Tax Court Resolution No. 01361-8-2026 introduces a significant precedent regarding the application of Double Taxation Agreements (DTAs) by analyzing the validity of a certificate of residence issued after the withholding of income tax.
The Case at Hand
A Brazilian company provided air transport services in Peru, for which a 30% withholding tax applicable to non-resident income was applied. Subsequently, the company requested a refund of the withheld tax, invoking the application of the Peru–Brazil DTA.
The point of contention arose because the Certificate of Residence was issued after the date of payment and withholding, which led SUNAT to reject the request.
The Tax Court’s Ruling
The Court overturned SUNAT’s position and established a key criterion:
What is decisive is not the date of issuance of the certificate, but rather that it certifies tax residency during the period in which the income was generated.
In this case, the certificate certified residency in Brazil during the period in which the services were provided, making it valid for the application of the DTA.
Legal Basis
The Court also based its decision on Supreme Decree No. 090-2008-EF, which provides for a refund procedure when the certificate of residence was not submitted in a timely manner.
This confirms that the treaty benefit may be applied even retroactively, provided that the substantive proof of residence is met.
Practical Implications
This ruling has significant implications for companies operating internationally:
· It allows for the recovery of excess withholdings
· It reinforces the substance-over-form principle in tax matters
· It reduces risks of rejections based solely on formalities
· It validates the use of documentation obtained subsequently, under certain conditions
However, from a management perspective, it remains advisable to obtain the residency certificate prior to the transaction to avoid refund processes.
Conclusion
Resolution No. 01361-8-2026 establishes a more flexible approach aligned with the principles of DTAs, prioritizing economic reality over administrative formalities.
Source: MEF