Through Report No. 102-2021, SUNAT (Superintendencia Nacional de Aduanas y de Administración Tributaria – National Superintendence of Customs and Tax Administration) comments on the constitution of an operation as an export of services, analyzing the requirements established in the IGV (Impuesto General a las Ventas – General Sales Tax/VAT) Law.
This case analyzes whether it constitutes export of services when domiciled companies perform customs clearance and/or local transportation on behalf of a non-domiciled one, which in turn has been entrusted with the delivery of products purchased by customers in Peru of a non-domiciled company that markets its products on an online digital sales platform.
Operations taxed with IGV
According to Article 1° of the IGV Law, the following operations are taxed:
- The sale of personal property in the country.
- The rendering or use of services in the country.
- Construction contracts.
- The first sale of real estate, carried out by the builders thereof.
- The importation of goods.
In this regard, any operation other than those established in the application scope of the IGV will not be taxed.
The export of services is one of these, regulated in Article 33 of the aforementioned law.
Requirements to export services
The fifth paragraph of Article 33 of the IGV Law establishes that services shall be considered exported when they concurrently comply with the following requirements:
- They are provided for valuable consideration from the country to abroad what must be demonstrated with the corresponding proof of payment, issued under the relevant regulations and recorded in the Register of Sales and Revenues.
- An exporter is a person domiciled in the country.
- The user or beneficiary of the service is a person not domiciled in the country.
- The use, exploitation, or taking advantage of the services by the non-domiciled person takes place abroad.
It should be noted that, in addition to the aforementioned requirements, the exporter of services must be previously registered in the Registry of Exporters of Services in charge of SUNAT.
Immediate Economic Benefit
The IGV Regulations state that services are considered to be rendered from the country to abroad when:
- The rendering of the service by the person domiciled in the country is performed entirely in Peru
- The use, exploitation, or taking advantage of the services by the non-domiciled party takes place abroad, whereby the place the first act of disposition of the service occurs is considered as the immediate economic benefit that the service generates to the non-domiciled user.
This provision is based on the principle of taxation in the country of destination. By this, the State where a cross-border transaction is taxed is that one the consumption of the good or service takes place. Thus, the export of the goods or service carried out in the country of its production is not taxed with the excise tax, affecting the import of goods and services otherwise.
Likewise, it must mention that, by considering this principle the most suitable, most countries choose to apply it in their legislation since it contributes to the proper functioning of foreign trade, facilitating the application of tax neutrality in international trade transactions.
According to the assumption raised in the consultation, the purpose of the services provided by the domiciled companies to the non-domiciled one in charge (in turn) of carrying out the operation of the non-domiciled company that sells on a digital platform is the delivery of the goods to the customers domiciled in the country.
In this regard, the immediate economic benefit that such services generate to the non-domiciled companies takes place in the country since it is here where the goods are delivered to the customers domiciled in the country, thus materializing the sale of the products in the time and opportunity offered, in such a way that the use, exploitation or exploitation of the service provided by the domiciled company to the non-domiciled company would not take place abroad but in the country.
Customs clearance and/or local transportation services performed by domiciled companies to entrust a non-domiciled company to deliver to customers in Peru the products that a non-domiciled company markets on an online digital sales platform do not qualify as export of services.
Source: SUNAT 30/11/21