New Mandatory Precedent issued by the Tax Court

August 9, 2021

Through Tax Court Resolution No. 06569-4-A-2021, the aforementioned entity issues a New Precedent of Mandatory Observance, having eventually legal force, following the provisions of the Consolidated Text of the Tax Code.

1. About issues discussed

A. Background

As background, the value adjustment (which resulted in the issuance of the Value Determination Report, having as background the request for refund raised, in which the appellant establishes as a claim for the refund of a Collection Settlement (type 29), generated through the Customs Declaration of Goods, considering that the customs value declared for the imported goods corresponds to the price actually paid or payable and the determination made by the Customs Administration was not under the law, attaching the documentation that it has considered as accredited to the declared value

Customs notifies through the aforementioned Value Determination Report that: the importing company requested a refund for undue or excess payment of duties paid through the Collection Settlement (Type 29 – Self-settlement), attaching the documentation to prove the declared value. Consequently, the Customs Administration continued with the Reasonable Doubt Procedure.

In this sense, the subject matter of this resolution consists of verifying whether the pronouncement of the Customs Administration with respect to the value adjustment made is or is not in accordance with the law.

B. Analysis

The Report that supports the Plenary Chamber Agreement No. 2021-013 states the following: 

“In the event that the customs value is questioned, the Customs Administration is empowered to initiate a reasonable doubt procedure, once the refund has been requested to determine the customs value in order to verify its origin, which will culminate with the determination supported in the respective Value Determination Report, and the following results may be obtained:

  1. The customs value initially declared is maintained, ratifying the taxes paid, whereby a Collection Assessment is not issued, since there are no taxes left unpaid;
  2. The initially declared customs value is not maintained when a higher amount is verified, generating a difference of unpaid taxes, for which the respective Collection Settlement is issued;
  3. A lower amount than that requested is recognized, reassessing taxes based on the new customs value.

In any of the three cases, if the Value Determination Report and its respective Collection Settlement were issued, they would serve as a basis for resolving the refund request, so the Customs Administration would declare whether or not the refund is admissible, considering such determination.”

In accordance with the above, there are three possible pronouncements the Customs Authority may issue to resolve a refund request, when it has issued a Value Determination Report:

  1. The right to a partial or total refund is recognized. 
  2. The right to any refund is not recognized since the taxes determined as a consequence of the importation are, in its opinion, the correct ones.
  3. Not only is there no right to any refund to be recognized, but also taxes unpaid on importation are determined

Therefore, in any of the three (3) cases, the Value Determination Report will support the Administration’s decision to accept or deny, totally or partially, the refund request. However, it will serve only in case C to issue a Determination Resolution that supports the taxes unpaid.

Concluding a claimable action in the first two options, as a result, resolving the resolution to the refund request that the value determination report accompanies, existing the resolution and the determination resolution together in the third option.

Due to this recurrent obstacle, see resolutions N° 03018-A-2021, 02755-A-2021, 02558-A-2021, 02351-A-2021, 02342-A-2021, and 02339-A-2021, the Tax Court established the following mandatory precedent.

2. Mandatory Precedent

According to the second resolution, it states under Article 154 of the Consolidated Text of the Tax Code, this resolution constitutes a mandatory precedent, ordering its publication in the official gazette “El Peruano” insofar as it establishes, according to the provisions of Supreme Decree No. 206-2012-EF, the following as a recurring criterion:

“The issuance of a Value Determination Report does not constitute a claimable act by itself in proceedings related to a refund request, but only supports the resolution that resolves the refund request or the determination resolution and/or of the collection settlement, as the case may be.”

Source: El Peruano 04/07/21