Next year Legislative Decree 1532 enters into force, which created the figure of the “subject without operational capacity”, a new tax figure that seeks to reduce tax avoidance. According to experts, however, the norm could be unconstitutional.

When a company is classified as a subject without tax capacity, the operations carried out with it will not allow the exercise of the right to tax credit or any other right or benefit derived from the IGV, or to support costs or expenses for purposes of Income Tax.

That is, the receipts issued by said subjects may not be used for tax discount or to justify income.

What does the standard look for?

To be classified as a taxpayer without tax capacity, the National Superintendence of Customs and Tax Administration (Sunat) will evaluate the infrastructure or assets of the company, assets, personnel and any other situation that may show that the subject “does not have the economic resources, financial, material, human and/or others, or that these are not suitable to carry out the operations for which the payment vouchers are issued” that are being used by other companies to obtain some tax benefit.

Strictly, it seeks to put an end to “false invoice sellers” by identifying them and removing any tax effect that the invoices they issue may have.

As explained by Katarzyna Dunin-Borkowski, director of PricewaterhouseCoopers, “it is estimated that 8% of formal operations are supported by false payment vouchers, that they do not pay IGV or IR and that the formal companies that buy them use them to discount expenses or costs ”.

Unconstitutional?

Raúl Odria, partner at Jamis Dalguerre Abogados, points out that the rule could be unconstitutional, however, since he points out that payment vouchers issued by the subject without operational capacity before being qualified with said condition “will lose their deductibility.”

This, provided that they are receipts issued after the publication of the Decree, in March 2022.

That is, it would be affecting vouchers issued before the law entered into force on January 1, 2023 and would be retroactive, which is unconstitutional.

Dunin-Borkowski, points out, however, that the norm “is not retroactive” and, therefore, it is not unconstitutional.

The lawyer points out that in 2015 the Mexican courts resolved a dispute over a rule almost identical to the Peruvian one, noting that, in effect, it was not retroactive, and that the same should apply in Peru.

As indicated by the Supreme Court of Justice of the Mexican Nation, the creation of the figure of subjects without operational capacity, as well as the loss of deductibility of the invoices that were issued in past years “does not alter or modify past factual situations, since [ it] seeks to verify the performance of a past event without eliminating the effects that the tax receipts already had or evidencing a situation that was not present from the beginning, without being able to modify it because the operation that the receipts were intended to cover never existed.”

In other words, under the Court’s precept, no past event is altered, but rather, on the contrary, invoices issued for operations that never really happened are given the effect that they should always have.

Miguel Aljubar, an accountant specializing in taxes, points out, however, that they could end up “cataloging as” not real “operations that were carried out, but in which the taxpayer is not 100% formal or was not diligent with his documentation. The qualification of subject without operational capacity I think will end up punishing in many cases “righteous for sinners” “.

For his part, Eduardo Joo, partner of the Amprimo study, indicates that the procedure for appointing subjects without operational capacity, as well as the effect on the invoices they issue, “in the terms in which it is regulated, suffers from various vices of unconstitutionality”.

As explained by the lawyer, the decree “affects the principle of legal certainty to the extent that it applies the effects of the declaration of subject without operational capacity to invoices issued before the publication of said attribution.”

It points out that “third parties in good faith will find themselves in a situation of real uncertainty, since they will always be exposed to future acquisitions made with third parties, which they considered legitimate at the time, but which were later declared subject to without operational capacity.

Source: The Peruvian