Tax on intangibles in Peru: Correct tax treatment is a critical issue

Under Article 44(g) of the Peruvian Income Tax Law (LIR), the amortisation of intangible assets is deductible provided that:

• The asset has a limited useful life
• It has been acquired for consideration
• The amortisation period does not exceed ten (10) years, whereby a shorter useful life must be technically justified

The law establishes a special regime for intangibles, differentiating them from tangible fixed assets. Notably, goodwill (crédito mercantil) generated internally is not deductible, whereas acquired goodwill is subject to strict scrutiny.

Peruvian tax legislation allows amortisation only for intangibles acquired from third parties for consideration. Self-generated intangibles are generally not deductible, as there is no identifiable acquisition cost for tax purposes.

SUNAT has consistently maintained a restrictive interpretation in this regard, denying amortisation where the taxpayer cannot demonstrate:

• A valid transfer agreement
• Economic substance of the transaction
• Proper valuation
• Actual use in generating taxable income

Although the income tax law allows amortisation over up to 10 years, the taxpayer may apply a shorter period if adequately supported.

Fiscal case law has emphasised that:

• The useful life must be technically supported
• Accounting treatment alone does not determine tax deductibility
• The burden of proof lies with the taxpayer

In several resolutions, the Tribunal has upheld SUNAT adjustments where taxpayers failed to justify the economic life of licenses, concessions, or contractual rights.

Based on recent audit trends, the most sensitive issues include:

• Valuation of intangible assets in business reorganisations
• Amortisation of trademarks, software licenses, and know-how
• Deductibility of goodwill arising from share acquisitions
• Recharacterization of transactions lacking economic substance

SUNAT increasingly applies a substance-over-form approach and may challenge amortisation if the transaction is deemed artificial or lacking business purpose.

To mitigate audit risks, companies should:

• Ensure that intangible acquisitions are properly documented and supported by independent valuations where applicable
• Clearly identify the income-generating capacity of the intangible
• Maintain technical reports justifying the amortisation period
• Align contractual terms, accounting treatment, and tax reporting
• Evaluate the impact of transfer pricing rules in related-party acquisitions

• Low Risk: Third-party acquisition of identifiable intangible with independent valuation and documented useful life
• Medium Risk: Related-party transfers with robust transfer pricing documentation
• High Risk: Amortisation of goodwill from share deals or poorly substantiated reorganisation structures

The tax amortisation of intangible assets in Peru is an area subject to strict scrutiny by SUNAT and evolving jurisprudence. Companies should adopt a preventive approach, ensuring technical and legal support for their positions, particularly in complex corporate structures or intra-group transactions.

A defensible tax position requires not only compliance with the wording of the law, but alignment with SUNAT’s interpretative criteria and fiscal tribunal precedents.