The Peruvian Commodity Communication Graduality Regime
Background
Peruvian tax legislation regulates the formal obligations of taxpayers that carry out export or import operations of goods with known quotation in international markets. These obligations are detailed in numeral 1 of paragraph e) of article 32-A of the Income Tax Law (LIR), which establishes that taxpayers must file a communication with SUNAT in which specific information of each operation must be provided. According to what is indicated in the regulation, the communication must be filed up to the date of the beginning of the shipment or disembarkation and must contain the complete information according to what has been agreed.
Report No. 000063-2024 – SUNAT/7T0000
According to the fifth paragraph of numeral 1 of subsection e) of article 32-A of the LIR, it is stated that if such communication is not filed, is incomplete or is filed late, the date of the end of the shipment, in the case of exported goods, and the date of disembarkation, in the case of imported goods, will be considered as the date of the quotation value.
However, through the publication of Report No. 000063-2024 – SUNAT/7T0000 on September 6 of this year, it is mentioned that the penalties applicable to an infraction in the presentation or not of the referred communication would be subject to the Graduality Regime (according to numbers 2 and 4 of article 176 of the Peruvian Tax Code).
Graduality Regime
The Graduality Regime, regulated by Superintendence Resolution No. 063-2007/SUNAT, allows the reduction of penalties to taxpayers who, despite having incurred in an infraction, correct the omission or error in the filing of the communication. There are several scenarios that may generate an infraction, such as:
- Failure to file the communication.
- Filing it out of time.
- Submitting incomplete information.
- Providing information not in accordance with what was agreed in the transactions.
This flexibility is key, since it encourages voluntary regularization and contributes to mitigate the risks associated to the non-filing or sending of incomplete information. However, although the financial penalty may be reduced, the legal effect does not disappear: in case of late submission, the quotation date will be that of the end of the shipment (for exports) or of the disembarkation (for imports).
Objectives of the Transfer Pricing Regulations
One of the main objectives of the Transfer Pricing Regulations is to prevent tax evasion through price manipulation between related companies. By requiring the submission of a detailed formal communication prior to the shipment or disembarkation of goods, SUNAT not only seeks to obtain accurate information on the transactions, but also to verify that the prices applied truly reflect the market value. In this sense, it is not only an administrative formality, but also a control mechanism that prevents companies from inflating or reducing the prices of their operations in order to benefit fiscally.
