Background
In recent years, the SUNAT (Superintendencia Nacional de Aduanas y Administración Tributaria – National Superintendence of Customs and Tax Administration) has significantly intensified its audits related to non-factual transactions, emphasizing this to taxpayers. According to the current trend, auditors require all types of taxpayers to demonstrate the reliability of their transactions, both in acquiring goods and providing services, often without considering the nature or economic sector of the business.
Legal Framework for Non-Real Operations
The Peruvian tax system, through Article 44 of the Value Added Tax Law, approved by Supreme Decree No. 055-99-EF, establishes a clear distinction between two types of non-real operations, each with its own characteristics and tax consequences:
First Type: Non-existent or Simulated Operations
The operations contemplated in paragraph a) of Article 44 refer to those where, although there is a payment voucher issued, the operation stated therein is completely non-existent or simulated. These cases never demonstrated a real transfer of goods, services rendered or used, or a construction contract. The consequences are as follows: Total loss of the tax credit and disregard of the expense for income tax purposes.
Likewise, the Tax Court considers no transaction when the parties or the object of the transaction are different from those recorded in the payment vouchers (RTF No. 1759-5-2003).
Second Type: Transactions with Incorrect Issuer
Paragraph b) of the same article contemplates situations where the commercial transaction did exist, but who issued the payment voucher was not who actually executed the transaction. This case has a relevant particularity: The acquirer may maintain the right to the tax credit if he/she complies with specific requirements established in the VAT Law regulations.
Requirements to Maintain the Tax Credit
For operations of paragraph b), numeral 15.4 of Article 6 of the VAT Law regulations establishes specific conditions for the acquirer to maintain the tax credit:
- Use of means of payment regulated by the banking regulations.
- Verification that the goods acquired or services rendered are the same as those stated in the payment voucher.
- Fulfillment of all formal requirements in the payment voucher, except the identification of the transferor, service renderer, or constructor.
- If the acquirer did not know the issuer appearing on the payment voucher or debit note did not actually carry out the transaction. Otherwise, he/she will lose the right to the tax credit.
Relevance of Supporting Documentation
The reliability of transactions has become the first filter of the SUNAT. Otherwise, it is not possible to analyze other aspects, such as the causality of the expense, and the right to the tax credit is automatically lost. Therefore, an orderly file with all the documentation supporting the commercial transactions is necessary.
This documentation should include payment vouchers, contracts, addenda, coordination emails, purchase or service orders, quotations, referral guides, conformity reports, technical reports, photographic evidence, and, of course, all documents related to the payments during the performance of the operations.
These documents are not optional: Article 87, numeral 7 of the Tax Code, establishes their mandatory keeping for five (5) years or during the tax statute of limitations period.
Conclusions and Final Recommendations
Prevention is fundamental in tax matters. A well-documented operation, with banked payments and sufficient evidence of its performance, constitutes the best defense against questioning by the tax administration. The cost of maintaining an orderly documentation system is significantly lower than the consequences of not being able to support the reliability of the transactions.
Companies should establish a system of periodic documentation reviews and keep the documentary filing updated. Investment in document management systems and staff training are key elements for efficient and secure tax management.
At VAG Global, we are aware that correct documentation and support of your operations can make the difference between a successful audit and costly tax contingencies. Our specialized team will assist you in implementing a solid documentation system and guide you in building a solid defense against any SUNAT questioning. Why take the risk? Let us be your strategic ally in the tax management of your company. Contact us today and secure the future of your business!