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June 13, 2023
2023-1051

Peruvian Supreme Court enacts a mandatory ruling regarding Certificates of Residence for Double Tax Treaty purposes

On 2 June 2023, the Peruvian Supreme Court of Justice enacted Court Ruling 8380–2021-LIMA, which is mandatory caselaw, establishing that noncompliance with domestic requirements for certificates of residence should not prevent the application of the benefits of Double Tax Treaties (DTT) subscribed by Peru.

Background

According to Supreme Decree 090-2008, for purposes of Double Tax Treaties benefits, nonresidents must deliver to the withholding agent (Peruvian entity) a residence certificate with the following requirements:

  • The certificate must be valid for a period of four months from the date of issuance.
  • The certificate must prove the residence of the nonresident at the time of the withholding (i.e., the residence certificate must be issued prior to the payment).

In the absence of a certificate of residence that meets the above requirements, the withholding agent must perform the withholding without taking into account the reduced withholding or the benefits granted by the Double Tax Treaty.

Court Ruling 8380–2021

On 9 June 2023, the Supreme Court enacted Court Ruling 8380–2021, analyzing the case of the Peru-Brazil Double Tax Treaty and the certificate of residence.

The Court concluded that noncompliance with domestic requirements for certificates of residence (e.g., having the certificate of residence issued prior to the payment) should not prevent the benefits of the Peru-Brazil Double Tax Treaty from applying, as long as this requirement is not included in the Double Tax Treaty.

Although the ruling analyzes a case under the Peru-Brazil Double Tax Treaty, the criterion may also be applicable to other Double Tax Treaties subscribed by Peru.

The Court's decision could be useful in a refund claim if the resident payor has performed a withholding without taking into account the reduced withholding or the benefits granted by the Double Tax Treaty and the certificate of residence does not comply with the requirements established by the domestic law.

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For additional information with respect to this Alert, please contact the following:

Ernst & Young Asesores Empresariales S.C.R.L, Lima

Ernst & Young LLP (United States), Latin American Business Center, New York

Ernst & Young LLP (United Kingdom), Latin American Business Center, London

Ernst & Young Tax Co., Latin American Business Center, Japan & Asia Pacific

Published by NTD’s Tax Technical Knowledge Services group; Carolyn Wright, legal editor

 

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