PERU Law and Practice Contributed by: Camilo Maruy, Maite Colmenter, Roberto Polo and Llanet Gaslac, Rebaza, Alcázar & De Las Casas
4.3 Transfer of Partial Interest Gratuitous transfers (gifts and inheritances) in favour of individuals are not subject to income tax, as explained in 2.6 Transfer of Assets: Vehicle and Plan- ning Mechanisms . However, capital gains derived from transfers made for consideration may be subject to taxation, depend - ing on the source of the income and the tax residency of the transferor. Specifically, the sale of shares or ownership interests in companies or entities incorporated in Peru qualifies as Peruvian-source income and is subject to Peruvian income tax. In contrast, the transfer of shares or inter - ests in foreign entities is considered foreign-source income and is only taxable in Peru if the transferor is a Peruvian tax resident, as Peruvian residents are taxed on their worldwide income. However, Peruvian income tax law also establishes that gains derived from an indirect transfer of Peruvian shares qualify as a Peruvian source income when the shares of a non-domiciled company are transferred, and the foreign company owns shares, either directly or indirectly, in a Peruvian entity, subject to certain thresholds and additional requirements stipulated in the law and regulations. It is also important to note that Peruvian tax law does not allow for valuation discounts based on lack of marketability or lack of control when determining the taxable capital gain. The gain is generally calculated based on the difference between the sale price and the acquisition cost, without adjustments for liquidity or control limitations. 5. Wealth Disputes 5.1 Trends Driving Disputes The most common wealth disputes in Peru relate to the following. • Intestate succession or sucesión intestada this occurs when a person dies without leaving a valid will. Peruvian law establishes an order of prefer - ence to determine the legal heirs and the distribu -
case of a divorce or a spouse’s debts and liabili - ties. • Donations or advancements of inheritance are often used, particularly when potential tax reforms related to inheritance or wealth tax (especially dur - ing presidential elections) are anticipated. • The registration of a real estate as principal hous - ing ( vivienda principal or residencia habitual ): in addition to tax benefits, this registration provides protection against third-party claims, including seizures, under specific situations. 4.2 Succession Planning Some of the more popular family succession planning structures in Peru include the following. • Foreign and local trusts, and foundations: in addi - tion to tax benefits, these entities usually provide protection against third parties and also allow for the incorporation of family protocols within their terms. They are often established for an indefinite term in order to ensure perpetuity. Peruvian fide - icomisos , if created with a succession planning purpose ( fideicomisos vitalicios ), can be incorpo - rated for a longer term than other types of Peruvian fideicomisos (ie, until the death of the last living beneficiary at the time of the trust’s incorporation). • The implementation of family protocols with detailed provisions on succession planning, includ - ing the rights and obligations of family members, and their roles in the management of family busi - nesses. Family protocols commonly include terms on corporate governance tailored to satisfy the family’s needs and wishes, ie, director require - ments and protocols, regulations for the disposi - tion of family assets, including the right of first refusal and other family members rights in the case of selling family assets, the creation of committees (family board, investment committee, training com - mittee) to ensure compliance with the protocol’s terms. • Advances of inheritance to forced heirs ( anticipo de legitima ) and wills. • Incorporation of foreign entities under the condition of joint tenancy with rights of survivorship in order to ensure the proper transfer of assets. This and all other structures must be analysed on a case-by- case basis.
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