Peru: new law for MSMEs frees funds from tax deduction accounts

Withholding tax accounts are special accounts regulated by Legislative Decree No. 940 and Legislative Decree No. 1110; they facilitate the payment of taxes for companies, since customers’ credits are directed to these funds. The amounts are deducted from the invoices issued to such customers.

Now, micro and small companies (mypes) have the option – when applicable – to freely dispose of the funds in their deduction accounts, thanks to Law 31903 enacted by the Congress of the Republic and published on October 21, 2023. This measure seeks to strengthen the financial health of micro, small, and medium enterprises (MSMEs) and contribute to their economic recovery by allowing the disposal of these funds beyond what has been usual and improving the SPOT (tax obligations payment system) processes.

Mypes, whether natural or legal persons, whose annual sales do not exceed the maximum limits established in the Sole Ordered Text of the Law for the Promotion of Productive Development and Business Growth, approved by Supreme Decree 013-2013-Produce, are eligible to implement the new regulations. To establish these annual sales parameters, total sales at the close of the fiscal year 2021 or the close of the fiscal year before the date of publication of the law for MSMEs registered as of 2022 will be considered.

The mypes that hold detraction accounts may require the release of the accumulated amounts under the following conditions:

1. The request is filed from the first day of the month following the publication of the law until the last day of the third month following such publication.

2. The request is made through Sunat Operaciones en Línea before the Superintendencia Nacional de Aduanas y de Administración Tributaria (Sunat).

3. The request includes the accumulated balance in the deduction account up to the date of the request and covers all the MSME’s deduction accounts, including the particular IVAP account.

4. The release of funds is not subject to any additional conditions except those established by law.

The drawdown funds can only be used to comply with tax obligations. The Sunat is authorized to transfer ex officio the funds in the drawdown accounts held by MSMEs for the payment of tax debts administered or collected by the entity. The provisions of Article 9.3 of the Sole Ordered Text of Legislative Decree 940 do not apply to the scope of this law, and the Sunat is prohibited from making transfers of funds that are not contemplated in the law.

In addition, a mode of automatic release of funds is established in which the Sunat, without requiring a request from the holder, proceeds to release funds from the accounts of the mypes in cases in which they have not been exhausted in the last three consecutive months. This mechanism requires that, on the date the request is submitted, there is no outstanding tax debt administered by Sunat, and deferral or installment payments that have not expired on the date the request is submitted are not considered outstanding debt.

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