- Estudio Alvarez Calderón
Extinction of companies due to prolonged inactivity.
On September 16, 2018, Legislative Decree No. 1427 was published in the official newspaper El Peruano that regulates the extinction of companies due to prolonged inactivity. Its Regulation was approved by Supreme Decree 219-2019-EF (published on July 15, 2019). The purpose of this regulation is to contribute to the prevention of tax fraud and economic crimes; as well as debug, update and order the information provided by the Registry of Legal Persons of the National Superintendence of Public Registries regarding registered companies. The regulation defines the concept of prolonged inactivity as “the legal situation in which the none performance of business and economic activity linked to the corporate purpose or purposes of the company concur, as well as the lack of registration of corporate acts” The standard incorporates the concept of preventive annotation for alleged prolonged inactivity and defines it as: “..A provisional and transitory registration that allows the publicity and reporting of the alleged inactivity of the company, based on the lack of registration, for a prolonged period, of corporate acts in the register of Legal Persons of the SUNARP; as well as the none registration in the RUC or, in the case of being registered in said registry, the none presentation of determinative or informative affidavits before the SUNAT, neither the existence of pending tax debt nor the existence of inspection procedures, claim, appeal, contentious administrative claim, amparo appeal or other referred to the current tax debt.
The SUNARP ex officio extends the preventive annotation for alleged prolonged inactivity in the registry entries of the companies: i) that they have not registered any corporate act within ten (10) years ii) that they have not registered in the RUC or that, iii) being registered in the RUC, have not submitted determinative statements to the SUNAT within six (6) years or iv) in the case of withholding agents or collection of taxes within ten (10) years, or in the case of informative returns within four (4) years, nor did they have outstanding tax debt or procedures for inspection, claim, appeal, contentious administrative claim, amparo or other referred to the current tax debt. For this purpose, SUNARP requests information from SUNAT in accordance with the form, term and conditions established in the regulations.
The term of ten (10) years of prolonged inactivity in the registry items is counted from January 1 of the year following the date of presentation of the title that gave merit to the registration of the last corporate act before the Registry of Persons Legal of SUNARP. The preventive annotation for alleged prolonged inactivity has a term of validity of two (02) years from the date of registration by SUNARP.
After two (02) years have elapsed after the preventive notation has been extended due to alleged prolonged inactivity, SUNARP proceeds to register, ex officio, the company 's extinction seat due to the event of prolonged inactivity. The termination of a company due to prolonged inactivity can be registered at the request of a party, from the entry into force of the regulations of this Legislative Decree and until December 31, 2020, taking into account the following rules:
1. The company is in prolonged inactivity for at least three (03) years preceding the entry into force of this Legislative Decree.
2. The term of three (03) years, is counted from January 1 of the year following the date of presentation of the title that gave merit to the registration of the last corporate act before the Registry of Legal Persons of the SUNARP .
3. The period of validity of the preventive annotation for alleged prolonged inactivity provided for in this provision is six (06) months from the date of registration. Once this period has expired, at the request of the party and after publication in the official newspaper El Peruano of the acceptance of the company under this regime, the registration entry for its extinction is extended.