by payments on account of income tax (IR).

This through Cassation No. 6619-2021-Lima, issued by the Fifth Chamber of Transitory Constitutional and Social Law of the highest instance, which resolves a subject of controversy on a recurring basis both in administrative and judicial instance.

Thus, the judiciary defines the legal nature of “payments on account”, which gives it a “tax” character, since it is linked to the main obligation, later being integrated into the tax from which they are derived.

Therefore, he adds, it has its own rules such as those derived from its birth and accrual, so that the generation of interest responds to said rules that inform them.

For this court, likewise, the collection of default interest corresponds to the payments on account of the IR, when these were not made in the manner and the full amount that corresponds at each opportunity.

Therefore, the precedent leaves without effect a previous one contained in Appeal No. 4392-2013-Lima, which despite not containing binding rules regarding the treatment of interest generated by payments on account of the IR, generates confusion since it is derives from a case in the matter.

The precedent also sets guidelines regarding the treatment of the capitalization of interest, which generates an excessive increase in the tax debt and, therefore, the violation of the principles of non-confiscation and reasonableness. Hence, article 33 of the Tax Code does not apply.

However, the highest court makes it clear that these rules are not applicable to contentious-tax proceedings concluded or with the quality of res decided and judicial processes (contentious-administrative or constitutional) that have a final judicial resolution or with the quality of res judicata. , even if they are in the stage of executing said decisions.



The court’s decision also updates the rules for the interpretation of tax regulations, in compliance with rule VIII of the preliminary title of the Tax Code. For this reason, it considers it possible to apply all the methods of interpretation and integration admitted by law, unless, through interpretation or integration, it is intended to create taxes, establish sanctions, grant exemptions, or extend the tax provisions to persons or cases other than those designated by law. This in observance of the principles of legality or reserve of law, and legal certainty.


Source: The Peruvian

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