PERU Law and Practice Contributed by: Tania Quispe, Martín Ramos, Raquel Cabrera and Ramzi Benzaquen, +Value
1. Rules Governing Transfer Pricing 1.1 Statutes and Regulations In Peru, the provisions related to transfer pricing regulations are established in Article 32-A of the Peruvian Income Tax Law (ITL) and in Chapter XIX of its Regulations. Through these regulations, the following relevant aspects have been addressed: • the definition of related parties; • the criteria for applying adjustments to the value agreed upon by the parties; • the conditions for determining the compara - bility of transactions; • the methods to be used; • the guidelines for entering into advance price agreements; • sworn declarations; and • other formal obligations that taxpayers must comply with, as well as specific regulations regarding the treatment of intra-group ser - vices. It should be noted that, for the interpretation of the aforementioned regulations, the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (the “OECD Guidelines” ) are applied, as long as they do not contradict the provisions approved in Peruvian legislation. 1.2 Current Regime and Recent Changes Transfer pricing regulations in Peru entered into force in 2001, following the amendment of Article 32 of the ITL in October 2000 by Law No 27356. These regulations incorporated the OECD Guidelines and directives that had been adopted by various countries in the region since 1997.
Thus, for tax purposes, Peruvian legislation incorporates the application of the transfer pric - ing methods for transactions between related parties. In addition, it has been established that transactions with non-co-operative countries or territories with low or no taxation are subject to the same consideration. Aspects related to the market value of the services, the transfer pricing methods to be applied, the definition of related parties and the definition of non-co-operative countries or territories with low or no taxation were specified in Supreme Decree No 045- 2001-EF of 16 March 2001, which amended the Income Tax Law Regulations (ITLR). However, one of the most significant changes to the Peruvian transfer pricing regime was the incorporation of Article 32-A into the ITL by Decree-Law No 945 of 23 December 2003. The legal provisions contained in this Article form the basis of the current Peruvian tax regime. Simi - larly, Chapter XIX of the ITLR was incorporated into the ITL by Supreme Decree No 190-2005-EF of 30 December 2005, which entered into force on 1 January 2006. In this way, both the ITL and ITLR covered vari - ous aspects, including: • the scope of application of the standard; • the provisions for the application of adjust - ments (primary, correlative and secondary); • the elements or circumstances to be taken into account for the comparability analysis; • the transfer pricing methods; • the determination of the interquartile range and the calculation of the median; • the necessary documentation to support the prices; • the rules on advance pricing agreements; and • the minimum information to be included as part of the Transfer Pricing Technical Report.
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