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Is the portion exceeding the market value of the amount received by a shareholder for a collected credit an income for the Income Tax Law

Is the portion exceeding the market value of the amount received by a shareholder for a collected credit an income for the Income Tax Law?

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According to Report No. 83-2021, SUNAT (Superintendencia Nacional de Aduanas y de Administración Tributaria – National Superintendency of Customs and Tax Administration) comments on whether the gain obtained by a shareholder, constituted by the amount received from the collection of credit at the part exceeding the market value of the account receivable previously transferred to him, qualifies as income for the Income Tax Law. 

1. Consultation

The assumption of the existence of a credit (account receivable), whose holder is a legal entity domiciled in Peru, which as a result of its dissolution and liquidation transferred it to one of its shareholders, a natural person, who acquires the credit under the non-recourse modality, i. e., assuming the debtor’s credit risk.

In this regard, there is a doubt whether once the credit has been transferred to the shareholder (domiciled or non-domiciled individual), exercising the latter the right to collect such credit and performing activities only to collect, resulting in a gain for the individual. Does such gain constitute a second or third-category income for the individual?

2. Analysis

Distribution of Dividends

Concerning the transfer of the account receivable to a shareholder, SUNAT points out in Report No. 045-2021 that this operation constitutes a distribution of dividends in kind to its shareholders, which generates a second category Peruvian source income for the dividends in kind received.

In this regard, the first paragraph of Article 24-B of the Income Tax Law establishes that in this case, the dividend will be determined considering the difference between the nominal value of the securities representing the capital plus the supplementary premiums, if any, and the market value of the credit (account receivable) transferred to the shareholder.

Categorization of the profit obtained

Article 22 of the Income Tax Law states that taxable income from Peruvian sources is classified in the categories referred to therein for tax purposes (among others, in second and third category income, as referred to in the consultation under analysis), it is necessary to determine whether the gain in question constitutes income subject to income tax.

Article 1 of the same regulation states that income tax is levied on income derived from capital, labor, and the joint application of both factors; income from the sale of capital goods; profits or income obtained by companies from third parties; as well as imputed income that are fictions or presumptions established by law.

Thus, although in the case under analysis, the amount that exceeds the market value of the account receivable that was transferred to the shareholder, and whose payment is obtained by him, qualifies as income for him, such income does not constitute income subject to income tax since it is not included in any of the aforementioned assumptions.

The income does not come from the exploitation of a source, nor operations with third parties [income product and wealth flow criteria included in paragraphs a) and c) of Article 1 of the Income Tax Law], nor does it constitute capital gains or imputed income. In this regard, such income is not subject to income tax. 

3. Conclusion

In the assumption of the existence of a credit (account receivable), whose holder is a legal entity domiciled in Peru, which as a result of its dissolution and liquidation transferred it to one of its shareholders, a natural person, who acquires the credit under the non-recourse modality, that is, assuming the debtor’s credit risk, the gain obtained by such shareholder (domiciled or non-domiciled natural person) from the amount received by him from the collection of such credit at the part exceeding the market value of the account receivable previously transferred to him, does not constitute income subject to income tax and, therefore, does not qualify in any of the income categories for income tax purposes.

Source: SUNAT 06/11/21

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