According to Peruvian law, income obtained from digital services used or consumed in the country will be subject to income tax, according to paragraph i) of Article 9 of the Income Tax Law.
Requirements for Tax Regulations to Qualify as a Digital Service
Specifically, paragraph b) of Article 4-A of the Income Tax Law regulations establishes the considerations regarding the qualification of a service as a digital service. Regarding the characteristics that the referred service must comply with, the SUNAT (Superintendencia Nacional de Aduanas y Administración Tributaria – National Superintendence of Customs and Tax Administration), in several reports (Reports No. 018-2008-SUNAT/2B0000, 124-2012-SUNAT/4B00000, among others) has determined the following for its qualification:
- To be a service.
- To be provided through the Internet, any adaptation or application of protocols, platforms, or technology employed by the Internet or any other network.
- To have online access.
- To be essentially automatic, i.e., it must require minimal human intervention.
- Unfeasible when there is no 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, the 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:
- Online technical support services through an electronic platform, through which the service users raise queries to be answered by technicians from the same platform or by e-mail.
- Consulting services through video conference or by e-mail by a person.
The SUNAT interprets that the list of assumptions included in the second paragraph of paragraph b) of Article 4-A of the ITL Regulations are, per se, digital services, regardless of whether or not they comply with the above characteristics. Therefore, the services in question, since their inclusion in items 2 and 7 of the second paragraph of paragraph b) of Article 4-A of the ITL 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 SUNAT’s conclusion does not agree with the jurisprudence that has been issued to date concerning 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 digital 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, 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 actually have different scopes to assess compliance with each of the requirements to determine whether it qualifies as a digital service.
Unquestionably, the position of the Tax Administration contravenes the provisions of the Income Tax Law, which introduced the concept of “digital services” to establish a new connection criterion to levy e-commerce income.
Therefore, taxpayers must be aware of the regulations, jurisprudence, and administrative opinions of the SUNAT so that, from the contrast of all sources, they can appropriately apply the tax considerations.
Therefore, at VAG Global, we have accounting and tax advice for companies to have an expected tax performance.
Source: SUNAT