Until August 4, 2024, the Value Added Tax Law taxed the use in the country of services rendered by non-domiciled persons, the taxable person being the user of the services, i.e., the legal entity domiciled in the country.
However, if the user was a person or entity that did not carry out a business activity, the operation would only be taxed as long as there was regularity.
Thus, by means of Legislative Decree 1623, enacted on August 4, 2024, the IGV Law was amended with respect to the use in the country of digital services and the import of intangible goods through the Internet, the purpose of which is to tax with the IGV the “natural persons without business” that use in Peru digital services provided by non-domiciled subjects and also aims to tax the import of intangible goods through the Internet without these being habitual in the performance of such operations.
OPERATIONS COVERED
How does this regulation define digital services?
By means of Article 3 of the Legislative Decree, the definition of digital services is incorporated to the IGV Law, which is consistent with that established by Article 4-A of the LIR Regulations. That is to say, digital services are considered as “services that are made available to the user through the Internet or any adaptation or application of the protocols, platforms or technology used by the Internet or any other network through which equivalent services are provided by means of online accesses and which is characterized by being essentially automatic and not viable in the absence of information technology”.
It also establishes that the following shall be considered as digital services, provided that they meet the requirements of the preceding definition:
- Access and/or online transmission of images, series, movies, music, among other digital content, through streaming services. Examples include Netflix, Disney+, Spotify and Apple Music platforms.
- The storage of information, having as examples iCloud, Drive, Dropbox and Google Drive.
- Access to social networks and/or the provision of content or additional functions in these, such as LinkedIn Premium and Facebook Marketplace.
- The service provided by online magazines or newspapers, such as subscriptions to exclusive content such as NTY, among others.
- Remote conferencing services, such as Zoom and Microsoft Teams.
- The intermediation in the supply and demand of goods or services, where Airbnb and Booking platforms serve as examples.
What is understood by intangible goods imported through the Internet?
Likewise, Article 3 of Legislative Decree 1623 defines intangible goods exported through the Internet as “those acquired to be definitively downloaded by the acquirer through the Internet or any adaptation or application of the protocols, platforms or technology used by the Internet or any other network through which intangible goods are acquired and downloaded in a definitive manner”.
In this case, we have as an example the acquisition through the Internet of software, music, audio books, electronic books, among others.
TAXATION CRITERION
Being operations rendered by a non-domiciled subject, the applicable taxation criterion for its taxation with the IGV is that they are employed or consumed in the country; without requiring that they are habitual in the realization of such operations.
In this sense, article 3 of Decree 1623 incorporated the assumptions to consider when the USER has habitual residence in the country. Thus, both for the case of digital services and for the importation of intangible goods, any of the following assumptions may occur:
- The IP or other means of geolocation of the device through which the digital service is provided corresponds to Peru.
- The SIM card of the mobile terminal through which the digital services are provided corresponds to Peru.
- The payment of the digital services is made using a card (credit or debit) or any product provided by an entity of the Peruvian financial system.
- The address that the natural person registers with the digital service provider is located in Peru.
TAX COLLECTION MECHANISM
Legislative Decree 1623 incorporated Chapter XII to the Value Added Tax Law, which establishes the mechanism for collecting the tax. In view of the fact that it would be complicated for the Administration to identify and force the individual without a business to comply with the payment of the IGV, the figure of the withholding or collection agent was established as a collection mechanism. However, the collection would actually be carried out in two ways:
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Route No. 1: withholding and collection agents
This route consists of non-domiciled taxpayers, who must register in the RUC in accordance with the rules that regulate such registration and be the withholding or collection agent.
In this respect, the Third Final Complementary Provision of Legislative Decree 1623 provides that: i) the PROVIDER or NON-domiciled taxpayer is not required to establish domicile in Peru; ii) its designated representative shall not be domiciled in Peru and ii) its registration shall not imply the constitution of a Permanent Establishment in the country.
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Route No. 2
As an accessory mechanism or way, that is to say, when the previous one cannot be used because the PROVIDER or NON domiciled subject is not registered in the RUC, fails to pay and declare the IGV tax obligation, the amount shall be withheld or collected by the subjects PAYMENT FACILITATORS.
The following are considered PAYMENT FACILITATORS:
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- Las entidades financiera y empresas emisoras de dinero electrónico en el contexto en el que el pago se realice mediante tarjetas de crédito, débito, billeteras digitales o cualquier otro producto que establezcan dichas entidades señalado por decreto supremo.
- Las empresas operadoras de servicios públicos de telecomunicaciones que reciban el pago por servicios digitales.
- Otros sujetos señalados por decreto supremo que reciban el pago por la importación de bienes intangibles a través de internet o la utilización de servicios digitales.
ADDITIONAL CONSIDERATIONS
On August 24, 2024, the Regulation of the IGV Law was amended by Supreme Decree 157-2004-EF, in order to adopt it to the amendments made by Legislative Decree 1623. The main points addressed are: what is understood as underlying operation in intermediation platforms, the regulation of the document for the use of the IGV Income tax credit of individuals with business, the regulation of the compensation of undue or excess perceptions and withholdings paid through non-domiciled platforms and the procedure for the non-domiciled subject to request the refund is established.
Likewise, on August 31, 2024, Resolution of Superintendence 000173-2024-SUNAT was published, which regulates the registration in the RUC of non-domiciled taxpayers as withholding or collection agents of the IGV (Value Added Tax) levied on digital services.
Although the amendment to the IGV regulations and the regulation of the registration in the RUC of NON domiciled subjects were enacted almost immediately, there are still pending regulations to be published by SUNAT and the MEF, so we hope that the relevant regulations can also be issued soon in order to have a clear view on the taxation of these operations.