Legislative Decree No. 1121 incorporated Standard XVI to the Preliminary Title of the Tax Code, which contains a general anti-avoidance rule in order to grant the Tax Administration the necessary power to combat evasive conducts that may occur and that affect constitutional principles such as the duty of solidarity, contributive capacity, among others.
Text of Standard XVI of the Preliminary Title of the Tax Code (*)
" In order to determine the true nature of the taxable event, SUNAT will take into account the acts, situations and economic relationships actually performed, pursued, or established by the tax debtors.
In the event that cases of tax evasion are detected, the National Superintendency of Customs and Tax Administration - SUNAT is empowered to demand the tax debt or reduce the amount of the balances or credits in favor, tax losses, tax credits or eliminate the tax advantage, without prejudice to the restitution of the amounts that have been unduly refunded.
When the realization of the taxable event is totally or partially avoided or the taxable base or the tax debt is reduced, or balances or credits in favor, tax losses or credits for taxes are obtained through acts in respect of which the following circumstances, supported by SUNAT, are present concurrently:
That individually or jointly they are contrived or improper for the achievement of the result obtained.
That their use results in legal or economic effects, other than tax savings or advantages, that are equal or similar to those that would have been obtained with the usual or proper acts.
SUNAT will apply the standard that would have corresponded to the usual or proper acts, executing what is indicated in the second paragraph, as the case may be.
For this purpose, tax credits are understood to be the balance in favor of the exporter, tax reimbursement, anticipated recovery of the General Sales Tax and Municipal Promotion Tax, definitive refund of the General Sales Tax and Municipal Promotion Tax, restitution of customs duties and any other similar concept established in the tax regulations that do not constitute undue or excess payments.
In case of simulated acts qualified by SUNAT according to the provisions of the first paragraph of this rule, the corresponding tax rule shall be applied, taking into account the acts actually performed.”
(*) The general Anti-avoidance rule is the one contained in the second to the fifth paragraph of Standard XVI of the Preliminary Title of the Tax Code.
Reference: Supreme Decree No. 145-2019-EF