Global forum on transparency and exchange of information for tax purposes peer reviews peru 2016 phase 1 legal and regulator

GLOBAL FORUM ON TRANSPARENCY AND EXCHANGE
OF INFORMATION FOR TAX PURPOSES

Peer Review Report
Phase 1
Legal and Regulatory Framework
PERU



Global Forum
on Transparency
and Exchange
of Information for Tax
Purposes Peer Reviews:
Peru 2016
PHASE 1: LEGAL AND REGULATORY FRAMEWORK

November 2016
(reflecting the legal and regulatory framework
as at August 2016)


This work is published on the responsibility of the Secretary-General of the OECD.
The opinions expressed and arguments employed herein do not necessarily reflect
the official views of the OECD or of the governments of its member countries or
those of the Global Forum on Transparency and Exchange of Information for Tax
Purposes.
This document and any map included herein are without prejudice to the status of
or sovereignty over any territory, to the delimitation of international frontiers and
boundaries and to the name of any territory, city or area.

Please cite this publication as:
OECD (2016), Global Forum on Transparency and Exchange of Information for Tax Purposes Peer
Reviews: Peru 2016: Phase 1: Legal and Regulatory Framework, OECD Publishing.
/>
ISBN 978-92-64-26574-5 (print)
ISBN 978-92-64-26575-2 (PDF)

Series: Global Forum on Transparency and Exchange of Information for Tax Purposes Peer Reviews
ISSN 2219-4681 (print)
ISSN 2219-469X (online)

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TABLE OF CONTENTS – 3

Table of Contents

About the Global Forum ����������������������������������������������������������������������������������������� 5
Abbreviations ����������������������������������������������������������������������������������������������������������� 7

Executive summary��������������������������������������������������������������������������������������������������� 9
Introduction������������������������������������������������������������������������������������������������������������� 13
Information and methodology used for the peer review of Peru ������������������������� 13
Overview of Peru ��������������������������������������������������������������������������������������������������14
Recent developments��������������������������������������������������������������������������������������������� 19
Compliance with the Standards����������������������������������������������������������������������������� 21
A. Availability of information������������������������������������������������������������������������������� 21
Overview��������������������������������������������������������������������������������������������������������������� 21
A.1. Ownership and identity information������������������������������������������������������������� 22
A.2. Accounting records��������������������������������������������������������������������������������������� 45
A.3. Banking information������������������������������������������������������������������������������������� 51
B. Access to information����������������������������������������������������������������������������������������� 53
Overview��������������������������������������������������������������������������������������������������������������� 53
B.1. Competent Authority’s ability to obtain and provide information ��������������� 54
B.2. Notification requirements and rights and safeguards����������������������������������� 65
C. Exchanging information����������������������������������������������������������������������������������� 67
Overview��������������������������������������������������������������������������������������������������������������� 67
C.1. Exchange-of-information mechanisms ��������������������������������������������������������� 68
C.2. Exchange-of-information mechanisms with all relevant partners ��������������� 76
C.3. Confidentiality����������������������������������������������������������������������������������������������� 77

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4 – TABLE OF CONTENTS
C.4. Rights and safeguards of taxpayers and third parties����������������������������������� 80
C.5. Timeliness of responses to requests for information������������������������������������� 82
Summary of determinations and factors underlying recommendations����������� 85
Annex 1: Jurisdiction’s response to the review report ��������������������������������������� 87
Annex 2: List of all exchange-of-information mechanisms in effect����������������� 88

Annex 3: List of all laws, regulations and other material received������������������� 89

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ABOUT THE GLOBAL FORUM – 5

About the Global Forum
The Global Forum on Transparency and Exchange of Information for
Tax Purposes is the multilateral framework within which work in the area
of tax transparency and exchange of information is carried out by over
130 jurisdictions, which participate in the Global Forum on an equal footing.
The Global Forum is charged with in-depth monitoring and peer
review of the implementation of the international standards of transparency and exchange of information for tax purposes. These standards are
primarily reflected in the 2002 OECD Model Agreement on Exchange of
Information on Tax Matters and its commentary, and in Article 26 of the
OECD Model Tax Convention on Income and on Capital and its commentary as updated in 2004. The standards have also been incorporated into
the UN Model Tax Convention.
The standards provide for international exchange on request of foreseeably relevant information for the administration or enforcement of the
domestic tax laws of a requesting party. Fishing expeditions are not authorised
but all foreseeably relevant information must be provided, including bank
information and information held by fiduciaries, regardless of the existence
of a domestic tax interest or the application of a dual criminality standard.
All members of the Global Forum, as well as jurisdictions identified by
the Global Forum as relevant to its work, are being reviewed. This process is
undertaken in two phases. Phase 1 reviews assess the quality of a jurisdiction’s legal and regulatory framework for the exchange of information, while
Phase 2 reviews look at the practical implementation of that framework. Some
Global Forum members are undergoing combined – Phase 1 and Phase 2 –
reviews. The Global Forum has also put in place a process for supplementary
reports to follow-up on recommendations, as well as for the ongoing monitoring of jurisdictions following the conclusion of a review. The ultimate goal is

to help jurisdictions to effectively implement the international standards of
transparency and exchange of information for tax purposes.
All review reports are published once approved by the Global Forum
and they thus represent agreed Global Forum reports.
For more information on the work of the Global Forum on Transparency
and Exchange of Information for Tax Purposes, and for copies of the published review reports, please refer to www.oecd.org/tax/transparency and
www.eoi-tax.org.

PEER REVIEW REPORT – PHASE 1: LEGAL AND REGULATORY FRAMEWORK – PERU © OECD 2016



Abbreviations – 7

Abbreviations
AML

Anti-Money laundering

BVL

Bolsa de Valores de Lima

CDD

Customer due diligence

CTF

Counter Terrorism Financing

DTC

Double Tax Conventions

EOI

Exchange of information

FATF

Financial Action Task Force

IBC

International Business Company

OECD

Organisation for Economic Co-operation and
Development

OSCE

Organismo Supervisor de las Contrataciones del Estado
(SupervisoryAgency of the Government Procurement
Office)

RUC

Registro unico de contribuyentes (Single Register of
Taxpayers)

RNP

Registro Nacional del Proveedores del Estado (National
Register of Government Providers)

SBS

Superintendencia de Banca, Seguros y AFP
(Superintendence of Banking, Insurance and Private
Pension Funds Administrators.)

SMV

Superintendencia de Mercado de Valores (Securities
Market Superintendence)

SUNARP

Superintendencia Nacional de Registros Públicos
(Superintendence of Public Registries in Peru)

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8 – Abbreviations
SUNAT

Superintendencia Nacional de Aduanas y de
Administración Tributaria (National Superintendence of
Customs and Tax Administration)

TIEA

Tax Information Exchange Agreement

UIF

Unidad de Inteligencia Financiera (Financial Intelligence
Unit)

UIT

Unidad Impositiva Tributaria (Tax Imposition Unit)

VAT

Value Added Tax

PEER REVIEW REPORT – PHASE 1: LEGAL AND REGULATORY FRAMEWORK – PERU © OECD 2016


Executive summary– 9

Executive summary
1.
This report summarises the legal and regulatory framework for
transparency and exchange of information in Peru. The international standard, which is set out in the Global Forum’s Terms of Reference to Monitor

and Review Progress Towards Transparency and Exchange of Information is
concerned with the availability of relevant information within a jurisdiction,
the competent authority’s ability to gain timely access to that information,
and, in turn, whether that information can be effectively exchanged with its
exchange of information (EOI) partners.
2.
Peru is a country of 31.2 million inhabitants covering 1 285 216 square
kilometres in western South America. Peru’s GDP amounted to approximately USD 192 billion in 2015. Over the past decade, Peru has been one of
the region’s fastest-growing economies, with an average growth rate of 5.9%.
Peru is rich in natural resources, its main exports including metals and minerals, such as copper, gold, zinc and silver.
3.
Relevant legal entities in Peru include domestic companies (joint
stock companies and capital limited liability companies), foreign companies
(branches and permanent establishments), domestic partnerships (general and
limited liability partnerships), fideicomisos and foundations. Obligations to
ensure the availability of ownership and identity information exist for all of
the above named entities either under the Commercial Code, the Companies
Law, tax law, or the regulatory acts of the financial and security market regulators. As such, Element A.1 was found to be in place.
4.
Accounting requirements in line with the standard applicable to all
relevant entities are set out under Peruvian tax and commercial law. Book and
records must be kept for a minimum of five years under the Tax Code and up
to five years after the liquidation of a business under the Commercial Code.
The Tax Code further requires that entities maintain underlying documentation in line with the standard. Accordingly, Element A.2 was found to be in
place.
5.
Pursuant to the Law on the Financial System, banks and other financial institutions have to comply with detailed know-your-customer obligations

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10 – Executive summary
and must keep all records pertaining to account holders, as well as related
financial and transaction information, for at least ten years. Element A.3 was
therefore found to be in place.
6.
The competent authority under Peru’s TIEAs is the Superintendent
of the National Superintendence of Customs and Tax Administration
(Superintendencia Nacional de Aduanas y de Administración Tributaria)
(SUNAT). In the case of its DTCs and the Andean Community Directive 1,
the competent authority for EOI purposes is the Minister of the Economy
and Finance, who delegates this role to his authorised representative, the
Superintendent of the SUNAT.
7.
The SUNAT has significant information resources at its disposal,
including ownership, identity, and accounting information. Further, the
SUNAT has broad access powers under the Tax Code to obtain all types
of ownership, accounting and banking information not already in its own
databases. In order to obtain “passive” banking transaction information (information related to the bank holder’s bank account (such as, savings accounts,
checking accounts, deposits, bank certificates, etc.), the SUNAT is required
to obtain a court order to access this information directly from the bank.
Generally, the whole process to obtain the court order and access the banking
information takes between 10 and 15 days. In regards to secrecy provisions,
it is noted that while attorney-client privilege out in Peru’s domestic legislation is found to be in line with the standard, the extent of secrecy provisions
as they apply to other professions may impede the access to information. A
recommendation for Peru to clarify the extent of professional secrecy as it
relates to other professions has been made As a result, element B.1 was found
to be in place.
8.
The application of rights and safeguards in Peru does not restrict the

scope of information that the SUNAT can obtain, and there are no notification procedures in Peru. Therefore, Element B.2 was found to be in place.
9.
Peru’s network of 11 EOI mechanisms is comprised of 3 TIEAs,
7 bilateral DTCs and one multilateral Directive. All of these agreements are
in force and meet the internationally agreed standard containing sufficient
1.

The Andean Community (Comunidad Andina) is a customs union operating as
a free trade area between its members with a common external tariff. The union
comprises the South American countries of the Plurinational State of Bolivia
(Bolivia), Colombia, Ecuador, and Peru. The union was called the Andean Pact
until 1996 and came into existence with the signing of the Cartagena Agreement
in 1969. Andean Community Decision 578, from herein referred to as the Andean
Community Directive, facilitates the exchange of information in tax matters
between members of the Andean Community.

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Executive summary– 11

provisions to enable Peru to exchange all relevant information with all of its
treaty partners. As a result, Element C.1 was found to be in place.
10.
Peru’s network of exchange agreements covers 12 treaty partners. Peru
continues to expand its treaty network and is currently finalising all internal
procedures to join the multilateral Convention on Mutual Administrative
Assistance in Tax Matters, as amended (here on referred to as Multilateral
Convention) which it hopes to sign in early 2017. Comments were sought
from Global Forum members in the course of the preparation of this

report and in no case has Peru refused to enter into an EOI agreement.
Consequently, element C.2 was found to be in place.
11.
All EOI articles in Peru’s exchange agreements contain confidentiality provisions that meet the international standard and its domestic legislation
also contains appropriate confidentiality provisions and enforcement measures. Consequently, element C.3 was found to be in place.
12.
Peru’s exchange agreements protect rights and safeguards in accordance with the standard by ensuring that the parties are not obliged to provide
information that would disclose any trade, business, industrial, commercial or
professional secret or information the disclosure of which would be contrary
to public policy. Most of these rights and safeguards are also explicitly provided for under domestic law. Element C.4 was found to be in place.
13.
Peru’s response to the recommendations in this report, as well as the
application of the legal framework to the practices of its competent authority
will be considered in the course of its exchange of information on request
(EOIR) review under the second round of reviews which is scheduled for the
second half of 2018.

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Introduction – 13

Introduction

Information and methodology used for the peer review of Peru
14.
The assessment of the legal and regulatory framework of Peru
was based on the international standards for transparency and exchange of
information as described in the Global Forum’s Terms of Reference, and

was prepared using the Global Forum’s Methodology for Peer Reviews and
Non-Member Reviews. The assessment was based on the laws, regulations,
and exchange-of-information mechanisms in force or effect as of 17 August
2016, other materials supplied by Peru, and information supplied by partner
jurisdictions.
15.
The Terms of Reference break down the standards of transparency
and exchange of information into 10 essential elements and 31 enumerated
aspects under three broad categories: (A) availability of information; (B)
access to information; and (C) exchanging information. This review assesses
Peru’s legal and regulatory framework against these elements and each of the
enumerated aspects. In respect of each essential element, a determination
is made that either (i) the element is in place, (ii) the element is in place but
certain aspects of the legal implementation of the element need improvement,
or (iii) the element is not in place. These determinations are accompanied by
recommendations on how certain aspects of the system could be strengthened
(see Summary of determinations and factors underlying recommendations at
the end of this report).
16.
The assessment was conducted by a team which consisted of two
assessors and representatives of the Global Forum Secretariat: Mr. Guillermo
Nieves, Tax Advisor, Uruguay; Ms. Virginia Tarris, Tax Law Specialist,
Office of Assistant Deputy Commissioner (International), Internal Revenue
Service, United States; and Ms. Mary O’Leary and Ms. Kathleen Kao of the
Global Forum Secretariat. The assessment team examined the legal and regulatory framework for transparency and exchange of information and relevant
exchange-of-information mechanisms in Peru.

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14 – Introduction

Overview of Peru
17.
Peru is an upper middle income country of 1 285 216 square kilometres located in western South America. It is bordered on the west by the
South Pacific Ocean, on the north by Ecuador and Colombia, on the south by
Chile, and on the east by Bolivia and Brazil. Peru has approximately 31.2 million inhabitants (2015 estimate), 9.8 million of which reside in Lima, the
capital. 2 The main official languages in Peru are Spanish (84.1%), Quechua
(13%) and Aymara (1.7%). 3 Its currency is the sol (PEN), with USD 1 equal
to PEN 3.29. 4

Governance and legal system
18.
The Peruvian legal system is a civil law one. The Peruvian
Constitution of 1993 is Peru’s twelfth Constitution and replaced the earlier
1979 Constitution. The Constitution is the supreme law of the country, followed by ordinary laws. International treaties (other than human rights
treaties, which are on equal standing as the Constitution) have the same status
as ordinary laws.
19.
Peru is a unitary, representative and decentralised republic. In 2002,
a constitutional reform declared decentralisation to be a “permanent policy of
the state” 5. Since then, a gradual transfer of responsibilities from the central
to regional governments has taken place and decentralisation has become one
of the bedrock principles upon which Peru’s system of governance is based.
The levels of government are national, regional and local. Peru is divided into
25 regions, which are further divided into provinces. Provinces are composed
of districts. The province of Lima does not form part of any region.
20.
Peru’s government is organised according to the principle of separation of powers and is separated into three branches: the executive, the
legislative and the judiciary. The Executive Branch consists of the President

and two Vice Presidents. As the head of the executive branch, the President
serves as both Head of State and Head of Government. The administration
and management of public services is entrusted to the Council of Ministers
(the President’s cabinet), which consists of a prime minister and specific
ministers responsible for different areas (such as education, defence, finance
2.
3.
4.
5.

According to the Peruvian National Institute of Statistics and Information (INEI)
based on the 2007 census.
/>According to on 16 August 2016.
Republic of Peru: Country Administration Profile (United Nations, March 2005)
(at />
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Introduction – 15

etc.). The President is elected every five years by popular vote and cannot be
re-elected for consecutive terms.
21.
Regional and local governments are also popularly elected and have
political and administrative autonomy. Regional governments are composed
of Regional Presidents, Regional Vice Presidents, Regional Councils, and
Regional Coordinating Councils. The functions of the Regional President
include proposing and enforcing the budget, appointing government officials, issuing regional decrees and regional resolutions, executing regional
plans and programme, and administering regional properties and rents.
The Regional Council debates and votes on bills proposed by the Regional

President and council members. It also oversees all regional officials and can
remove the Regional President, its Vice President and any council member
from office. Regional Presidents and Regional Vice Presidents are elected
for four-year terms and, pursuant to a recent amendment to the Constitution,
cannot serve consecutive terms.
22.
Legislative power is vested in both the executive branch and
Congress. The Legislature is a unicameral congress with 130 seats. Members
are elected based on proportional representation to serve five-year terms. In
addition to passing laws, Congress ratifies treaties, authorises government
loans (empréstitos), and approves the government budget. Congress legislates by passing laws and legislative resolutions, while the President does so
through legislative decrees when Congress has delegated such power to him/
her. The President may also issue regulations implementing any law passed
by Congress or urgent decrees concerning economic and financial matters.
Such decrees will have the force of law. To pass Congress, a bill must have
a majority vote. Once finalised and passed by Congress, bills are sent to the
President for approval. The President has 15 days to send any comments
or objections to Congress, in the absence of which the bill will be deemed
approved and subsequently promulgated.
23.
The Peruvian judiciary is the branch of government that interprets
and applies the laws of Peru. Peru’s judicial system is structured hierarchically with the Supreme Court as the court of highest judicial instance.
The Supreme Court consists of 20 judges and is divided into a Criminal
Chamber, a Civil Chamber, a Constitutional and Social Law Chamber, and
four corresponding transitional chambersestablished to assist with the case
load of the other chambers. Below the Supreme Court are 33 superior courts
(appellate courts), which have jurisdiction over judicial districts, in line with
the country’s regional division and are located in the districts’ capital cities.
Below the superior courts are 211 courts of first instance (trial courts), which
have jurisdiction over the individual provinces. The fourth and lowest level

of the judiciary is composed of 623 courts of peace, each with jurisdiction
over a single district and hearing cases of low economic value or pertaining

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16 – Introduction
to minor issues. Peru also has a Constitutional Court, or Constitutional
Tribunal, which is tasked with safeguarding constitutional principles and has
the power to repeal all or portions of the unconstitutional laws and acts.
24.
Peru is also a member of the Andean Community (Comunidad
Andina), a customs union, or trade bloc, along with Bolivia, Colombia, and
Ecuador, with the aim of promoting greater economic integration among its
members. The union came into existence with the signing of the Cartagena
Agreement in 1969 and was called the Andean Pact until 1996. The Andean
Community may legislate on specific matters that are directly applicable in
Peru without the approval of Congress.
25.
Further, according to Article 3 of the Tratado de Creación del
Tribunal de Justicia del Acuerdo de Cartagena (Treaty creating the Court of
Justice of the Cartagena Agreement), directives of the Andean Community,
once published in the official gazette of the Cartagena Agreement, are directly
applicable in Peru without being ratified by Congress. Article 5 sets out that
member countries of the Andean Community must refrain from adopting any
measures contrary to the provisions of these directives or that would restrict
their application. Therefore, in the event of a conflict with an ordinary law, a
directive of the Andean Community will take precedence in Peru.

The Peruvian economy

26.
In the last ten years, Peru has been recognised as one of Latin
America’s fastest growing economies. The Peruvian economy grew by an
average of 5.9% from 2006-15 6 with a stable exchange rate and low inflation, which was due partly to high international prices for Peru’s metals
and minerals exports, which account for almost 60% of the country’s total
exports. Growth slipped in 2014 and 2015, due to weaker world prices for
these resources.
27.
In 2015, the GDP per capita was USD12 402, having risen steadily
over the last ten years 7. The GDP composition by sector is 0.4% fishing, 1.8%
electricity and water, 5.3% agriculture, 6.2% construction, 11.2% commerce,
12.4% mining, 13.5% industry and 49% services 8.A wide range of important
mineral resources are found in the mountainous and coastal areas, and Peru’s
coastal waters provide excellent fishing grounds. Peru is the world’s second
largest producer of silver and third largest producer of copper. Its main
imports consist of crude oil, petroleum and wheat and its main exports are
copper, gold, zinc, fish meal and silver.
6.
7.
8.

www.worldbank.org/en/country/peru/overview.
/>www.bcrp.gob.pe/estadisticas/cuadros-anuales-historicos.html.

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Introduction – 17

28.

Peru has a strong free trade policy in place and since 2006 Peru
has signed trade deals with the Canada, Chile, People’s Republic of China
(China), Costa Rica, the European Free Trade Association, the European
Union, Japan, Mexico, Panama, Singapore, South Korea, Thailand, and
United States, Bolivarian Republic of Venezuela (Venezuela); concluded
negotiations with Guatemala, Honduras, and the Trans-Pacific Partnership;
and begun trade talks with El Salvador, India, and Turkey. Peru also has
signed a trade pact with Chile, Colombia, and Mexico, called the Pacific
Alliance, that seeks integration of services, capital, investment and movement
of people. Since the United States-Peru Trade Promotion Agreement entered
into force in February 2009, total trade between Peru and the United States
has grown by 40%.
29.
Peru is a member of the Andean Community, the Inter-American
Development Bank (IDB), the International Monetary Fund (IMF), the Latin
American Integration Association (LAIA), the Organisation of American
States (OAS), the United Nations (UN) and the World Trade Organization
(WTO), amongst others. Peru has been a member of the Global Forum on
Transparency and Exchange of Information for Tax Purposes since 2014.

Overview of the financial sector
30.
The financial sector in Peru comprises commercial banks, insurance companies, municipal savings and loans banks, municipal loans banks,
development entities for small and micro businesses, savings and loans
associations authorised to receive deposits from the public, and rural savings
and loans banks, financial companies, and other financial institutions. The
banking sector is comprised of 58 banks and as of September 2016, the total
assets in the banking sector amounted to approximately USD 431 589 billion.
31.
The Peruvian Superintendencia de Banca, Seguros y AFP (SBS)

(Superintendence of Banking, Insurance and Private Pension Funds
Administrators) is the “watchdog” of the national financial system. The SBS
is a constitutionally autonomous institution with legal personality under
public law. It is the regulatory body responsible for supervising companies
operating in the Peruvian financial and insurance sectors. Law No. 26702,
Ley General del Sistema Financiero y del Sistema de Seguros y Organica
de la Superintendencia de Banca y Seguros (Law of the Financial System)
establishes the framework for the regulation and supervision of companies
operating in the financial and insurance sectors. Since July 2000, the SBS
also has been responsible for supervising private pension funds, a role that
was previously performed by a separate superintendent that was subsumed
into the SBS pursuant to Law 27328,

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18 – Introduction
32.
The Peruvian securities exchange is the Bolsa de Valores de Lima
(BVL) with an annual turnover of approximately USD 3 516 million.
Twenty-five brokerage companies currently participate in the exchange.
The BVL is governed by the Legislative Decree No. 861, Ley del Mercado
de Valores (Securities Market Law), which regulates all matters relating to
public offerings of securities, investment funds, and other participants in the
stock market. The body responsible for the supervision and enforcement of
the Securities Market Law is the Superintendencia del Mercado de Valores
(SMV) (Securities Market Superintendence).

Taxation
33.

Peru taxes its residents (companies and individuals) on their worldwide income. Non-resident companies and individuals are taxed only on
Peruvian-sourced income. The following legal entities are considered resident
in Peru for income tax purposes: (i) companies that are incorporated in Peru
and (ii) permanent establishments in Peru of individuals or companies not
domiciled in the country (article 7 Income Tax Law). Permanent establishments and branches of foreign companies are taxed on their Peruvian-sourced
income.
34.
The Tax Code, which set out the general tax principles, the rules for
the administration of taxes, penalties, procedures and collections, governs
all taxes in Peru. The imposition of income tax is governed by the Income
Tax Law. The national tax administration Superintendencia Nacional de
Aduanas y de Administración Tributaria (SUNAT) is an independent government agency responsible for revenue collection on behalf of the Government
of Peru. The fiscal year runs from 1 January through 31 December, without
any exceptions. The tax returns for the accrued income generated during the
fiscal year must be filed during the first three months of the subsequent year.
35.
Peru imposes a range of taxes which are collected at the national
level by SUNAT, the main ones being income tax, a value added tax, and a
financial transactions tax. The SUNAT also collects contributions to Social
Health Insurance (Essalud, equivalent to social security) and the National
Pension Office (ONP).
36.
Law 30296, published on 31 December 2014 gradually reduces
the corporate income tax rate in stages from 30% in 2014 to 26% in 2019.
Generally, a 30% withholding rate on income is levied on non-residents.
However, some business activities are subject to other tax withholding rates.
For example, dividends and other forms of profit distributions are subject
to withholding tax at a rate gradually increasing from 4.1% in 2014 to 9.3%
in 2019. Interest from Peruvian-sourced income paid to non-residents is
subject to a 4.99% tax, but only if the debt meets certain conditions. Where

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Introduction – 19

the conditions are not met, the interest will be subject to the 30% withholding rate. Income from the sale of securities made through a Peruvian stock
exchange is subject to a withholding tax of 5%, although from 2016-2018,
income from sales of securities are tax exempt under certain conditions.
37.
In regards to capital gains tax, in the case of individuals, Peru only
taxes the capital gains derived from the sale of real estate and securities at a
rate of 5%. The income tax is payable annually in the case of income from
the sale of securities and immediately in the case of income from the sale of
real state. Income generated by the lease of movable goods and immovable
goods (i.e. real estate) is subject to a 5% tax which is realised on an annual
basis. In regards to capital gains tax for companies, the income generated by
the lease or transfer of movable goods and immovable goods is subject to a
28% tax which is payable on an annual basis. These taxes are applicable only
to companies and individuals who are resident in Peru.

Recent developments
38.
On 18 July 2016, Peru passed Resolution 3880-2016/SBS amending
Resolution 1132-2015/SBS concerning the information that must be set out
in a request for banking information that is submitted by certain Peruvian
authorities to financial institutions. The name of the bank account holder is
no longer required; in cases where only a bank account number is submitted,
banking information can still be provided. Whilst previously, where a request
concerned a foreign resident, a proof of identity document was required, such

document is now only required if it is available. These resolutions are not
applicable to the SUNAT and therefore in all cases where banking information is required for tax purposes it can be accessed without the name of the
bank account holder. However, these requirements were amended in order to
ensure a coherent process for all authorities when accessing banking information from financial institutions in Peru.
39.
On 24 July 2016, Peru published Resolution 177-2016/SUNAT and
Resolution 178-2016/SUNAT. Resolution 177-2016/SUNAT establishes an
obligation to a trustee domiciled in Peru, to file an informative return regarding a trust created under a foreign law. Resolution 178-2016/SUNAT requires
that branches, permanent establishments or representative offices of nondomiciled legal persons or entities that register before SUNAT (in order to
obtain their tax identification number (RUC No.)) must provide information
regarding partners and members of non-domiciled legal persons or entities. In
the case of changes to this information, both resolutions establish the obligation to update this information with the SUNAT.

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Compliance with the Standards: Availability of information – 21

Compliance with the Standards

A. Availability of information

Overview
40.
Effective exchange of information (EOI) requires the availability
of reliable information. In particular, it requires information on the identity
of owners and other stakeholders as well as information on the transactions
carried out by entities and other organisational structures. Such information
may be kept for tax, regulatory, commercial or other reasons. If the information is not kept or maintained for a reasonable period of time, a jurisdiction’s

competent authority may not be able to obtain and provide it when requested.
This section of the report assesses the adequacy of Peru’s legal and regulatory
framework on the availability of information.
41.
In respect of ownership and identity information, Peruvian legislation (namely, the Tax Code and the Companies Law) imposes comprehensive
obligations on domestic companies and partnerships to ensure that information is available either in the hands of a public authority or with the entity
itself (in its articles of incorporation or shareholder register). These obligations are complemented by the Anti-Money laundering (AML) legislation
and rules concerning regulated activities that apply to obliged entities and
financial institutions. These obligations are accompanied by penalties for
non-compliance. Pursuant to a resolution issued by the Peruvian tax authority in July 2016, foreign companies and partnerships are also now required
to provide ownership information upon registration with the SUNAT. Since
1968, Peruvian law has prohibited the issuance of bearer shares and the concept of nominee ownership is not recognised.

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22 – Compliance with the Standards: Availability of information
42.
Peruvian law does not recognise trusts as defined under common
law; rather it allows for fideicomisos, or fiduciary arrangements akin to
trusts. As only financial entities can administer or manage a fideicomiso,
they will come under the provisions of the AML law whereby all financial
entities are obliged to identify their clients and maintain updated information for a minimum period of ten years from the conclusion of a transaction
or relationship. Trustees of fideicomisos are required to maintain updated
identity information on fideicomitentes and fideicomisarios pursuant to AML
rules and regulations. Likewise, Peruvian residents acting as trustees of foreign law trusts or of foreign trusts investing in Peru, are required to submit
to the SUNAT information on the settlors and beneficiaries. The concept of
a private foundation does not exist under the laws of Peru as all Peruvian
foundations have public and non-profit status. Nonetheless, legal provisions
exist to identify all parties to a foundation.

43.
Foreign companies having a sufficient nexus to Peru and branches
of foreign companies established in Peru are considered resident for tax purposes and therefore must register and file annual returns containing updated
ownership information with the SUNAT. Accordingly, element A.1 was found
to be in place.
44.
Under the Tax Code, all relevant entities must keep reliable accounting records, including underlying documentation, for a minimum of five
years. Further, accounting requirements in the Commercial Code also require
books and records to be kept for up to five years after liquidation of a business. Element A.2 was thus found to be in place.
45.
Pursuant to the Law on the Financial System, banks and other financial institutions have to comply with detailed know-your-customer obligations
and must keep all records pertaining to account holders, as well as related
financial and transaction information, for at least ten years. Element A.3 was
therefore found to be in place.

A.1. Ownership and identity information
Jurisdictions should ensure that ownership and identity information for all relevant
entities and arrangements is available to their competent authorities.

46.
The relevant entities and arrangements in Peru are companies
(ToR A.1.1), partnerships (ToR A.1.3), trusts (ToR A.1.4), and foundations
(ToR A.1.5). Bearer shares (ToR A.1.2) have been abolished since 1968 and
no bearer shares currently exist in Peru. This section also examines enforcement measures in place to ensure compliance with laws on the maintenance
of ownership and identity information of relevant entities.

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Compliance with the Standards: Availability of information – 23

Companies (ToR A.1.1)
47.
In Peru, companies (or societies) are created pursuant to Ley General
de Sociedades No. 26887 (Companies Law). The Companies Law provides
for two types of companies: Joint Stick Companies and Capital Limited
Liability Companies.
•

Joint Stock Company: The company law provides for three different
types of joint stock company:
1. The Sociedad Anónima (S.A.) (general joint stock company)
is the most common type of company in Peru. In a joint stock
company, the company’s capital is divided into nominative shares
represented by negotiable share certificates. Shareholders can
be either entities or individuals and at least two shareholders
are required for incorporation. Shareholders are not personally
liable for the company’s obligations. As of June 2016, there were
591 287 SAs registered with the SUNARP of which, 481 132
are registered for tax with the SUNAT. The difference for the
number of entities registered with the SUNARP and the SUNAT
is attributable to two factors. First, many entities that initially
register with the SUNARP do not proceed to carry on any economic activity and therefore do not proceed to register with the
SUNAT. Second, authorities have confirmed that the SUNARP
records keep historical information which corresponds to an
older period than the record information managed by SUNAT
and therefore contains more entities. Nevertheless, this issue
shall be followed up in the next EOIR review of Peru.
2. A joint stock company may also take the form of a closed corporation (Sociedad Anónima Cerrada) (S.A.C.). A closed corporation
cannot have more than 20 shareholders and its shares cannot be

registered in the Public Registry of the Securities Market.
3. A joint stock company may also take the form of a public joint
stock company (Sociedad Anónima Abierta (S.A.A.) when it
meets one or more of the following conditions: (i) it has made a
primary public offering either of shares or obligations convertible into shares; (ii) it has more than 750 shareholders; (iii) more
than 35% of its capital belongs to 175 or more shareholders; (iv) it
is constituted as such in the articles of incorporation; or (v) all
voting shareholders unanimously approve the adjustment to that
scheme (art. 249 Companies Law). The shares of a public company are listed on the Lima Stock Exchange and thus must be
registered in the Public Registry of the Securities Market.

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