The Tax Court lists requirements that payments to foreign entities must meet to be considered payments for digital services.
In Resolution 07792-3-2020 (published 25 February 2022), the Peruvian Tax Court addressed how to determine whether a payment to a foreign entity qualifies as a payment for digital services and is, therefore, subject to a 30% withholding tax in Peru.
Background
A Peruvian entity entered into a contract with a foreign entity for consulting services that included technical support for data processing software, finance, marketing, consulting global facilities (i.e., advisory services), human resources and administration. The services were performed remotely via phone calls or videoconferences, but the foreign entity could conduct the services without using digital technology.
The Peruvian tax authority determined that the services provided by the foreign entity were digital services because there were telephone calls, videoconferences and the use of the internet to perform the services.
Resolution 07792-3-2020
The Peruvian Tax Court concluded that the Peruvian tax authority did not analyze whether the services qualified as digital services by considering the circumstances under which the services were provided or the characteristics of the services. The Tax Court observed that not all services rendered via the internet are digital services for tax purposes.
To determine if a payment to a foreign entity qualifies as a payment for digital services, the Tax Court ruled that the following requirements established by the law must be concurrently met:
The service must not be rendered in a specific physical location and delivered to the user via electronic or digital accesses.
The service must be provided through the internet, any technology used by the internet or any other network through which equivalent services are provided.
The service must be available to the user through online accesses.
The service must be automatic (no human intervention).
The service must not be feasible in the absence of information technology.
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.
