The legislative decree modifies the tax treatment of silent partnerships. Specifically, the legislative decree establishes that income distributed to the silent partner will be considered dividends and dividends distributed to nonresident silent partners will be considered Peruvian-source income, subject to 5% withholding.
On 26 March 2022, Peru’s President enacted Legislative Decree 1541, amending the Income Tax Law to modify the silent partnership rules.
Background
On 2 April 2021, the Peruvian Tax Court published, in the Official Gazette, Resolution 02398-11-2021, which established that income distributed to a silent partner should be treated as dividends. The Resolution is mandatory, which means the Peruvian tax authority must follow it. For information on this issue, see EY Global Tax Alert, Peruvian Tax Court concludes income received by a silent partner in a silent partnership will be treated as dividends, dated 7 April 2021.
On 27 October 2021, Peru’s President asked Congress for the power to enact tax measures. On 27 December 2021, the Congress approved the President’s request to enact different tax measures, including modifications to the silent partnership rules. For information on the approval of the President’s request to enact certain tax measures, see EY Global Tax Alert, Peru enacts law allowing the President to enact various tax measures, dated 4 January 2022.
Legislative Decree 1541
Legislative Decree 1541 establishes the following tax treatment for silent partnerships:
- Income distributed to the silent partner will be deemed as dividends for the silent partner.
- Dividends distributed to a nonresident silent partner will be considered Peruvian-source income subject to 5% withholding.
- For distributions of dividends in kind, the active partner will consider as profit or loss the difference resulting from subtracting the tax basis from the fair market value of the asset/good distributed to the silent partner.
- Payments made by the active partner to the silent partner are not deductible for corporate tax purposes by the active partner.
The Resolution is effective 1 January 2023.
For additional information with respect to this Alert, please contact the following:
Ernst & Young Asesores S.C.R.L, Lima
- Roberto Cores
- Ramón Bueno-Tizón
- Ingrid Zevallos
Ernst & Young LLP (United States), Latin American Business Center, New York
- Lucas Moreno
- Ana Mingramm
- Pablo Wejcman
- Enrique Perez Grovas
Ernst & Young Abogados, Latin America Business Center, Madrid
- Jaime Vargas
Ernst & Young LLP (United Kingdom), Latin American Business Center, London
- Lourdes Libreros
Ernst & Young Tax Co., Latin American Business Center, Japan & Asia Pacific
- Raul Moreno, Tokyo
- Luis Coronado, Singapore
For a full listing of contacts and email addresses, please click on the Tax News Update: Global Edition (GTNU) version of this Alert.
