On November 18, 2021, SUNAT issued Report No. 000101-2021-SUNAT/7T0000, which raises the following question:
A company domiciled in Peru enters into an agreement with a non-domiciled legal entity whereby the latter authorizes the former to market access keys in the country for a database, a set of services via virtual platforms, accessing and using its acquirers such a database.
In this regard, it is asked whether the sale of such access keys to a public entity is subject to the IGV (Impuesto General a las Ventas – General Sales Tax/VAT).
2. Analysis and legal bases
2.1. The IGV and the sale of personal property in the country
According to Article 1 of the IGV Law, this tax is levied on the sale of personal property in the country, among other transactions.
Sale: In this regard, Article 3(a) of the aforementioned law states that sale is any act by which goods are transferred for valuable consideration, regardless of the designation given to the contracts or negotiations giving rise to such transfer and the conditions agreed upon by the parties.
2.2. Intangible assets
Concerning the intangible assets included as personal property in the IGV Law (distinctive signs, inventions, copyrights, key rights, and similar), it should be noted that SUNAT has pointed out that the IGV includes within the definition of “personal property” all intangible assets sharing the characteristics of personal property, which excludes those considered as real estate for the Civil Code.
2.3. What are Access Keys?
Regarding the assumption raised in the consultation, it should be noted that the access keys are the means to access and use the database of a non-domiciled legal entity. Therefore, their sale by a domiciled company authorized by the aforementioned legal entity for its commercialization represents the transfer of the aforementioned right.
Concerning its transfer, a right transferable to third parties and not considered real estate by the Civil Code may qualify as personal property for the provisions of the IGV Law.
2.4. Importance of being domiciled in the country
As an intangible, the sale of access codes will be subject to IGV tax as long as located in the national territory, requiring that both the owner and the acquirer are domiciled therein.
Therefore, the transfer to a public entity of the right to access and use the database of a non-domiciled legal entity through access codes by a domiciled company authorized by it for its commercialization is subject to IGV.
Source: SUNAT 23/11/21