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Scope of the qualification of digital services: 30% for consulting services and/or technical support provided through emails?

February 20, 2026

Articles

1. Current regulations

The Income Tax Act (LIR) states that they are taxed with Income Tax, among others, digital services provided by a subject not domiciled in favor of a subject domiciled in Peru, provided that the latter economically uses, uses or consumes such services in the country.

Please note that this category of digital services constitutes an exception to the service taxation rules provided for in our IR regulations, in the case of non-domiciled providers, since, in principle, only those services provided within Peruvian territory are taxed.

For its part, the first paragraph of paragraph b) of Article 4-A of the Regulations of the LIR, establishes that a service shall be considered as a “digital service” when all of the following requirements or constituent elements are met:

that it is a service;
that is presented through the Internet or any adaptation or application of the protocols, platforms or technology used by the Internet or any other network through which equivalent services are provided;
to be made available through online access;
characterized by being essentially automatic; and,
that is not feasible in the absence of information technology.

In addition, the second paragraph of paragraph b) states that the following 13 services are considered to be digital services, among others:”1. Software maintenance: (...). 2. Networked customer technical support: (...). 3. Data warehousing: (...). 4. Application Hosting: (...). 5. Application Services Provision (ApplicationServiceProvider — ASP): (...). 6. Storage of Internet pages (web sitehosting): (...). 7. Electronic access to consulting services: (...). 8. Advertising (Banner ads): (...). 9. “Online” auctions: (...). 10. Information Sharing: (...). 11. Access to an interactive website: (...). 12. Interactive Training: (...). 13. Online portals for buying and selling: (...).”

In the event that a digital service is configured, the gross remuneration for it will be subject to a 30% withholding. As is known, in practice, this amount ends up being borne by the local company (user), constituting a non-deductible extra cost, since it is the Income Tax that should fall on the non-domiciled supplier.

It is important to be clear that NOT all technological services constitute or qualify as “digital services” (and, therefore, subject to the above-mentioned 30% extra cost), but only those that meet the above-mentioned constituent requirements.

2. Current position of SUNAT

Notwithstanding the above, SUNAT has issued Report No. 000039-2024-SUNAT/7T0000 in which, reiterating a position adopted several years ago in its auditing procedures, it has stated verbatim that:

“From the above, it flows that when the second paragraph of paragraph b) of Article 4-A of the Regulations of the LIR states that those listed there are considered digital services, among others, it must be understood that all these services qualify as digital, even if they do not meet any or some of the characteristics described in the first paragraph of the said standard, such as, for example, that they are not essentially automatic; since, only in those cases that do not appear in said list, for such a service to qualify as digital, it will necessarily have to comply with the characteristics established in the first paragraph of the standard in question.”

Under this position, which we do not share, SUNAT maintains that the list of services (e.g. consulting services provided via email) indicated in the LIR Regulations will always qualify as digital services, regardless of the intrinsic requirements that characterize digital services, as expressly indicated in regulatory standards.

3. Position of the Tax Court and the Judiciary

In contrast to what was indicated by the Tax Administration, the Tax Court, in various Resolutions such as Nos. 01217-2-2021, 05985-11-2021, 05980-1-2021 and 06318-2-2019, has stated that, in order for a service to qualify as a “digital service”, all the general constituent elements of the definition established in paragraph b) of Article 4-A of the LIR Regulations must be analyzed concurrently.

In addition, said Collegiate Body has indicated that the above applies even to the enumerative list (examples) of services that could be considered as a digital service indicated in the second paragraph of paragraph b) of Article 4-A of the Regulations of the LIR. Indeed, as can be read in one of his pronouncements on the subject:

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In the event that a digital service is configured, the gross remuneration for it will be subject to a 30% withholding.

RTF 05985-11-2021

“That along these lines, through Resolution No. 06318-2-2019, this Court has established that a service is considered digital if the following requirements are met in all cases: (i) that it is a service, (ii) that it is provided through the Internet or through any adaptation or application of the protocols, platforms or technology used by the Internet or any other network through which equivalent services are provided, (iii) that it is made available through online access; (iv) that is characterized by being essentially automatic and (v) that is not feasible in the absence of information technology.

That in this regard, the above-mentioned resolution concludes that, even though the second paragraph of paragraph b) of Article 4-A of the Income Tax Law Regulations states that digital services, among others, are considered to be a variety of services (e.g. “Software Maintenance”), in all these cases, as in any provision that did not appear in said list, it will necessarily have to be verified if the requirements established in the first paragraph of the said standard are met in order to determine if you are dealing with a digital service.”

In the same way, through Cassation No. 16003-2023-LIMA, the Supreme Court has stated that: “This is, The interpretation proposed by SUNAT is baseless, because the consulting services indicated in paragraph 7 of letter b) of article 4-A of the Regulations of the Income Tax Act must be interpreted in a manner consistent with the budgets of its basic device, contained in paragraph b) of article 4-A of the Income Tax Act Regulations. In this sense, the interpretation that the SUNAT posits (basis of causal by erroneous interpretation) must be based on a legal basis, that is, it must not be whimsical or arbitrary.”

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4. Comments

It follows from current regulations that in order to find ourselves before a digital service provided by a subject not domiciled in Peru, it is necessary to verify compliance with two requirements: (i) the constituent elements of the general definition of digital service and (ii) the concept of economic use in the country.

With regard to what is indicated in requirement (i), we share the interpretation established by the Fiscal Court and the Supreme Court, since the list of services established in the second paragraph of paragraph b) of Article 4-A of the Regulations of the LIR is only illustrative (examples) with respect to those services that could be considered as digital services, provided that they concurrently meet all the constituent elements of the general definition established in the Regulations of the LIR.

In fact, we consider that a service - whether or not it is on the enumerative list of the LIR Regulations - will be considered as a “digital service” provided that you concurrently comply with being:

an utility;
than present yourself on the Internet or of any adaptation or application of the protocols, platforms or technology used by the Internet or any other network through which equivalent services are provided;
than is made available through online access (online): that the Internet is not used solely as a means of communication and the service is carried out instantly and simultaneously (not offline);
which is characterized by be essentially automatic: that dispenses with or is accessory to human intervention; and,
than is not feasible in the absence of information technology: impossibility that the service itself can be provided by any other means (e.g. fax, physical messaging courier, calls).

In this sense, a failure to comply with any of the constituent elements mentioned above will suffice to prevent a service from being configured as a digital service for the purposes of Income Tax and, therefore, no withholding is made on the non-domiciled person.

It should be noted that under this concept, technical support services or consulting services provided by technicians and/or specialists cannot be considered as digital services (as wrongly pointed out by SUNAT), since it is evident that human intervention is essential and essential in this type of service, and therefore the use of information technologies only constitutes a means to direct such services. A different interpretation would entail creating a greater tax burden on a service provided abroad by a non-domiciled provider that, as we said at the beginning, the law provides as not taxed.

We consider that the position of the SUNAT, on which it has been insisting for several years, does not fit either the text or the current taxation logic provided for in the LIR, since it opens the door to improperly taxing services provided by non-domiciled providers executed outside Peruvian territory, in which the use of technology is only a means for their execution. This creates an obvious extra cost that will eventually fall on the local company when contracting the service or, at best, subjecting it to lengthy and costly litigation in order to assert its arguments, if it is subject to an audit.

Based on this, although the Resolutions of the Tax Court and Cassation No. 16003-2023-LIMA are not binding precedents, we consider that they have issued and established a uniform criterion on the correct regulatory interpretation of the enumerative list of services that could be considered as digital services.