Non-Domiciled Tax Payment and Evidencial Means

19 February, 2024

By Cassation Appeal No. 49203-2022-Lima, published on January 31, 2024, the Supreme Court analyzes the appeal filed by a taxpayer, which discussed the transfer of tax debts to a third party and the evaluation of evidence provided in administrative proceedings.

Prohibition of the Tax Debt Transfer

In this case, the Supreme Court analyzed whether the Superior Chamber improperly applied Articles 26 of the Tax Code and 47 of the Income Tax Law, referring to the conventional transfer of the tax liability and the prohibition of deduction of income tax assumed by a third party, respectively.

In this regard, the controversy centered on determining whether the objection to the deduction of the expense related to the income tax payment of the non-domiciled workers made by the taxpayer implied a legal violation of the aforementioned articles.

Thus, the Supreme Court concluded in its analysis that the Superior Chamber did not violate the application of the aforementioned articles as the taxpayer claimed, given that the funds provided by the latter to pay the tax on non-domiciled workers constituted an assumption of the tax obligation for income tax on non-domiciled workers.

Likewise, this specified that both articles ruled that the tax debt cannot be assumed by a third party. Consequently, the transfer of the tax liability to a third party under an agreement with the latter does not affect the tax administration, concluding as follows:

“Thus, in the ruling, the superior collegiate had not misinterpreted them at any time, but rather the pronouncement was based on the purpose for which the articles subject to this normative infringement have been legislated, thus clarifying, based on aforementioned, that they clearly establish that the taxpayer cannot transfer its obligation to a third party under the agreement, in addition, that such agreement does not affect the tax administration.

Valuation of the Evidence in the Administrative Proceedings

Regarding the valuation of the administrative documentation, the Supreme Court analyzed whether the Administration should fine for the infringements described in numeral 1 of Article 175 and numeral 5 of Article 177 of the Tax Code.

In this regard, this concluded that the infringements were duly accredited under the following arguments:

  • Regarding the first infringement, the taxpayer was not required to file documentation during the audit period other than that required by the Administration, even though the latter is expressly obliged to keep certain documentation, and, therefore, one cannot be substituted for the other.
  • Likewise, regarding the second one, the taxpayer must have the documentation related to the contractual relationship with its client due to the information related to its activities.


Source: Diario Oficial