Legislative Decree 1529 does not include any reference to the obligation to use the Peruvian banking system for payments made to acquire Peruvian shares indirectly from 1 January 2012 and 31 March 2022.
Though recently issued Legislative Decree 1529 clarified that taxpayers do not have to use the Peruvian banking system for payments made for direct or indirect transfers of shares on or after 1 April 2022, it did not clarify whether taxpayers must use the Peruvian banking system for payments made for indirect transfers of shares from 1 January 2012 to 31 March 2022. As a result, uncertainty remains as to whether the Peruvian tax authority will certify the tax basis of Peruvian shares acquired indirectly during that time if the taxpayer did not use the Peruvian banking system to pay for those shares.
Background
In Ruling 4-2022-SUNAT/7T0000 (issued 10 January 2022), the Peruvian tax authority established guidelines for when taxpayers must use the Peruvian banking system to pay for indirect transfers of shares.1 Under the ruling, a taxpayer that acquired Peruvian shares indirectly before 2012, does not have to prove it used the Peruvian banking system to pay for the shares.
Ruling 4-2022-SUNAT/7T0000, however, did not address whether taxpayers that made payments after 1 January 2012, for indirect transfers of Peruvian shares had to use the Peruvian banking system for their tax basis to be recognized. (See EY Global Tax Alert, Peruvian Tax Authority establishes guidelines on using Peruvian banking system to pay for indirect transfers of shares, dated 1 February 2022.
The Peruvian tax authority adopted the position of requesting payment through the Peruvian banking system to certify the tax basis in both indirect and direct transfers of Peruvian shares. The tax authority’s position has led to situations in which the tax authority rejects the tax basis because the taxpayer did not use the Peruvian banking system to make payments for direct and indirect share transfers.
Payments to nonresidents for direct and indirect transfers of Peruvian shares
On 3 March 2022, Peru’s President enacted Legislative Decree 1529, amending Law 28194, which regulates the use of the Peruvian banking system for tax purposes. The decree clarified that payments for direct and indirect transfers of Peruvian shares do not need to go through the Peruvian banking system, beginning 1 April 2022; rather those payments may be made through foreign banking/financial entities. (See EY Global Tax Alert, Peru’s President amends law regulating use of Peruvian banking system for tax purposes, dated 9 March 2022.
Legislative Decree 1529, however, does not include any reference to acquisitions made from 1 January 2012 to 31 March 2022. Given the lack of guidance for that period, it is unclear whether the tax authority will certify the tax basis of Peruvian shares indirectly purchased on or before 31 March 2022, if the taxpayer did not use the Peruvian banking system to pay for the shares.
For additional information with respect to this Alert, please contact the following:
Ernst & Young Asesores S.C.R.L, Lima
Roberto Cores
Ramón Bueno-Tizón
Ingrid Zevallos
Ernst & Young LLP (United States), Latin American Business Center, New York
Lucas Moreno
Ana Mingramm
Pablo Wejcman
Enrique Perez Grovas
Ernst & Young Abogados, Latin America Business Center, Madrid
- Jaime Vargas
Ernst & Young LLP (United Kingdom), Latin American Business Center, London
- Lourdes Libreros
Ernst & Young Tax Co., Latin American Business Center, Japan & Asia Pacific
Raul Moreno, Tokyo
Luis Coronado, Singapore
For a full listing of contacts and email addresses, please click on the Tax News Update: Global Edition (GTNU) version of this Alert.
