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Tax exempt capital gains
Pursuant to Law No. 30341, beginning 1 January 2016, capital gains derived from the transfer of shares, American Depositary Receipts (“ADR”), Global Depositary Receipts (“GDR”) and Exchange Traded Funds (“ETF”), listed and traded on the Peruvian Stock Exchange will be exempt from IT. This exemption shall apply provided that the following conditions are met:
(i) The transferor and its related parties do not transfer ownership of 10% or more of shares issued by the same company through one or several simultaneous or successive operations within a 12 month period. In case of ADR and GDR, such percentage will be determined taking into consideration the underlying shares and their issuers.
For purposes of determining the referred 10%, all transfer of shares will be considered, including those executed out of the Peruvian Stock Exchange, with certain exceptions.
If the 10% sale threshold is exceeded, the IT will be applied over the capital gains previously considered tax exempted derived from all transfers executed within the prior 12 months. In this scenario, the taxable capital gains will be determined considering the market value and cost of the shares (or underlying shares in case of ADR and GDR) at the time they were transferred.
(ii) The shares, ADR, GDR and ETF must have a “market presence.” This concept is determined according to a formula based on the frequency and amounts in which these instruments are traded on the Stock Exchange. These securities will comply with the “market presence” requirement if the daily amounts in which they are traded are at least equal to four Tax Units in 27 days within the 180 days prior to the transfer (for 2016, a Tax Unit is equivalent to approximately USD 1,160, so the threshold would be approximately USD 4,640).
Subject to certain conditions, the exemption could also apply to the capital gains obtained from the transfer of shares that are registered for the first time with the Peruvian Stock Exchange.
If the tax exemption is not applicable, the capital gains obtained will be levied with the IT rate of 5% or 30%, in case of non-domiciled subjects or 6.25% or 28% in case of domiciled subjects.
Bear in mind that the exemption will be valid until 31 December 2018. However, this term may be later extended.
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According to the :Law’s provisions, this tax exemption is intended to promote the use of the Peruvian Stock Exchange as a suitable source of financing of entities and individuals through the disposal of shares. Likewise, this Law intends to promote the liquidity of the Peruvian Stock Market by including the requirement of “market presence” of the shares as a condition for the tax exemption to apply.
However, the conditions for the exemption to be applicable (limited amount of transfers in 12 months and the “market presence” requirement of the shares) could make it useless as a financing source when the market value of such shares is not relevant or when the transaction only makes business sense if the quota of shares sold is greater than 10%. Still, this exemption is an interesting item to take into account when structuring sales and acquisition transactions and could encourage companies to list their shares on the Peruvian Stock Exchange for the first time.