We understand that SUNAT is prioritizing tax collection over fine collection. So far this year, it has issued four internal resolutions establishing the criteria to be borne in mind by SUNAT’s officers to exercise their discretionary power in applying sanctions and thus give taxpayers a chance to formalize their business activities instead of imposing higher costs with the voluntary fulfillment of their tax obligations.
With the last two resolutions issued by the Office of the Deputy Superintendent (RSNAO), Resolution No. 039-2016-SUNAT and Resolution No. 040-2016-SUNAT, published on August 18 and August 28, 2016, respectively, SUNAT decided to exercise its discretionary power to avoid imposing administrative sanctions in those cases where taxpayers have committed tax offenses related to the obligation to keep books and/or records, file tax returns, submit notices, allow the tax administration to exercise its control action, inform and appear before the tax administration, declare taxes and pay the taxes withheld, to the extent requirements and/or criteria expressly contemplated in each such resolutions are fulfilled.
It should be pointed out that SUNAT’s discretionary power not to sanction offenders will even apply to offenses committed or detected before the dates mentioned above, even though a fine resolution has not been issued or, if it has been issued, provided it has not been notified.
It is of utmost importance that all taxpayers be aware of the criteria and cases in which SUNAT will not apply sanctions, which depend on the circumstances or criteria expressly mentioned in the RSNAOs because, if the taxpayer pays the fine because of lack of knowledge, then the fine will not be refunded by SUNAT, nor will it be offset with other taxes.
Following are some of the offenses which may not be sanctioned by SUNAT:
- Failure to exhibit books, records or other documents that SUNAT may request or failure to appear before SUNAT or otherwise appear beyond the term established by SUNAT, in an inductive proceeding.
- Failure to exhibit books, records or other documents that SUNAT may request during the course of an audit if, prior to any notice thereof, the taxpayer reports the loss or destruction of its books, records or documents, categorically supporting said event or when it is the first time the taxpayer commits the offense and the offense is rectified within the term given by SUNAT.
- Failure to include revenue, income, remuneration, net worth, taxed transactions, taxes withheld or received, etc., in tax returns, when the tax omitted is equivalent to less than 5% of one Tax Reference Unit.