Background
The Tax Court recently ruled on an important case concerning the joint and several liability of a company that is part of a consortium with independent accounting. Despite the taxpayer’s arguments, the court upheld the validity of the ruling issued by the SUNAT, which attributed joint and several liability for unpaid tax debts generated by the consortium during the 2023 fiscal years.
Arguments of the appellant company
The appellant company argued that, as it was a consortium with independent accounting, it should be considered a separate entity with tax capacity, in accordance with Article 21 of the Tax Code. Under this criterion, its members should not be jointly and severally liable. It also argued that applying Article 18 of the Tax Code in this context would violate the principle of equality before the law, creating legal uncertainty.
Basis of the Tax Court’s decision
The Court concluded that the consortium, even though it keeps separate accounts, does not constitute a legal entity. Consequently, it is a collective entity without legal personality, a situation expressly provided for in the last paragraph of Article 18 of the Tax Code for the attribution of joint and several liability to its members. The ruling highlights that, although the VAT Law and the Income Tax Law recognize the consortium with independent accounting as a taxpayer, this does not imply the creation of a legal entity distinct from the contracting companies.
SUNAT’s powers and proportionality
The Court also indicated that the Administration may demand full or partial payment of the debt from any of the jointly and severally liable parties, without the need to apply proportionality criteria based on participation in the contract. It thus rejected the company’s argument regarding alleged double charging or excessive allocation.
Impact and practical reflection
This ruling reaffirms SUNAT’s position on consortium contracts, even those with separate accounting. This criterion may generate a significant tax risk for consortium members, who could be liable for the entire tax debt if the consortium fails to comply.
Call to Action – VAG Global
At VAG Global, we analyze in detail the tax risks arising from consortium structures. If your company participates or plans to participate in a consortium, our legal and tax team can help you review contracts, assess joint and several liability, and take preventive measures to avoid contingencies.
Contact us for expert advice.
Source:
- Tax Court Resolution No. 1431-8-2025
- Renato Manrique’s LinkedIn post: see here