Issue in Dispute
The central issue in dispute is whether, for purposes of applying Articles 5 and 8 of Law No. 28194 (Peru’s Law to Combat Tax Evasion and Promote the Formalization of the Economy), payments made through fund transfers processed via foreign financial institutions qualify as valid means of payment to substantiate expenses and other tax effects, or whether valid means of payment are limited solely to those channeled through institutions within Peru’s domestic financial system.
More specifically, the dispute focuses on whether Law No. 28194 requires bank transfers to be made from accounts held with institutions supervised by Peru’s Superintendency of Banking and Insurance (SBS)—as argued by SUNAT and upheld by the Tax Court (Tribunal Fiscal)—or whether no such requirement can be inferred from the statutory text.
Holding of the Decision
The Supreme Court upheld the taxpayer’s interpretation and established the following criterion:
- A plain reading of Articles 5 and 8 of Law No. 28194 does not establish any specific requirement limiting valid means of payment solely to those processed through entities within Peru’s domestic financial system.
- The law neither prohibits nor excludes the use of means of payment processed through foreign financial institutions, provided that the transactions are banked transactions (i.e., carried out through the banking system).
- The purpose of Law No. 28194 is to ensure that transactions are properly banked—so they can be verified and monitored—and to help reduce tax evasion, rather than to impose a territorial restriction on the financial institutions involved.
Accordingly, the Supreme Court concludes that means of payment used through foreign financial institutions qualify as valid mechanisms to substantiate transactions for tax purposes, provided that they fulfill the banking-channel (bancarización) objective set forth in Law No. 28194.
Under this approach, the Supreme Court rejects the restrictive interpretation adopted by SUNAT and the Tax Court (Tribunal Fiscal), finding that it introduces a requirement not contemplated by the law and therefore lacks legal basis.
To view the cassation decision referenced above, please click the link below: https://acortar.link/ZC2VVY