Sunat had been recalculating losses reported by taxpayers in past years (already prescribed), looking for cases in which they have been erroneously determined. Thus, the tax entity could then collect the difference from the companies.
The Supreme Court issued a new Cassation by means of which it restricted the powers of the Sunat to supervise the tax obligations of taxpayers corresponding to periods that have already prescribed.
Specifically, the Supreme Court has established that the Sunat cannot modify the tax loss of taxpayers corresponding to prescribed years. Likewise, a period that has not yet expired cannot be affected based on this modification.
Although this might seem logical, it really was not, since, in practice, the Sunat had been recalculating the losses of those (prescribed) years in order to generate higher taxes to be paid by taxpayers years later.
For example, it could happen that, in 2002, a person declared a loss of S / 1 million and has been dragging said loss in his favor for years. Then, in 2008, the Sunat determined that these losses were not S/1 million, but S/500,000, so the taxpayer would have benefited from applying an undue loss of S/500,000, which, then, had to be compensated. paying S/500,000 more to the collector in 2008.
What is the position of the Sunat?
But, how could Sunatsi do this since the law establishes that, after four years, the administration cannot audit the tax results of the taxpayers?
The Sunat claimed that it could modify the calculation of the losses of prescribed years since the taxpayer was not being charged for what was not paid in those periods, but rather the effect of a correction (of the determination of the tax) was being transferred to the current year, explains Percy Bardales, Litigation Partner at EY Peru.
He adds that the Sunat maintained that the norm that establishes that it only has four years to determine the tax obligations did not apply to the carryover of losses from previous years.
“What the Sunat and the Tax Court say, in good account, is that if something in a prescribed period has an effect on the current affidavit, it is as if the action of the Sunat had not prescribed,” points out Katarzyna Dunin- Borkowski, a director of PricewaterhouseCoopers.
The criteria applied
However, what is alleged by Sunat is not correct, according to the Supreme Court.
For the Court, the position of the Sunat “has not been supported by a specific norm that has said normative meaning”, and adds that “the tax provisions cannot be extended to cases other than those indicated in the law”.
Bardales indicates that, previously, the Supreme Court had ruled in a manner contrary to the current one, indicating that the Sunat could carry out this reliquidation of the losses of years already prescribed.
“Sunat’s new position enforces legal certainty in tax matters,” adds the lawyer.
Dunin-Borkowski adds that there are still a number of cases in litigation on this very matter today and that, from now on, they should all be resolved in the same way as the present controversy.