The question is whether, in the context of a tax audit, the effects of being classified as a Taxpayer Without Operational Capacity (SSCO)—as set forth in paragraph 9.1 of Article 9 of Legislative Decree No. 1532—may be applied by disregarding transactions involving such taxpayers where the relevant payment vouchers (tax invoices) were issued from the day following the publication of Legislative Decree No. 1532 up to the publication date of the resolution that assigns them SSCO status.
Key Legal Framework
- Article 9.1 of Legislative Decree No. 1532: It provides that payment vouchers (tax invoices) issued by a Taxpayer Without Operational Capacity (SSCO) do not allow the recipient to claim input VAT credit or any other right or benefit derived from VAT (IGV), nor may they be used to support costs or expenses for Income Tax purposes.
- Article 10: It allows the taxpayer to request a review of the payment vouchers (tax invoices) within 30 business days following the publication of the SSCO list, so that the eligibility to claim input VAT credit or deduct the related expense may be assessed through a partial tax audit procedure.
Accordingly, as a general rule, if a supplier is classified as an SSCO and the customer does not timely request a review within the statutory period, the payment vouchers (tax invoices) issued by that supplier will not entitle the customer to claim input VAT credit or to support costs or expenses for tax purposes.
What should the taxpayer do?
When SUNAT publishes the SSCO list, the taxpayer has 30 business days to submit a request to review the payment vouchers (tax invoices) issued by that supplier (Article 10).
If the taxpayer does so:
- SUNAT initiates a partial tax audit procedure.
- The restrictive effect under Article 9.1 does not apply automatically.
- Eligibility to claim input VAT credit or support the related expense will be assessed based on the substance of the transactions.
What happens if the taxpayer does not file the request?
If the taxpayer does not request the review within the 30-business-day period, then in any subsequent tax audit the effects provided for in Article 9.1 of Legislative Decree No. 1532 will apply.
This means:
- Loss of the VAT (IGV) input tax credit.
- Disallowance of the related cost or expense for Income Tax purposes.
Relevant exception:
If, at the time the resolution assigning SSCO status becomes final, a comprehensive tax audit or a non-electronic partial audit was already underway for the periods involved, eligibility to claim input VAT credit or support the related cost or expense will be assessed within that audit procedure, and Article 9.1 will not apply automatically.
SUNAT’s Conclusions
- If an audit is already underway If a comprehensive tax audit or a non-electronic partial audit is already underway and was initiated before the resolution classifying the supplier as an SSCO becomes final, the validity of the input VAT credit or the related expense will be assessed within that audit. In this case, the effects of Article 9.1 of Legislative Decree No. 1532 do not apply automatically.
- If the taxpayer requests a review within 30 business days Within 30 business days following the publication of the SSCO list, SUNAT must initiate a partial tax audit, and the effects under Article 9.1 likewise do not apply automatically.
- If the taxpayer does not request the review within the statutory periodIn any subsequent tax audit, the effects under Article 9.1 will apply, which entails the loss of the input VAT credit and the disallowance of the related cost or expense for tax purposes.
Commentary
Legislative Decree No. 1532 provides, as a general rule, for the loss of input VAT (IGV) credit and the disallowance of the related cost or expense for Income Tax purposes with respect to payment vouchers (tax invoices) issued by a Taxpayer Without Operational Capacity (SSCO). However, this consequence does not apply automatically if the taxpayer timely activates the review mechanism set forth in Article 10, or if an ongoing audit falls within the applicable statutory exception.
It should be clarified that submitting a review request does not guarantee the preservation of the input VAT credit or the expense/cost for tax purposes; it only prevents their automatic disallowance and shifts the dispute to a tax audit procedure, in which the taxpayer may substantiate the economic substance and factual reality of the transactions.
In this context, taking timely action upon publication of the SSCO list is critical to mitigate significant exposure relating to VAT (IGV) and Income Tax.
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