In accordance with subsection c) of article 32-A of the LIR, the value agreed upon by the parties shall only be adjusted when it determines a lower tax in the country than the one that would correspond to the application of the transfer pricing regulations. SUNAT may adjust the agreed value even when the above assumption is not met, if such adjustment affects the determination of a higher tax in the country with respect to transactions with other related parties.
In the same sense, it should be considered that “the adjustment of the value assigned by the Tax Administration, or the taxpayer is effective for both the transferor and the acquirer”.
The adjustment made will be allocated to the corresponding period in accordance with the imputation rules set forth in the LIR. However, if under these rules the adjustment cannot be allocated to a specific period because the necessary conditions for doing so cannot be met, the adjustment will be allocated proportionally to each period in which the income or expense of the agreed value is allocated.
In accordance with Article 109 of the LIR Regulations, for the purposes of applying the adjustments referred to in subsection c) of Article 32-A of the LIR, it shall be understood that they cause a lower determination of the tax, among others, the verification of the income deferral or the determination of greater tax losses than those that should have been declared.
4.1. Primary Adjustment
If an undue or excess payment arises because of the adjustment, it will be understood that such payment will become an undue or excess payment when the administrative resolution reflecting the adjustment becomes final or consented.
The results of the adjustment arising from the application of the transfer pricing rules shall not modify the taxable base of the payments on account payable by the taxpayer.
4.2. Secondary Adjustment
As a consequence of the adjustment resulting from the application of the transfer pricing standards, the dividends referred to in Article 24°-A of the Law will not be generated, except for the provisions of subsection g) of the same article, which establishes that "Any sum or payment-in-kind that results in third-category taxable income, provided that it means an indirect disposition of such income not subject to subsequent tax control, including the amounts charged to undeclared expenses and income.
4.3. Correlative Adjustment
Correlative adjustments shall be governed by the provisions set forth in the international agreements to avoid double taxation entered into by the Republic of Peru.
Any adjustment made by a foreign Tax Administration must be recorded in an administrative act that has become final.
Legal basis: Subsection c) of article 9° of the Regulations of the LIR, modified by article 2 of the Supreme Decree No. 006-2022, published on 1. 21.2022.