PERU Law and Practice Contributed by: Tania Quispe, Raquel Cabrera, Ramzi Benzaquen and Jadhira Unda, +Value
5. Adjustments 5.1 Upward Transfer Pricing Adjustments Taxpayers are allowed to submit substitute and/or rec - tifying declarations for the informative returns: • local file; • master file; and • country-by-country report (CbCR). Regarding the local file, pursuant to Superintend - ence Resolution No 014-2018/SUNAT, the taxpayer required to submit the referred return may substi- tute and/or rectify it. This requires re-entering all the required information in Virtual Form No 3560; said declaration renders the last one submitted null and void. Similarly, under Superintendence Resolution No 163- 2018/SUNAT, taxpayers have the option to submit rec - tifying returns for the master file. This process involves entering all the required information in Virtual Form No 3561, including data they do not intend to replace or rectify. Additionally, this rectifying return supersedes any previously submitted ones. Likewise, entities obli - gated to submit the CbCR return may substitute and/ or rectify it by re-entering all the required information in the IR Automatic Exchange of Information (AEOI) system, including data they do not wish to substitute or rectify. However, it is important to note that if, as a result of an audit procedure, the taxpayer accepted the adjustments imposed by the Peruvian Tax Admin - istration (SUNAT), and these adjustments are linked to the aforementioned informative sworn statements, they can no longer be modified or rectified. SUNAT may adjust the agreed value between related parties if it results in a lower tax burden in Peru under the transfer pricing regulations. Additionally, such adjust - ments may be made even if this condition is not met, provided that the adjustment increases the tax liability in transactions with other related parties. To determine whether the agreed value results in a lower tax liability, the independent effect of each transaction or group of transactions on income tax will be assessed. Adjustments made by SUNAT or the tax - payer will impact both the transferor and the acquirer. In the case of non-resident entities, adjustments will
only apply to taxable income in Peru or deductions in tax determination. Adjustments must be allocated to the corresponding tax period in accordance with established imputation rules. If allocation to a specific period is not feasi - ble, the adjustment will be proportionally distributed across the periods in which the income or expense was recognised. For income not attributable on an accrual basis, specific rules apply, as set out below. • In onerous transactions, the adjustment for the unpaid portion will be allocated on the date of the last or only payment. • In non-remunerated transactions, the adjustment will be allocated: (a) to the period in which the income would have accrued if compensation had been agreed upon, for resident taxpayers; and (b) to the period in which the expense would have accrued, even if non-deductible, for non-resi - dent taxpayers. When adjustments involve non-resident entities, the corresponding withholding tax must be paid by the party that would have acted as the withholding agent had compensation been paid. If a foreign tax authority makes a transfer pricing adjustment to a taxpayer residing in its country under a double taxation treaty (DTT) and SUNAT accepts the adjustment, the related party in Peru may submit a corrective tax return reflecting the adjustment, even if it results in a lower tax liability in Peru, without incur - ring penalties. 5.2 Secondary Transfer Pricing Adjustments As a result of the transfer pricing adjustment, the divi - dends referred to in Article 24-A of the ITL will not be triggered, except in the circumstances outlined in the relevant provision, which stipulates that any amount or in-kind transfer qualifying as taxable income under Category III, representing an indirect disposition of such income not subject to subsequent tax control, including amounts charged to expenses and unde - clared income, will apply.
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