PERU Law and Practice Contributed by: Tania Quispe, Martín Ramos, Raquel Cabrera and Ramzi Benzaquen, +Value
4.2 Hard-to-Value Intangibles The ITL does not have any special rules regard - ing the treatment of hard-to-value intangibles. As mentioned in 1.1 Statutes and Regulations , the Peruvian regulations use the OECD Guide - lines as a source of interpretation. 4.3 Cost Sharing/Cost Contribution Arrangements The ITL lacks any special provisions on cost sharing agreements concerning intangibles between related parties. However, Article 117 of the Regulations mandates that the master file must, at a minimum, include a group policy on intangibles, which encompasses a listing of sig - nificant agreements on intangibles entered into between related parties, particularly cost sharing agreements. 5. Adjustments 5.1 Upward Transfer Pricing Adjustments Taxpayers are allowed to submit substitute and/ or rectifying declarations for the informative returns: • local file; • master file; and • country-by-country report (CbCR). Regarding the local file, pursuant to Superin - tendence Resolution No 014-2018/SUNAT, the taxpayer required to submit the referred return may substitute 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 rectifying returns for the master file. This
process involves entering all the required infor - mation in Virtual Form No 3561, including data they do not intend to replace or rectify. Addition - ally, this rectifying return supersedes any pre - viously 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 adjust - ments imposed by the Peruvian Tax Adminis - tration (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 regu - lations. Additionally, such adjustments 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 taxpayer 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 corre - sponding tax period in accordance with estab - lished imputation rules. If allocation to a spe - cific period is not feasible, 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.
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