Transfer prices: Changes implemented in Legislative Decree 1381

Legislative Decree No. 1381 published on August 24, 2018, introduces changes to the Income Tax Law, which will enter into force on January 1, 2019, such as:

• Extend the scope of application of transfer pricing rules;
• Add the communication requirement to SUNAT in foreign trade operations of goods with a quoted price in the market prices; and
• Extend the qualification criteria of countries with low or no taxation.

 

AREA OF APPLICATION

What happens in the field of foreign trade?

In the operations within the scope of application of the transfer pricing rules for export or import of goods with a known price in the commodity market, local market or destination market, including those of derivative financial instruments, or with prices that are fixed taking as a reference the quotes of the indicated markets, the market value is determined on the basis of such quotation values.

 
FOREIGN TRADE
What happens in the field of foreign trade?

In the operations within the scope of application of the transfer pricing rules for export or import of goods with a known price in the commodity market, local market or destination market, including those of derivative financial instruments, or with prices that are fixed taking as a reference the quotes of the indicated markets, the market value is determined on the basis of such quotation values.

What date will be considered to fix the market value in these operations?

The date or quotation period agreed upon by the taxpayer to SUNAT is considered as the date of the contribution value, provided that it is in accordance with the agreement of independent parties on equal or similar terms.

What is new in this aspect?

The taxpayer must submit a communication with the character of an affidavit not less than 15 working days from the date of embarkation or disembarkation.

If the aforementioned communication is not presented or is presented extemporaneously or incompletely, or contains information not according to the agreement, the date of the quotation value will be considered as the term of the shipment of exported goods.

In the case of imported goods, the date of the quotation value shall be considered as the date of the disembarkation term.

What should that communication contain?

This communication must contain the contract and / or details of the transaction, such as date or period of contribution, type of contract, identification of the counterparty, type of product, unit of measure and quantity, amount of the transaction, quotation market, incoterm agreed, costs of refining and treatment, other discounts and prizes to correspond, among other information, according to what the regulation establishes.

 
PREFERENTIAL TAX REGIMES
New qualification criteria for countries or territories that are not cooperating or with low or no taxation

Legislative Decree 1381 refers to the qualification criteria of non-cooperating countries or territories with low or no taxation must be based on at least one of the following aspects:

• Lack of transparency at the legal, regulatory or administrative functioning level
• No exchange of information or existence of legal norms or administrative practices that limit it
• Absence of the requisite of substantive local presence or of the exercise of a real activity or with economic substance
• Effective zero or low taxation.