Through Report No. 75-2021, SUNAT (Superintendencia Nacional de Aduanas y de Administración Tributaria – National Superintendency of Customs and Tax Administration) issues an opinion related to the IGV (Impuesto General a las Ventas – General Sales Tax) affectation in the acquisition of equipment and installation services to a user company of a ZED (Zona Especial de Desarrollo – Special Development Zone).
1. Matter of Consultation
A user company of a Special Development Zone (hereinafter ZED) is supposed to acquire from the national market a piece of equipment that requires a part of it to be installed outside the ZED for its operation, being its components introduced by the seller in the said zone and being included in the mentioned acquisition the installation service.
In this regard, the following is asked:
- Would it not qualify as an export that one part is outside the ZED and another part is inside thereof, being both connected to operate and the components to be installed outside the ZED must be removed from the ZED?
- Will the installation service of the part of the equipment that will be provided outside the ZED be subject to the General Sales Tax?
2. Analysis
First, we consider it important to define what is understood by a ZED. For this purpose, Article 7 of the ZED Law and Article 3 of its Regulations state that:
These are geographic areas duly delimited in which certain services may be rendered, qualifying as exports the entry of national goods to such zones, as well as the rendering of services coming from the rest of the country.
Likewise, these zones aim at promoting investment stability and employment, contributing to sustainable socio-economic development, competitiveness, and innovation in the regions they are located.
Secondly, according to Article 33 of the IGV Law, exports of goods are not subject to this tax, provided that a person domiciled in the country performs it in favor of a non-domiciled person, regardless of whether the property transfer occurs in the country or abroad, as long as such goods are subject to the definitive export customs procedure.
Likewise, numeral 8 of Article 9 of the Regulations of the IGV Law provides that goods are considered exported to ZEDs when the following requirements, among others, are concurrently met:
- The transferor shall be subject to the customs procedure for the definitive export of national or nationalized goods from the rest of the national territory destined for the ZEDs.
- The use takes place entirely in the ZEDs.
Under the premise mentioned in the first question, the equipment acquired from the domestic market by the user company of a ZED is brought into this zone for its use therein. However, some of its components must be installed outside this zone for its operation, which must be removed for the effect of the ZED.
In this regard, according to Report No. 047-2021-SUNAT/340000, it has been established that “it is legally feasible to request the exit to the rest of the national territory of a part of the components that make up an equipment acquired locally and definitively exported to the ZED through the import regime for consumption or reimport in the same state, as long as compliance with the requirements for the regime is verified“, and that such exit “does not denaturalize the definitive export regime, since its materialization with the effective exit of the goods to the mentioned special zone“.
Therefore, concerning the first question, the components installed abroad and their removal from the said zone would not imply that the goods would not be considered exported to the ZED, to the extent that the use of the equipment, i. e., the purpose for its acquisition, takes place entirely in the zone, which must be determined in each particular case.
On the other hand, concerning the second question, according to Article 14 of the IGV Law, the sale value of the good or payment for services, depending on the case, is understood to be the total amount that the purchaser of the good or user of the service must pay, and when these taxed operations are provided with movable goods or services, the value of these will form part of the taxable base, even when they are exempt or not taxed.
In this regard, the Tax Court through RTF No. 00002-5-2004 has stated that,
“The common purpose of two different services delimits when they are autonomous and when it is the main obligation or an accessory one. In the latter case, the subsequent (accessory) activity must be added to achieve the target pursued with the first (main) obligation“.
In this regard, concerning the second question, it is concluded according to item 2 of this Report that the acquisition of the equipment by the company using a ZED qualifies as an export and, as such, is not subject to IGV (Value Added Tax):
To the extent the installation service thereof inside and outside said zone to be performed by the seller is part of the value stated in the payment voucher issued for said operation and its provision is necessary to carry it out, the referred service shall have the character of accessory to the aforementioned sale, and as such, it shall be exempt from the aforementioned tax.
Source: SUNAT 06/09/21
