Issue in Dispute
The issue in dispute is whether the suspension of the statute of limitations provided for in the second-to-last paragraph of Article 46 of Peru’s Tax Code applies to the specific case, considering that:
- The tax contentious proceeding was initiated prior to the entry into force of Legislative Decree No. 1311; and
- Such Decree amended the second-to-last paragraph of Article 46 of Peru’s Tax Code, expressly clarifying that the suspension of the statute of limitations during the processing of a tax contentious proceeding is limited to the time periods established under the Tax Code for deciding appeals. The statute of limitations period resumes running as of the day following the expiration of the statutory deadline to decide.
Relevant Legal Framework
- Original text of the second-to-last paragraph of Article 46 of Peru’s Tax Code: It provided for the suspension of the statute of limitations in connection with the processing of a tax contentious proceeding. However, that wording did not expressly address the effects of the adjudicating authorities’ exceeding the statutory deadlines to decide, which led to divergent interpretations in both administrative and judicial proceedings.
- Text as amended by Legislative Decree No. 1311: It provides that, in cases of administrative claims or appeals, the suspension of the statute of limitations applies only for the time periods established in Peru’s Tax Code to decide such remedies, and the statute of limitations resumes running as of the day following the expiration of the statutory deadline to decide. This applies only to claims initiated after the provision entered into force and, where applicable, to appeals arising from such claims.
Holding of the Decision
The Supreme Court, consistent with Cassation No. 11947-2022-Lima, upheld the cassation appeals filed by SUNAT and the Tax Court (Tribunal Fiscal), holding that Legislative Decree No. 1311 does not have retroactive effect and therefore does not apply to tax dispute proceedings initiated prior to its entry into force. In such cases, the original wording of Article 46 of Peru’s Tax Code applies, under which the statute of limitations on the government’s power to collect had not lapsed, given that the relevant challenges were filed before the Decree took effect.
Alignment with the Constitutional Court’s Approach
Without prejudice to the foregoing, it is worth noting that the Supreme Court refers to the Constitutional Court’s decision in Case File No. 02051-2016-PA/TC, in which the Court held that the second-to-last paragraph of Article 46 of the Consolidated Text (TUO) of Peru’s Tax Code, in its original wording, is constitutionally valid insofar as it allows the statute of limitations to be suspended during the processing of a tax contentious proceeding only within the statutory time limits established to decide the remedies filed by the taxpayer. Accordingly, such suspension should not apply to any additional time exceeding those limits that the Tax Administration takes to resolve the challenges raised.
However, while the Supreme Court acknowledges that constitutional standard, it does not adopt it as the deciding benchmark in the present case. The Court notes that the Constitutional Court’s ruling was issued in the context of amparo proceedings and with effects limited to the specific case; therefore, it is not determinative for purposes of the legality review conducted in the contentious-administrative proceeding.
To view the cassation decision referenced above, please click the link below: https://acortar.link/H8bCz7