A query is submitted to SUNAT as to whether, in the case of a non-domiciled holding company, direct and indirect holder of shares representing the capital of a legal entity domiciled in Peru, which has changed the location of its place of effective management -which was previously located in the country of its incorporation- to a third foreign country, without such change implying the liquidation or dissolution of the holding company in the country of its incorporation or the incorporation of a different legal entity in the third foreign country.
Based on the aforementioned case, the query is whether the change in the place of effective management of the non-domiciled holding company implies a direct or indirect transfer of the shares of the legal entity domiciled in Peru.
Taxation of the direct and indirect transfer of shares
The Income Tax Law (LIR) taxes capital gains derived from the transfer of shares and equity interests representing capital. Likewise, in the case of non-domiciled subjects, income obtained from the direct or indirect transfer of shares of companies domiciled in Peru is also considered Peruvian-source income.
In particular, the regulations provide that an indirect transfer exists when shares of a non-domiciled legal entity are transferred which, in turn, is the direct or indirect owner of shares of a Peruvian company, provided that the conditions established in subsection e) of article 10 of the LIR are met.
Concept of transfer
SUNAT recalls that article 5 of the LIR defines transfer as any act of disposition through which ownership is transferred for valuable consideration, including transactions such as sale, exchange, definitive assignment, contribution to companies, among others.
Likewise, it specifies that a transaction is for valuable consideration when there are reciprocal obligations or economic advantages assumed by the parties involved.
Therefore, for a taxable transfer to exist, a transfer of ownership for valuable consideration must be verified with respect to the shares involved.
¿Does the change in the place of effective management constitute a transfer?
No. SUNAT concludes that the mere change in the place of effective management of a non-domiciled holding company does not imply, for Income Tax purposes, a direct or indirect transfer of the shares of a legal entity domiciled in Peru.
This is because such change only entails a variation in the place where the management decisions of the holding company are made, without there being a transfer of ownership for valuable consideration over the shares of the Peruvian company. In addition, the case analyzed does not involve the liquidation or dissolution of the holding company or the incorporation of a new legal entity abroad.
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