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  • Estudio Alvarez Calderón

Tax consequences of the termination of a lease or lease agreement

The Supreme Court of Justice specified the assumption of termination of this contractual modality. It was by means of the judgment corresponding to Cassation No. 12818-2017 Lima, issued by the Third Chamber of Constitutional and Social Transitory Law of the highest judicial instance, with which it declared unfounded that appeal filed as part of an administrative contentious process.  

The purpose of the lease or leasing agreement is to deliver movable or immovable property of a company for use by the lessee, in exchange for the payment of periodic installments with option to purchase at the end of the contract.

Thus, the matter at issue in that file was to determine whether or not a taxpayer had to recognize income for income tax purposes (IR), due to the expiration of the monthly installments of the financial lease agreement that he had signed.

For the tax authority and the Tax Court (TF), the taxpayer did have to recognize income for the purposes of the IR because his financial lease agreement had not been resolved. For Sunat and the TF, financial lease agreements can only be resolved judicially, in application of article 10 of D. Leg. No. 299, and since this formality was not followed, each month the contract continued to accrue fees and, therefore, accrue IR.

On the other hand, the taxpayer indicated that he did not have to recognize income for the purposes of the IR because the aforementioned financial lease contract had been fully resolved, pursuant to art. 1430 of the Civil Code, by a notarized letter.

The supreme court declared the appeal unfounded when it considered that the term “rescission” of article 10 of D. Leg. No. 299 must be understood as "resolution." This is due to the fact that only payment defaults may result in a lease. With the Civil Code, in addition, other extrajudicial mechanisms are established to resolve contracts with reciprocal benefits, such as financial lease contracts that are not exclusive, he said.

The Supreme Court also establishes the source of the contractual resolution of the financial lease contracts to determine whether or not the IR accrues on the monthly installments after the termination of the agreement.

(Source El Peruano)

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