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This Alert is a reminder of the Formal Obligations to present:

· The Export and Import Affidavit Form (DJCEI) effective as of January 1, 2019 and

· The preparation of the Report that accredits the Transfer Pricing methodology used to Analyze Commodities Exports and Imports that justifies the choice of the selected method according to the information presented to SUNAT through the DJCEI.

   1. Background:

In December 2018, Supreme Decree 340-2018-EF was published, which amended article 113-A of the Regulations of the Income Tax Law and incorporated numeral 3, in which it was established that those taxpayers who carry out operations of export or import of copper, gold, silver, zinc, fishmeal, corn and wheat (products that qualify as “commodities” for tax purposes in Peru) must submit to SUNAT a communication with the character of an Informative Affidavit - fifteen days before the start of the embarkation or disembarkation, as appropriate- that it contains certain information related to the economic operation, as well as the contract or any other document in which the terms of the commercial agreement are stated (in this regard see our Transfer Pricing Alert in Peru No. 004-2019-PER).

 However, the aforementioned Supreme Decree No. 340-2018-EF indicates in its Sole Transitory Supplementary Provision that, as long as the Superintendency Resolution establishing the form and conditions for the presentation of the communication described in the previous paragraph does not enter into force , this must be sent in the XLS format model (modified in June 2019) to the following email address This email address is being protected from spambots. You need JavaScript enabled to view it..

 2. Comments:

It is worth mentioning that, to date, the Tax Administration has not issued any Resolution that contains the modality of presentation of said document; therefore, an email should continue to be sent to the email address indicated above; However, the update of the XLS format model that relates the information presented with the Customs Declaration of Goods (DAM), which is located in the following link:

http://orientacion.sunat.gob.pe/index.php/empresas-menu/impuesto-a-la-renta-empresas/fiscalidad-internacional-empresas/precios-de-transferencia-obligaciones-formales/7186-07- new-formal-obligation-for-exporters-and-importers-of-the-goods-identified-in-annex-02-of-dsn-340-2018-ef

Additionally, the taxpayer subject to the aforementioned formal obligations must take into account the following:

The communication and presentation of the XLS format model has the character of an Affidavit, so not presenting said Communiqué for each export or import would generate a fine, which is indicated in Section 2 of Article 176 of the Tax Code, equivalent to 0.6% of net income, with a minimum limit of 10% of 1 UIT and a maximum of 25 UIT (approx. S / 105,000 or its equivalent $ 31,000); It is worth mentioning that if the taxpayer voluntarily submits the communication, before SUNAT requires it, there is a 100% reduction in the fine.
If the taxpayer does not present the said communication or is presented in an extemporaneous or incomplete manner, or contains information not in accordance with the agreement, the date of the quotation value will be considered as the date of shipment of exported goods, which would imply a possible application a PCNC in its external version (what is known as the Sixth Method).
This is the third time that the Peruvian Tax Administration tries to apply the sixth method (the first time goes back to 2013), and has taken into account the two failed previous experiences. Thus, today the “burden of proof” is imposed on the taxpayer. If he does not fulfill his obligations correctly, when calculating his Income Tax corresponding to fiscal year 2019, he must pay Income Tax in Peru on an international price (sixth method), which can give quite different results at real sales prices (on which the taxpayer probably paid until fiscal year 2018).
Although the Export and Import Affidavit Declaration (DJCEI) format that allows to attach the Technical Report that supports the use of the Transfer Pricing methodology other than the sixth method has not yet been enabled, it is necessary that the taxpayers carry out the respective technical analysis and see the tax impact of what

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