Introduction and Current Context
In recent years, SUNAT has significantly intensified its audits related to non-factual transactions, making this issue a central concern for taxpayers. The current trend shows that auditors are requiring all types of taxpayers to demonstrate the reliability of their transactions, both in the acquisition of goods and in the provision of 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 nonexistent or simulated. In these cases, there was never a real transfer of goods, rendering or use of services or 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 that a transaction is non-existent if the parties or the object of the transaction are different from those appearing in the payment vouchers (RTF No. 1759-5-2003).
Second Type: Transactions with Incorrect Issuer
Subsection b) of the same article contemplates situations where the commercial transaction did exist, but the person who issued the payment voucher was not the one who actually executed the transaction. This case presents an important particularity: the acquirer may maintain his right to the tax credit if he complies with certain requirements established in the Regulation of the IGV Law.
Requirements to Maintain the Tax Credit
In the case of operations of paragraph b), numeral 15.4 of article 6 of the Regulation of the IGV Law 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, with the exception of the identification of the transferor, service provider or constructor.
- Absence of knowledge on the part of the acquirer that the issuer appearing on the payment voucher or debit note did not actually carry out the transaction. If it is proven that the acquirer had knowledge, he will lose the right to the tax credit.
The Importance of Substantiating Documentation
The reliability of the transactions has become the first filter used by SUNAT in its audits. Without it, 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. For this reason, it is essential to keep an orderly file with all the documentation that supports our commercial operations.
This documentation should include not only payment vouchers, but also 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 made or the performance of the operations.
Remember that keeping these documents is not optional: article 87° numeral 7 of the Tax Code establishes the obligation to keep them 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 realization, 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.
It is recommended to establish a system of periodic review of the documentation and to keep the documentary archive up to date. Investment in document management systems and staff training are key elements for an efficient and secure tax management.
At VAG Global, we know that the correct documentation and support of your operations can make the difference between a successful audit and costly tax contingencies. Our specialized team will not only help you implement a robust documentation system, but will also 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!