This November 30, the “laley.pe” website published a report on the attribution of joint and several liabilities in tax matters and its implications in tax compliance.
1. Joint and several liabilities of legal representatives
According to the specialist Roy J. Márquez Oppe, it is of doctrinal and jurisprudential acceptance that the consequences that imply the attribution of Joint and Several Liability to a legal representative of a company are only limited to the period during which said officer was in charge of, among other actions, the decision making in tax matters of the company.
2. Subsidiary liability
Subsidiary Liability, recognized in doctrine, implies the liability of a subject due to the non-payment of an obligation originally attributable to a third party. This implies that the third party will only have the obligation of paying if the owner does not.
3. Concept of joint and several liability
The specialist indicates that Joint and Several Liability is a joint obligation on the same debt, whose enforceability extends indistinctly to subjects other than the holder of the original obligation under the provisions of a rule or the voluntary submission to freely accepted conditions.
4. Legal framework
Article 16 of the Tax Code establishes that the legal representatives and those assigned by legal entities, among others, are obliged to pay taxes and comply with formal obligations as representatives, with the resources they administer or have at their disposal. Joint and Several Liability arises due to fraud, gross negligence, or abuse of powers if tax debts are not paid.
5. View of SUNAT on the issue
The Central Tax Administration has stated in Directive No. 011-99/SUNAT that “the legal representatives, administrators, agents, business managers and executors referred to in Article 16 of the Tax Code are jointly and severally liable with the taxpayer for those acts related to their management”.
6. Position of the tax court
The Tax Court reiterated jurisprudence, such as resolutions N°s. 07727-10-2020, 00232-3-2010, 06749-2-2006, and 07254-2-2005, among others, has provided that in the imputation of joint and several liabilities to the legal representatives, it is necessary to verify the following:
- If they have such capacity in the periods for which joint and several liabilities are attributed.
- If they are in charge and/or participate in the determination and payment of taxes for such periods.
- If the non-compliance with the tax obligations occurred due to fraud, gross negligence, or abuse of powers of the representative.
According to the aforementioned specialist, the criterion of the temporality of the management should not be considered, especially if Article 16 of the Tax Code in force has not provided for it exhaustively. This, in addition to the fact that it is inherent to the management function to make decisions regarding the compliance and/or regularization of tax obligations, whether passive (from previous administrations) or current, in strict compliance with the principle of “due diligence” that is part of the procedure of such officers.
Source: La Ley 01/12/21