this decree will enter into force in 2024given that any modification to the Income Tax Law only begins to apply from the year following its publication.
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Changes in Presumptive Interest Calculations
The Income Tax Law assumes that when a person lends money to another, this loan is not free and carries interest. In this sense, if the parties do not agree on interest, the Sunat will act as if there were, applying standard reference rates for its calculation.
The new decree states that the reference rates to be used are: the average monthly market lending rate in national currency (TAMN) or the monthly average market lending rate in foreign currency (TAMEX), as appropriate.
Previously, the income tax law stated that for loans in foreign currency the Ibor should be used, but this has been modified and now the TAMEX will be used.
About, Alvaro Arbuluan EY partner, points out that This change is positive, since the Ibor has been falling out of use.
As he emphasizes Dante Sanguinettipartner of the PPU studio, Ibor is no longer being used because “it is said that it is not trustworthy and that it lends itself to manipulation”.
Adjustment factors are introduced
Likewise, the regulation published by the Executive has introduced an “adjustment factor” to the calculation of this presumed interest.
That is, the TAMN or the TAMEX will not be used by themselves, but rather, when applied, they will be multiplied by a figure issued by the Ministry of Economy and Finance (MEF).
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What is the practical effect?
In DL 1545 it is provided that the applicable adjustment factors for 2024 will be 0.42 for the TAMN and 0.65 for the TAMEX, respectively.
That is to say, if the TAMN today is 15.02%, it will not be presumed that the interest agreed by the people has a rate of 15.02%, but it will be multiplied by 0.42, therefore, the Sunat would assume that the interest agreed is of 6.3%.
In that sensethe rule benefits the taxpayerthen, with the factors introduced, will cause the amount of presumed interest to be reducedwhich has a direct impact on income tax, given that reduces the supposed profits obtained by people.
Jorge Picona partner in the Picón study, points out that this modification is positive since the TAMN is very high and “applying to a natural person what the bank charges was absurd”.
According to Sanguinetti, “The modification improves the presumption of interests between independents and a cap is placed on it with the adjustment factor“, hence it’s nothing to worry about.
Possible improvements
Picón points out, on the other hand, that he does not see the urgency of regulating this issue, since the collection of income tax for income generated as a result of loans between natural persons “cute in the irrelevant”.
For his part, Arbulú points out that the Executive it also had to remove the reference to the Ibor in other articles, such as the one that talks about withholding interest payments to people not domiciled in Peru.
“The subject dealt with by the Legislative Decree was not so urgent. More urgent is the retention made to non-residents, which is done month by month. Loans between natural persons are seen at the end of each year, in comparison”, he emphasizes.