The Tax Criminal Law defines a tax fraud as:
- The own benefit or that of a third party, using any artifice, deceit, cunning, ruse or other fraudulent means to stop paying all or part of the taxes established by law; Obtain exemptions or tax exemptions, reimbursements, tax credits, compensations, refunds, tax benefits or incentives, simulating the existence of facts that allow the enjoyment of the same; Simulate or provoking states of insolvency that make it impossible to collect taxes.
- Obtaining exemptions or tax exemptions, reimbursements, tax credits, tax credits, compensations, refunds, tax benefits or incentives, simulating the existence of facts that allow the enjoyment of the same.
- Simulating or provoking states of insolvency that make it impossible to collect taxes.
- Whoever, being obliged by the tax regulations to keep accounting books and records: a) Totally fails to comply with such obligation; b) Has not recorded acts, transactions, income in the accounting books and records; c) Makes entries of false accounts, entries, amounts, names and data in the accounting books and records; d) Destroys or conceals totally or partially the books and/or accounting records or documents related to taxation.
- Provide false information on the occasion of the registration or modification of data in the Single Taxpayers Registry, and thus obtains authorization to print Payment Vouchers, Remittance Notes, Credit Notes or Debit Notes; Whoever, being registered or not before the tax administration body, stores goods for their distribution, commercialization, transfer or other form of disposition, whose total value exceeds 50 Tax Units (UIT), in places not declared as tax domicile or annexed establishment, within the term established by the pertinent laws and regulations, in order to avoid paying all or part of the taxes established by law.
Under Peruvian law incurring a tax debt does not configure a crime. According to the Tax Criminal Law, it is a tax crime to avoid payment of taxes, with willful misconduct, by means of deceive or fraud in order to obtain a personal advantage or benefit.
Criminal intention is a requirement of criminal offence.
No, it is necessary to prove that the fraud exists (see answer to Question 2)
Yes. Peruvian Tax Code establishes that a criminal action may not be exercised by the Public Ministry, nor can the Tax Administration communicate to the Public Ministry the existence of evidences of the commission of a tax crime, when a taxpayer has amended their tax return and paid the resulting tax debts prior to the moment when the Public Ministry starts the corresponding investigations or absent of the investigations, the moment when the Tax Administration starts the tax audit related to the tax and period in which the taxpayer engaged in the behaviors described above.
No. The prosecutor can prosecute the tax fraud only and when the Tax Authority requires it.
See answer to Question 5.
The statute of the limitation period applicable is the time of the sentence plus half of it.
The tax crime has an immediate execution nature, and thus the statute of limitation period runs as from the day in which the crime was committed. To that extent, we are of the opinion that such period would start as from the day in which the determination of the tax debt is due, which will depend on the type of tax we are dealing with.
The tax crimes are penalized with no less than five and no more than eight years of imprisonment. In addition to that, in the case of tax defrauding, the sanction may include no less than six and no more than seven years of prohibition to exercise profession, commerce or industry.
Yes, a Company will be exempt from criminal liability if it adopts and implements, prior to the commission of the crime, a prevention model appropriate to its nature, risks, needs and the commission of the crime, consisting of surveillance and control measures to prevent the crimes of corruption of public officials; collusion; influence peddling; money laundering and terrorism financing.
Criminal tax are not including in the aforementioned Regime.
See answer to Question 5.
Yes, the statute of limitations period will be suspended during the judicial process.
Yes, the Peruvian Tax Authority may continue to collect unpaid taxes even though the Company is part of a criminal tax proceeding
It is not possible.
Just Individuals.
Yes.
We have not such information. But according to reports of the Financial Intelligence Unit (FIU) the trend of criminal prosecution has been increased over the last years.