I. BENEFICIAL OWNER
1. What are the obligations of the Beneficial owner?
The beneficial owner is required to provide liable taxpayers (legal persons or legal arrangements) with the supporting identification information and documentation showing proof of their status as such, which includes as follows:
- To provide their information by physical means, attached to Annex of Supreme Decree 003-2019-EF.
- To sign and authenticate the format referred hereto before a Notary Public or consular authority, as appropriate.
- To provide liable taxpayers with the format referred hereto and the supporting information and documentation showing proof of their status as beneficial owner.
- To inform, in its capacity as beneficial owner, any change to the ownership or control of legal persons or legal arrangements or to the data provided to them by means of the format, including when the beneficial owner ceases to have such status, and must inform it using the format within a term of thirty (30) working days beginning on the date such change takes place.
Legal basis: Section 8 of Supreme Decree 003-2019-EF.
II. LIABLE TAXPAYERS
1. Are non-domiciled legal persons or legal arrangements incorporated abroad required to file the Beneficial Owner Affidavit to SUNAT?
Yes, both of them are required to file the Beneficial Owner Affidavit to SUNAT, provided that:
- They have a branch, agency or other permanent establishment in the country.
- The individual or legal person who manages the independent equity or foreign investment funds or the individual or legal person that has the quality of protector or administrator domiciled in the country.
- When any of the members of a consortium is domiciled in Peru.
It is worth mentioning that such liable taxpayers are required to file their beneficial owner affidavit through the taxpayers indicated in items from a) to c).
Legal Basis: Paragraph 3.2 of Section 3 of Supreme Decree 003-2019-EF.
2. Are legal arrangements required to submit the Beneficial Owner Affidavit to SUNAT in 2022 or 2023?
It should be noted that, in accordance with the provisions of Legislative Decree 1372 and Supreme Decree 003-2019-EF, legal arrangements incorporated in the country and abroad are part of the obligated liable taxpayers to file the beneficial owner affidavit.
In this sense, regarding Superintendency Resolution 041-2022/SUNAT, amended by Superintendency Resolution 000278-2022/SUNAT, this establishes that legal arrangements registered in the Single Registry of Taxpayers until 12.31.2023 and that have not been deregistered on the date they should file the affidavit, must submit the affidavit in the tax period December 2023. Therefore, those legal arrangements do not comply with the characteristics indicated in paragraph b) of Section 2 of the resolution would not be considered.
Legal Basis: Item b) of Section 2 of Superintendency Resolution 041-2022/SUNAT and Section 2 of Superintendency Resolution 000278-2022/SUNAT.
3. When must non-domiciled legal persons and legal arrangements incorporated abroad submit the Beneficial owner affidavit?
Liable Taxypayers not included in Superintendency Resolution 041-2022/SUNAT, amended by Superintendency Resolution 000278-2022/SUNAT, nor in paragraph 5.2 of Section 5 of Superintendency Resolution 185-2019/SUNAT must submit the affidavit within the term that SUNAT establishes by means of a superintendency resolution.
4. Are liable taxpayers under a dissolution, liquidation or bankruptcy proceeding or agreement required to file their beneficial owner affidavit?
Yes, in such cases, the obligations to identify, obtain, update, report, keep and provide information on the beneficial owner rests with liquidators or receivers of the liable taxpayer.
III. CRITERIA FOR THE DETERMINATION OF THE BENEFICIAL OWNER
1. In those cases in which the liable taxpayers have a Board of Directors, General Management and/or some other similar body, and in application of the “Senior Administrative Position (PAS)” criterion, who will be declared as the beneficial owner?
The liable taxpayer must assess and identify which is the position holding the highest rank in its organizational structure; that is, the highest one in its organizational chart, and subsequently include its name as the beneficial owner of the individuals that form part thereof. It must be noted that said assessment must be carried out on a case-by-case basis according to the own organizational chart of each liable taxpayer.
For example, in the event that the liable taxpayer has identified three groups of high hierarchical level in its organizational chart: Board of Directors, Shareholders’ Meeting and General Management, it must assess which one has the highest functional or management level, being possible that they all require each other, in which case all their members must be declared as beneficial owners, or that only one of them has the highest level.
Legal Basis: Paragraph 5.5. of Section 5 of Supreme Decree 003-2019-EF.
2. For the purposes of applying the control criterion, should only the shareholders be evaluated? or those individuals, who don’t have said status, may qualify as Beneficial owners?
Any individual who has powers, by means other than ownership, to adopt and impose decisions must be assessed, regardless of whether or not they hold formal positions in the legal person, even when they do so through a relative or spouse or common-law marriage party, agent, if applicable, and are those who make decisions.
Legal Basis: Paragraph 5.3 of Section 5 of Supreme Decree 003-2019-EF.
3. In those cases in which legal persons have shares on the Stock Market, how must the ownership criterion be applied? What kind of information must be used to determine the ownership of the shareholders as of November 30, 2019?
In any case, the ownership and control criteria to be used to determine the beneficial owner of legal persons must not be applied optionally but gradually.
After applying the ownership test, the shareholders that do not qualify as beneficial owners because they hold a shareholding percentage less than 10%, directly or indirectly, must carry out the control test.
As for the type of information, the liable taxpayer must verify in the RENIEC, SUNARP, SBS records or databases using the Single Register of Taxpayers’ (RUC) data on the SUNAT website, among other sources of information, to which it is possible to access, in order to determine the ownership of the shareholding.
Legal Basis: Items a) and b) of paragraph 4.1. of Section 4 of Legislative Decree 1372 and sections 5 and 7 of Supreme Decree 003-2019-EF.
4. In application of the “Senior Administrative Position (PAS)” criterion, what should be the text to be published on the home page of my website)?
For example, the following text is quoted:
“In accordance with the provisions of Legislative Decree Order 1372, Section 6, paragraph 6.3, item c), second paragraph, and Supreme Decree 003-2019-EF, Section 7, paragraph 7.3, it is communicated that [Name or Corporate Name] has used reasonable mechanisms to obtain the information on the beneficial owner, considering the ownership and control criteria set forth in Legislative Decree 1372, Section 4, paragraph 4.1, items a) and b) and in paragraphs 5.1 through 5.4 of its Regulations, duly documented, respectively.
However, it has not been possible to fully identify the beneficial owner under the criteria indicated in the preceding paragraph because [indicate the reasons why it was not possible to identify the beneficial owners].
Accordingly, pursuant to Legislative Order 1372, paragraph 4.1, item c) and Supreme Decree 003-2019-EF, Section 4, paragraph 4.1, item c), we have considered as the beneficial owner the individuals [indicate the full name of those who hold the PAS] who hold the senior administrative position.”
Legal Basis: Second paragraph of item c) of paragraph 6.3 of Section 6 of Legislative Decree 1372 and paragraph 7.3 of Section 7 of Supreme Decree 003-2019-EF.
IV. BENEFICIAL OWNER AFFIDAVIT
1. Why does Section 2 of Superintendence Resolution 041-2022/SUNAT establish that legal persons with net income of more than 300 UIT must file the affidavit considering the due dates for the monthly obligations of May 2023, if they have not been required to file the affidavit previously?
Item c) of paragraph 3.1 of section 3 of the above-mentioned resolution establishes that taxpayers in Brackets I and II shall estimate their net income considering the income tax return of period 2021 and monthly returns of periods from January to December 2021. On the other hand, taxpayers in Bracket III shall estimate their net income taking into account the income tax return of period 2022 and monthly returns of periods from January to December 2022.
In this context, there are legal persons that might estimate net income taking into consideration the income tax return of period 2021 and monthly returns of periods from January to December 2021 and determine that their net income are lower or equal to 500 tax units; that is, they are not within Bracket I or Bracket II. However, when they determine their net income taking into consideration the net income return of period 2022 and monthly returns of periods from January to December 2022, it might happen that their net income exceeds 500 tax units.
Hence, the questions that arise are: What is the bracket that corresponds to that legal person? When does it have the obligation to file the beneficial owner affidavit?
The response is that such legal person is in Bracket III and shall file the beneficial owner affidavit taking into account the maturity dates for compliance with monthly obligations of May 2023 since it is a legal person that has not been required to declare in tax periods of May or August 2022 because it was not in Bracket I or Bracket II, it determines that its net income is higher than 300 tax units considering the income tax return of period 2022 and monthly returns of periods from January to December 2022.
This specification given in the regulation is to avoid that any person be considered as not compelled to file the beneficial owner affidavit as a result of using returns from different periods to estimate net income.
It is worth mentioning that Superintendence Resolution 041-2022/SUNAT does not require that taxpayers that have already filed the beneficial owner affidavit, either as main taxpayers as of 11.30.2019 or legal persons in Bracket I or Bracket II, file again the affidavit. Accordingly, the regulation states that legal persons determining net income higher than 300 tax units shall file it provided that they were not required to previously filed it.
2. In case the liable taxpayer has two shareholders with a shareholding percentage of 50% and one of them passes away, creating an intestate succession with respect to the latter, how should it be declared?
According to the ownership criterion, two (02) beneficial owners are identified, however, one of them has passed away. Thus, only the living shareholder must be declared applying the ownership criterion, and as for the deceased shareholder, the profit-sharing must be distributed according to civil legal law.
Legal Basis: Item a) of paragraph 4.1 of Section 4 of Legislative Decree 1372 and paragraph 5.2 of Section 5 of Supreme Decree 003-2019-EF.
3. I am a Main Taxpayer, Legal Person as of November 30, 2019, what period should I include in my original, rectification or update Affidavit?
If you are a Legal Person, main taxpayer as of November 30, 2019, the period to be recorded in the original Affidavit will be November 2019 (2019/11).
If the liable taxpayer had complied with filing the Affidavit with the November 2019 period, however, omitted to record information in relation to the beneficial owners as of November 30, 2019, it must submit a Rectification Affidavit and will record the November 2019 period (2019/11).
In the same vein, if the beneficial owners submit a new form with updated information in February 2020, that is, the situation declared on Novembre 30, 2019 has changed, then the liable taxpayer shall file its Affidavit with the February 2020 period (2020/02), which matches the form date.
Legal basis: Superintendence Resolution 185-2019/SUNAT.
4. What procedure should be followed if the liable taxpayer wants to know the detail of the beneficial owner information that he has been filed using Virtual Form 3800 - Beneficial Owner Affidavit?
If a liable taxpayer wishes to know the detail of the beneficial owner information that has been filed using Virtual Form 3800 - Beneficial Owner Affidavit, it corresponds to apply through the Virtual Parties Table or in person of SUNAT, which will be absolved within 7 working days.
The SUNAT for the taxpayer to access the requested information, will provide a password to the taxpayer, and the delivery charge will be scanned and attached to the Virtual Parties Table file.
V. SANCTIONS AND PENALTIES
1. In the event the liable taxpayer has reasonable indications of the identity of the beneficial owners, but they refuse to deliver the Form contained in the Annex to the Regulation, will the liable taxpayer be subject to any penalty for not having said document in a potential inspection?
No, as long as the liable taxpayer complies with declaring the information on their beneficial owners and this has the respective documentary support. Such information will be subject to subsequent review and/or verification.
Legal Basis: Section 6 of Legislative Decree 1372 and Section 7 of Supreme Decree 003-2019-EF.
VI. DUTIES OF THE NOTARIES PUBLIC
1. Since when is the Notary Public required to verify compliance with the filing of the Beneficial Owner Affidavit?
The obligation to verify compliance with the filing of the Beneficial Owner Affidavit begins from the day following the due date for the filing of the affidavit. The due date for the filling of the aforementioned affidavit varies depending on the group of liable taxpayers regulated according to Superintendence Resolutions 185-2019 / SUNAT, 041-2022 / SUNAT and 000278-2022 / SUNAT.
Legal Basis: Paragraph 5.2 of Section 5 of Superintendence Resolution 185-2019/SUNAT, Section 2 of Superintendence Resolution 041-2022/SUNAT and Section 2 of Superintendence Resolution 000278-2022/SUNAT.
2. With regard to access with SOL Password, is it feasible for notaries public to have a key and password other that the SOL Password, considering that it will be exclusively used by the notary public?
In order to allow notaries public to designate their employees the task of verifying compliance with the filing of the beneficial owner affidavit, there is a tool called “Secondary Users” in the SOL Password, which allows access to options of inquiries and procedures in “SUNAT - Online Transactions” to such persons that the SOL Password holder deems appropriate, being able to choose the profiles and/or specific options to which the secondary user may have access.
Thus, notaries public can assign “Secondary Users” within their SOL Password, safeguarding the confidentiality of the information it contains, so it is not necessary to provide additional access to their SOL Password. The steps to follow for the creation of “Secondary Users” have been established through the Instructions for the Beneficial Owner Affidavit - FV3800.
3. Shall notaries public request, recently incorporated liable taxpayers, to have the SUNAT stamp in the physical "form" indicated in the Regulation?
It is worth mentioning that, it is the responsibility of liable taxpayers to implement the aforementioned physical form in which the beneficial owners must enter their identification details, which is an integral part of the annex to Regulations and which is available at the SUNAT Web Portal.
Consequently, when newly incorporated liable taxpayers carry out notarial procedures before the notary public, the latter must require the physical “form” of the individual(s) who qualify as beneficial owners, which must contain the details provided for in Article 4 of the Regulations, in a complete manner and bearing the signature of the Beneficial Owner, WITHOUT THE SUNAT SEAL BEING NECESSARY.
Legal Basis: Item a) of paragraph 7.1 of Section 7, Sections 8 and 10 of Supreme Decree 003-2019-EF and item d) of Section 16 of Legislative Decree 1049 – the Notaries’ Act.
4. Are notaries public required to include in the notarially recorded instruments the details of the beneficial owners of liable taxpayers who carry out notarial procedures or verify the breach of Superintendence Resolution 185-2019/SUNAT?
In accordance with the provisions of Legislative Decree 1372, with regard to the collaborative work of notaries public with SUNAT, in order to ensure filing of beneficial owner’s information. Once the notaries public become aware of non-compliance with the filing of the aforementioned affidavit, they must report it to SUNAT, in accordance with the procedures indicated in Section 12 of Superintendence Resolution 185-2019/SUNAT.
Likewise, it should be noted that in accordance with the provisions of the Fourth Complementary Provision amending Legislative Decree 1372, which refers to the obligations of the professional practice of the notary public, in Section 16, item p), and Section 54, item e) of Legislative Decree 1049 – the Notaries’ Act, it is established that in the introduction of notarial documents the identification details of the beneficial owner must be included.
Therefore, the notary public must comply with the obligations referred to in the preceding paragraphs.
Legal Basis: Section 9 of Legislative Decree 1372, Chapter III of Superintendence Resolution 185-2019/SUNAT and item p) of Section 16 and item e) of Section 54 of Legislative Decree 1049 – the Notaries’ Act.