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Late payment and the right to reasonable time, is it a solved problem?

13.01.2017

Gary Salazar Paz1

On September 21st, the Peruvian Constitutional Court (hereinafter “Tribunal Constitucional” or “TC”) published the Constitutional Court’s Judgment related to the File No. 04082-2012-PA/TC (hereinafter “STC”), regarding a petition of amparo filed by Emilia Rosario del Rosario Medina de Baca, against the Peruvian Tax Authority (hereinafter “Superintendencia Nacional de Aduanas y de Administración Tributaria” or “SUNAT”).

Specifically, the taxpayer claimed that after being charged with the Income Tax payment of year 2004, both in its appeal resource as its claim resource, SUNAT and the Tax Court (hereinafter “Tribunal Fiscal or TF”) have been taken more than 2 and 4 years to respond to their challenges, correspondingly. In fact, such delay in resolving disputes have resulted in the debt, initially S/ 22,889, becoming to S/ 116,873, five times greater than initially.

It happened that, at the time of the dispute, in 2004, the rule of application of the interest capitalization on tax debts was in the legal system. On the other hand, there was no rule in the Peruvian Tax Code (hereinafter “Código Tributario or “CT”) as whether the moratorium interest had to be collected during the period of the administrative or judicial challenge of the determinations and fines.

At this point, the rule of article 33 of the aforementioned CT was part of Legislative Decree No. 981 of 2007, which established that: “[…] the suspension of interests is not applicable to the stage of appeal in the Tax Court nor during the processing of the contentious-administrative claim”. Nonetheless, through article 7 of Law No. 30230 of 2014, it was provided that: “[…] the interest suspension is not applicable during the processing of the contentious-administrative action.”

Thereby, the maximum interpreting body of the Constitution has provided that:

  • The application of the rule of interest capitalization of tax debts that was active for seven years (from 1999 to 2005), violates the principle of reasonableness, and the application of this measure is clearly excessive. In that case, the claim is declared founded on this point, ordering SUNAT to calculate the applicable moratorium interest without taking into account such rule.
  • The estimation of arrear interest during the procedure of the tax litigation adversely affects the right to appeal at administrative level, as well as the principle of penalties reasonableness. Accordingly, it is provided that SUNAT must suspend the counting of arrear interest in the time of excess against the term of the law incurred by the Tax Court in resolving the procedure.

Thus, although according to the Constitutional Procedural Code (Law No. 28237) the effects of the amparo are very personal and it could hardly be understood that the STC commented is binding in some way, the TC is establishing a fundamental criterion for other taxpayers who may have suffered from excessive response times by administrative bodies and tribunals, while in these cases article 33 was in force before the modification of year 2014; punctually, in the cases of SUNAT and TF, in the case of tax debts. To highlight the mentioned comment, it is intriguing to think about the course that could take the well-known controversy between Telefónica del Perú S.A.A. and SUNAT, currently in demand for amparo pending the resolution of the TC.

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 – Peruvian Group. Managing Partner of Ecovis Perú.