On 18 January The National Tax Authority (Superintendencia Nacional de Aduanas y Administración Tributaria or SUNAT) published Report No. 000005-2022 - SUNAT/70000 on its website. The report addresses a query regarding which category covers income attributed to shareholders by investment funds for real estate income (FIRBI) and securitization trusts for investment in real estate income (FIBRA), in case these shareholders are natural persons domiciled in Peru.
1. Income attributed to natural persons domiciled in the country by investment funds that make investments in real estate businesses:
- Investment funds should distinguish and attribute to their shareholders second-category income (e.g., income from deposits with companies in the financial system) and third-category income (e.g., income from the operation of the real estate business through leasing, transfer and others), as appropriate.
- Investment funds that qualify as FIRBI must also distinguish and attribute second- and third-category income to their shareholders, as appropriate.
- Income derived from the sale of real estate carried out by a FIRBI constitute third-category income.
2. Income attributed to natural persons domiciled in the country by securitization trusts that carry out real estate activities:
- Income that trusts generate from real estate activities may qualify as second- or third-category income, depending on whether these come from the development or execution of a business or company. Second-category income, for example, are those made in deposits with national banks or instruments representative of these, while third-category income are those that come from activities of lease or other forms of transfer in the use of real estate.
- Income that a FIBRA attributes will qualify as second- or third-category income, as appropriate.
- Income derived from the sale of real estate carried out by a FIBRA constitute third-category income.
- The criterion issued by SUNAT is important because it clarifies that income derived not only from the lease, but also from the disposal of real estate by the FIRBI and FIBRA, constitute third-category income.
- Considering the above, it should be concluded that income derived from the sale of real estate by the FIRBI and FIBRA are subject to an income tax rate of 29.5%.
- This is because the benefit of the reduced fee (5%) is only provided for the income attributed by the FIRBI and FIBRA for the lease or other onerous forms of transfer in the use of real estate.
- All of the abovedoes not represent a tax incentive in the case of natural persons who wish to invest in a FIRBI or FIBRA through the contribution of real estate, because in case these are transferred, the profit on the sale will be subject to an income tax rate of 29.5% (at least in the part that exceeds the value of the contribution).
- It would be necessary for SUNAT to confirm that only the part that exceeds the value of the contribution will be taxed at the rate of 29.5%, while the value of the contribution will be subject to the rate of 5%.
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