According to Peruvian law, income obtained from digital services used, used or consumed in the country will be subject to income tax in accordance with paragraph i) of article 9 of the LIR.
What does the tax regulation qualify as a digital service?
Specifically, paragraph b) of article 4-A of the LIR Regulations establishes the considerations regarding the qualification of a service as a digital service. Regarding the characteristics that the referred service must comply with, SUNAT in several reports (Reports No. 018-2008-SUNAT/2B0000, 124-2012-SUNAT/4B00000, among others) has determined that for its qualification the following must be complied with:
- It is a service.
- It must be provided through the Internet or any adaptation or application of protocols, platforms or technology used by the Internet or any other network.
- It is provided through online access.
- It must be essentially automatic, i.e., it must require minimal human intervention.
- Not feasible in the absence of information technology.
Likewise, the referred Article 4-A in its second paragraph provides a non-exhaustive list of services that qualify as digital services.
The Report No. 000039-2024-SUNAT/7T0000
In this regard, SUNAT published last June 14, 2024 Report No. 000039-2024-SUNAT/7T0000, which resolves the taxpayer’s query as to whether the following cases qualify as digital services:
- Technical support services provided online through an electronic platform, through which the users of the service raise queries that are answered by technicians through the same platform or by e-mail.
- Consulting services provided by a person through video conference or by e-mail.
SUNAT interprets that the list of assumptions included in the second paragraph of paragraph b) of article 4-A of the LIR Regulations are per se digital services, regardless of whether or not they comply with the aforementioned characteristics. Therefore, it concludes that the services in question, since they are included in items 2 and 7 of the second paragraph of paragraph b) of article 4-A of the LIR Regulations, respectively, qualify as digital services and the income generated by them is subject to tax.
Analysis of the Report No. 000039-2024-SUNAT/7T0000
The conclusion reached by SUNAT does not agree with the jurisprudence that has been issued to date with respect to digital services, considering for example that the Tax Court in a recent and previous pronouncement through RTF No. 05129-4-2024 dated May 30, 2024, concluded that for a service to qualify as a digital service and “whose remuneration constitutes Peruvian source income, it is essential to verify in each specific case the configuration of the constitutive elements described above”.
Although the domestic legislation determines a list of cases that qualify as digital services, the fact is that it does not specify that such cases should not comply with the requirements described above.
Thus, the report rules on services that comply with being “essentially automatic” and does not analyze the requirement of being provided “through online access”, so that, although both services may be almost instantaneous, they really have different scopes that merit an analysis of compliance with each of the requirements to determine whether it qualifies as a digital service.
There is no doubt that the position of the Tax Administration contravenes the provisions of the Income Tax Law, which introduced the concept of “digital services” in order to establish a new connection criterion through which income that before e-commerce was not taxed will be taxed.
Therefore, it is necessary for taxpayers to be aware of the regulations, jurisprudence and administrative opinions of SUNAT so that, from the contrast of all sources, they can apply the tax considerations in an appropriate manner. Therefore, in VAG Global we have accounting and tax advice that will allow your business to have the expected development at tax level.
Source: SUNAT