PERU Law and Practice Contributed by: Tania Quispe, Raquel Cabrera, Ramzi Benzaquen and Jadhira Unda, +Value
SUNAT against the results of the audit. If the taxpayer remains dissatisfied with the resolution of their claim, they may escalate the matter by filing an appeal with the Tax Court. The Tax Court then issues a decision to resolve the dispute, marking the end of the conten - tious tax procedure. Should either party disagree with the Tax Court’s decision, they can initiate an administrative litigation process by filing a lawsuit against the decision. This process may include an appeal and potentially cul - minate in a cassation appeal to the Supreme Court, assuming the case meets the criteria for admissibility. Additionally, in cases where violations of tax consti - tutional principles are alleged, it is possible to resort to the constitutional protection mechanisms provid - ed under the legal system, with the case potentially reaching the Constitutional Court, in its capacity as the highest interpreter. This highlights that disputes over transfer pricing rules can involve multiple stages of legal challenge. It is also important to note that the payment of the disputed tax debt is not required during the contentious tax proce - dure if the appeals are submitted within the prescribed timeframe. If the appeals are not submitted within the prescribed timeframe, the taxpayer must make the necessary payment or provide a bank guarantee. 14. Judicial Precedent 14.1 Judicial Precedent on Transfer Pricing Transfer pricing audits have significantly increased since 2016, leading to very few cases progressing from the Tax Court to the Judicial branch. As a result, there are limited judicial precedents concerning trans - fer pricing rules. 14.2 Significant Court Rulings Currently, there are two notable judicial decisions in the transfer pricing field. • Supreme Court Ruling No 17144-2024-LIMA confirmed that the failure of the Tax Authority to consider essential elements of the comparabil - ity analysis when applying the CUPM constitutes
a procedural defect that entails the annulment of the resolution. In the specific case, in which the transaction under review consisted of a financ - ing arrangement between related parties, the Tax Authority failed to consider the debtor’s solvency and its credit risk rating, both of which constitute essential elements of a proper comparability analy - sis. • In Supreme Court Ruling No 2434-2024-LIMA, related to the temporal framework of the compa - rability analysis in transfer pricing, the Supreme Court stated that, in order to accurately reflect the economic reality of the transactions, the Tax Authority is required to examine all fiscal years encompassed within the selected comparison period, rather than limiting its review to a single year. 15. Foreign Payment Restrictions 15.1 Restrictions on Outbound Payments Relating to Uncontrolled Transactions Regarding the nature of the transaction, there is no restriction on the payment made; however, certain formalities must be complied with for its execution. Indeed, Article 3 of Law No 28194 (Law Against Eva - sion and for the Formalisation of the Economy) stipu - lates that obligations fulfilled through the payment of sums exceeding PEN2,000 or USD500 must be paid using payment methods (deposits into accounts, drafts and fund transfers, among others). 15.2 Restrictions on Outbound Payments Relating to Controlled Transactions There is no restriction on payments abroad additional to that indicated in 15.1 Restrictions on Outbound Payments Relating to Uncontrolled Transactions . 15.3 Effects of Other Countries’ Legal Restrictions Article 32-A of the ITL mandates the application of transfer pricing rules: • to transactions conducted by taxpayers with their related parties;
198 CHAMBERS.COM
Powered by FlippingBook