Substantive Parameters – General Anti-Avoidance Rule
Substantive Parameters
Supreme Decree No. 145-2019-EF, published on May 6, 2019, approved the substantive parameters to apply of the general Anti-elusive rule.
Article 3.- Powers of SUNAT and general anti-avoidance rule
The power provided by the general anti-avoidance rule and Article 62 of the Tax Code is exercised with respect to the Constitution and the fundamental rights it recognizes and is not subject to constitutional control. The decisions of the administration must contain an adequate motivation, both of the facts and of the interpretation of the rules or the reasoning made by the official.
Article 4.- Undefined legal concepts
Substantive Parameters
Supreme Decree No. 145-2019-EF, published on May 6, 2019, approved the substantive parameters to apply of the general Anti-elusive rule.
Article 3.- Powers of SUNAT and general anti-avoidance rule
The power provided by the general anti-avoidance rule and Article 62 of the Tax Code is exercised with respect to the Constitution and the fundamental rights it recognizes and is not subject to constitutional control. The decisions of the administration must contain an adequate motivation, both of the facts and of the interpretation of the rules or the reasoning made by the official.
Article 4.- Undefined legal concepts
The qualification of acts as contrived or improper as required by the general anti-circumvention rule implies a margin of appreciation to determine the content and extent of such indeterminate legal concepts applicable to a specific situation or case, provided that such qualification is not manifestly unreasonable or disproportionate to the circumstances in which it is used.
Article 5.- Tax planning strategy
5.1 The application of the consequences of the general anti-avoidance rule does not apply to acts carried out in the exercise of the tax planning strategy.
5.2 The performance of acts or the configuration of situations or economic relationships where the circumstances set forth in subsections a) and b) of the third paragraph of standard XVI of the Preliminary Title of the Tax Code are present do not constitute the tax planning strategy.
Article 6.- Enunciative situations in which the application of the general anti-avoidance rule might be considered.
The auditing agent may evaluate the application of the general anti-circumvention rule when identify that in the final audit procedure any of the situations such as those mentioned in the following list, which are analyzed in accordance with the provisions of article 7, are present.
a) Acts, situations, or economic relationships in which there is no correspondence between the benefits and the associated risks; or have low or scarce profitability or do not adjust to the market value or lack economic rationality.
b) Acts, situations, or economic relationships that are not related to the type of ordinary operations to achieve the desired legal, economic or financial effects.
c) Performing activities similar or equivalent to those carried out through corporate entities but using non-corporate entities.
d) Corporate or business reorganizations or restructurings with little apparent economic substance.
e) Carrying out acts or operations with parties resident in non-cooperative or low or zero taxation countries or territories or with parties that qualify as permanent establishments located or established in non-cooperative or low or zero taxation countries or territories or with parties that obtain income, income or profits through a non-cooperative or low or zero taxation country or territory; or subject to a preferential tax regime for their operations.
f) Transactions at zero or low cost, or mediating figures that end up minimizing or canceling costs and non-taxable gains for the parties involved.
g) Use of legal or business figures, acts, contracts, or unusual schemes that contribute to the deferral of income or revenues or to the anticipation of expenses, costs or losses.
Article 7.- Considerations for the analysis of acts, situations, or economic relationships
7.1 In order to apply the provisions of the fourth paragraph of standard XVI of the Preliminary Title of the Tax Code, the circumstances set forth in subsections a) and b) of its third paragraph must be present concurrently.
7.2 The purpose of the general anti-avoidance rule is to discourage and, as the case may be, to pursue the performance of acts, situations or economic relations that have as one of their main purposes to obtain a tax saving or advantage, in accordance with the provisions of the third paragraph of the standard XVI of the Preliminary Title of the Tax Code.
7.3 In view of the above, the identification of the circumstances set forth in subsections a) and b) of the third paragraph of standard XVI of the Preliminary Title of the Tax Code, implies taking into consideration in the evaluation and analysis, among others, the following aspects, which are of an enunciative nature and are not prescriptive or cumulative:
a) The manner in which the act or acts were celebrated and executed.
b) The form and substance of the act(s), situations, or economic relationships.
c) The time or period in which the act or acts were entered into and the extent of the period during which the act or acts were performed.
d) The result achieved under the rules of the specific tax under analysis, as if the general anti-avoidance rule did not apply.
e) The change(s) in the legal, economic, or financial position of the auditee that resulted, would result or could reasonably be expected to result from the conclusion or execution of the act(s) or the configuration of economic situations or relationships.
f) The change(s) in the legal, economic or financial position of any person who has or has had a connection (business, family, or otherwise) with the auditee that resulted, would result or could reasonably be expected to result from the execution or performance of the act(s) or from the configuration of the economic situations or relationships.
g) Any other consequence for the auditee or for any person who has or has had a connection (business, family, or other nature) with the auditee, derived from the celebration or execution of the act(s).
h) The nature of the connection (business, family, or other nature) between the auditee and any person affected by the act(s) or the configuration of the economic situations or relationships.
Article 8.- Intentions or motivations of the tax debtors or third parties
The application of the general anti-avoidance rule is not the result of inquiry or discovery of the intentions or motivations of tax debtors or third parties.