Ruling would allow Sunat to collect customs tax debts in a longer term. Experts allege that the Supreme Court made a “retroactive interpretation” of the regulations.
The Supreme Court issued a new cassatory ruling, number 7275-2021, which creates a new binding precedent that could lead to a number of processes initiated before 2018 ruling in favor of the tax administration.
This would lead to a greater number of collections in cases that are still pending from years ago.
The sentence indicates that, in calculating the term to collect customs taxes, the provisions of the Tax Code must be applied and not what is indicated in the General Customs Law.
In this regard, Katarzyna Dunin-Borkowski, director at PricewaterhouseCoopers, explains that, until recently, the General Customs Law indicated that after four years of generating the tax obligation subject to inspection, Sunat could no longer collect the tax debts corresponding to the case.
On the contrary, according to the Tax Code, it must be understood that the Sunat has a term of four years to determine the debt and, after said term, it has another four years to collect it. That is, it has twice the term set by the Customs Law.
The impact of the Supreme Court ruling
In this sense, by declaring that, in this case, the Tax Code term calculation form should be applied and not that of the General Customs Law, the Supreme Court is allowing Sunat to collect past debts for four more years.
Dunin-Borkowski indicates that there are a large number of Supreme Court cases that will be affected by this ruling. “This is what is discussed the most in the Supreme Court,” she emphasizes.
In 2018, Legislative Decree 1433 was published, which modified the General Customs Law and equated it, in terms of term calculations, to the Tax Code, therefore, as mentioned above, the aforementioned appeal will have an impact on cases initiated before of that year.
Controversy surrounding the Court’s decision
The Supreme Court ruling has generated controversy because, according to the provisions of the General Customs Law, in customs matters the courts should only refer to the Tax Code if the same Law does not contemplate a specific issue.
According to Jorge Picón, a partner at the Picón studio, the Supreme Court is making a retroactive interpretation of the law, which he considers openly unconstitutional.
“There is a problem of legal certainty. The prescription is a right that means that the persecution of the administration is not eternal. If now it turns out that a criterion that was imposed years later in previous cases is going to be applied, the sentence goes beyond what the norm said”, indicates Picón, who points out that there would be no problem if the General Customs Law already had picked up this concept years ago.
“This is worrying because, in these cases, there should be no referral to the Tax Code. With this criterion, the supreme court is not applying an express and special law, and is preferring the general one, because in this way it manages to say that the tax debt is not prescribed, when it is,” Dunin-Borkowski emphasizes.
“The State has rules of the game and they have to be respected. If they don’t want the prescription, they can annul it, but you can’t change the rules of the game in the middle of a case, because that only creates insecurity”, warns the lawyer.