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Fiscal court and excess of powers

05.09.2017

Pursuant to Resolution No. 05359-3-2017 and payments on the account of income tax

Gary Salazar Paz1

In principle, we recall that on October 30, 2015, through the Official Gazette “El Peruano”, the Cassation relinquished in file No. 4392-2013 (hereinafter “the Cassation”), issued by the Chamber Of Constitutional and Social Right of the Supreme Court of Justice of the Republic. This pronouncement generated much controversy about the legal nature and essence of the tax advances, specifically, the payment on account of Income Tax2 (IR).

The controversy focused on determining whether, as a consequence of the variation in the determination of the coefficient of the payment on account of the IR due to the presentation of a rectificatory of the annual declaration of said tax in 2001, Of default interest on unpaid items due to the application of a new coefficient in 2002.

In this regard, the Tax Administration and the Tax Court considered that since the taxpayer omitted to cancel the payments on account as appropriate, since by the modification of the coefficient -product of the affidavit of Income Tax.

 For its part, the Supreme Court used the literal interpretation method to give meaning to numeral a) of article 85 of the IR Act. To that end, it determined the nature of The payment payments to the account of the IR, concluding that they consist of “monthly benefits that by mandate of the law must be met.” However, it is mentioned that the fact that it is a monetary benefit, besides the fact that it is of a legal configuration, does not undeniably determine that it qualifies as a tax.

In this way, the Supreme Court concludes that the application of default interest occurs when payments on account are not paid in a timely manner, determined based on elements existing at the time of cancellation of the payment on account, without this meaning that it will generate Interest when the principal obligation is subsequently rectified.

However, note that after this judicial precedent, the Fiscal Court has ruled with a position different from that held by the Supreme Court. In fact, at the discretion of the said administrative body, if the coefficient was modified for any reason, resulting in omissions to the payments on account of the IR, the moratorium interest was due. In this line, on July 8, 2017, the Compulsory Enforcement Resolution No. 05359-3-2017 was published in the Official Gazette, through which the Tax Court ends its position outside the limits of the Court’s decision Supreme. Note that with this precedent, the aforementioned body leaves no doubt of its rejection of the interpretation of the Judicial Power embodied in the Cassation.

Although we have not located any jurisprudence where the Court expressly mentions that administrative authorities should also be governed by a binding precedent of the Supreme Court, there are resolutions where the said body has indicated that in concrete cases it would not apply a judicial decision for not Be treated as a “binding precedent”. On the side of the Tax Administration, through Report N ° 73-2014-SUNAT-5D1003, SUNAT analyzes the binding precedent established in Judgment of Cassation No. 45-20124, and makes clear its position on the fact that it does not Adoption of a binding precedent is contrary to law; Or, at least, that was said in the report.

Likewise, we must mention that the position of the Tax Court may be a matter of challenge in the Judiciary, where the Supreme Court should prevail its criterion and reject the argument of the administrative body.


1 Public Accountant and Lawyer. Masters of Business Administration; Postgraduate in Taxation and Finance; Postgraduate in International Taxation and Transfer Prices from the Universidad Austral in Buenos Aires, Argentina. Associate of IPIDET and IFA – Grupo Peruano. Managing Partner of ECOVIS PERU Salazar & Asociados. 2 Whose Single Text Order was approved by Supreme Decree No. 179-2004-EF.

2 Whose Single Text Order was approved by Supreme Decree No. 179-2004-EF.

3 See in: http://www.sunat.gob.pe/legislacion/oficiosAd/2014/informes/2014-INF-073-5D1000.pdf.

4 To a greater extent, the sentence of cassation under a comment established as jurisprudential doctrine that “(…) vehicles seized that are under the custody of the Customs Administration by provision of the Prosecutor confirmed by the Judge of the Preparatory Investigation, must be so Until a writ of dismissal, conviction or acquittal from a final decision ordering its confiscation or ordering its return is issued; The Judge being the sole authority to examine and dispose of the return of the property; According to each specific case “.