JMC GAMING CONSULTANTS EIRL Legal Framework for Foreign Investment in Peru José Miguel Chueca JMC...

JMC GAMING CONSULTANTS EIRL

www.jmcgamingconsultants.net

Legal Framework for Foreign Investment in Peru

José Miguel Chueca


Lima - Perú



1. Legal Framework for Foreign Investment in Peru



Foreign Investment in Peru

• Legal Framework:– Constitution:

Guarantee favorable treatment to foreign investors.

– Legislative Decree N° 662The State promotes and guarantees foreign investments in all sectors of economic activity in any ofbusiness or contractual forms allowed by Law.


www.jmcgamingconsultants.netForeign Investment

• Procedures for Foreign Investment:– Contributions to the capital of a new or

existing corporate any of the forms identified in the LGS in freely convertible currency or in physical or tangible goods, such industrial plants, new and reconditioned machines,new and refurbished equipment, parts, pieces and parts,raw materials and intermediate products;


www.jmcgamingconsultants.netForeign Investment

– Investment in local currency from resources entitled to be remitted abroad;

– Conversion of private obligations with foreign actions;

– The reinvestment;– Investments in assets physically located in

Peru.


www.jmcgamingconsultants.netGuarantees

– Equal treatment.– No discrimination.– Property rights of aliens has no

limitations than those established by the Constitution



Guaranteesfor Foreign Investment

– Equal treatment of intellectual property rightsindustrial.

– Right to freedom of commerce and industry and freedom export and import.

– The acquisition of shares or rights owned by national or subregional investors.

– Right to use the exchange / purchase more favorable.



Guarantees• The right to free shipment, after payment of the

tax law,from:– The whole of their capital including the sale of shares

shares or rights, capital reduction or liquidation all or part of companies and,

– Full of dividends or net profits proven and tradeoffs for the use or enjoyment of property physically located in the country, and royalties and tradeoffs for the use and transfer of technology, including any constituent of PI.



Foreign Ownership

• Available in all areas.Exceptions:– 50 km of Border Area (only with a DS)– Broadcasting (Radio and TV)– Commercial Aviation (49%)– Merchant Shipping (49%)



Legal Stability Agreements

• Agreements between investors and the state.Guaranteed for 10 years within the following rights:– Stability of the tax system in force at the time

of conclusion of the agreement.– Stability of the free availability of foreign

exchange– Stability of the right to non discrimination– To submit disputes to arbitration.



Legal Stability Agreements

• Requirements:– Submission of Application to PROINVERSION– Minimum Investment: $ 5 million through the System

National Financial, U.S. $ 10 Million in Mining andHydrocarbons within 2 years.

– Signing of the Convention before the investment– The accreditation of foreign investment within the

prescribed period in the Convention (2 years).



2. Financial Regulations



General Aspects

• The possession of foreign currency is free and guaranteed constitutionally.

• The entry of foreign currency for investmentfrom abroad is free and not subject to control orregulation.

• The foreign currency out of the country is free and not subject to control or regulation.

• Currently, since 1990, there is no change in control country.



3. Forms of Business Organization



Business Structures

• Subsidiary

• Branch

• Contract Associative



Subsidiary

• It is independent.

• It can be 100% foreign capital, except in some sectors (eg broadcasting, commercial aviation, merchant navy)

• Directors and managers can be foreigners.



Subsidiary

– Public Limited Company (PLC)– Closed Stock Company (CSC)– Commercial Limited Liability Company

(CLLC)



Constitution of a Subsidiary • Public Limited Company

– Modalities: SA, SAC, SAA.– Minimum 2 partners. No maximum.– Social capital is represented by shares. No

minimum.– Organization: General Meeting of

Shareholders, Directors and Management.Directors can be foreigners.



Constitution of a Subsidiary• Commercial Limited Liability Company

(CLLC)– Social capital is represented by shares. No

in securities.– Minimum of partners is 2 and the maximum is

20.– Oversight bodies are the General Meeting of

Partners and Management.– All partners will change the registry.– No legal reserve.



Constitution of a Subsidiary

• Division, office or other business unit of the Matrix.

• Agreement made by the parent.• The agreement creating the branch must

indicate the capital assigned to it, the activities undertaken, including the name and powers of attorney for their legal representatives in Peru.

• Notarial Deed of Constitution in Peru.• Enrollment in Public Registries.



Branch vs. Subsidiary BRANCH

• Complete legal independence with respect

• The matrix can be liable to third parties for the acts of the branch. No limited liability.

• Manager Government has it. Report to the Matrix.

• Dissolution and Liquidation is decided by the Matrix.

• Only accounting books.• Constitution takes approx. 90 days.• In contracts with the Peruvian

government, experience, expertise and capital of the parent qualify the branch.

• They pay income tax only on Peruvian source income.

SUBSIDIARY• Is dependent. Control from the outside

to its parent.• Liability of shareholders or partners

restricted the amount of their capital contributions.

• Government will have the Board and Chief Executive.

• Dissolution and Liquidation is decided by the Board.

• are needed corporate and accounting books legally notarized.

• Constitution takes approx. 30 days.• In contracts with the Peruvian

government, experience, expertise and capital of the parent company do not qualify for the subsidiary.

• Pay Income Tax on global source income.



Associative Contract

• Consortiums

• Joint ventures

• Venture Partnerships



Associative Contract• Are contracts.• Do not give rise to a legal person.• Have no independent corporate existence.• Do not require dissolution and liquidation.• They are not autonomous assets.• They enroll in some records.• Have on personality.• They are accounting and tax subjects.



Constitution Process • Stage Preview: Book of Names,

Registration Authorities.

• Stage Attorney: Minutes, Capital Deposit and Book Signing.

• Registry Status: Public Records.

• Registration with the Single Register of Taxpayers (RUC).

• Obtaining the Operation License.



Constitution Process• Registration with the Ministry of Labor and

Employment Promotion.

• Registration with Essalud, NPO, PFAs.

• Opening of Organizational and Accounting Books

• Registration of Foreign Investment.

• Records Branch (CONSUCODE, Mining, hydrocolloid, etc.).



4. The Peruvian Labor Regime Employee Hiring in Peru



Methods of Recruitment

Methods of Work Contract:

1. Employment Contract for an indefinite period.-

– It is the general rule.– No need to be written.– Does not require approval.– No time limit.– Workers on the payroll after they have passed

the security test period.




• 2) Employment Contracts Fixed Term .-- Contract for home or increased activity- Contract market needs- Contract for corporate restructuring- Contract occasional- Contract substitution- Emergency Contract- Contract for specific work or service- Intermittent Contract- Seasonal Contract




2. Employment Contracts Fixed Term.-Features:

– Only by exception.– In writing.– It is recorded in the Ministry of Labor.– A fixed term (no ceiling).– It is informed.– Protection only for the term of the contract.



Methods of Recruitment3. Part time contract.-

Less than 4 hours daily weekly average.– In writing.– It is recorded in the Ministry of Labor.– It is informed.– No protection.– No CTS.– If the worker leaves, gratuities and life insurance

are paid.



Working Conditions • Maximum Working Week:

8 hours or 48 hours per week.Any excess is overtime (overtime).Extra Time with a surcharge is payable not less than 25% ofhour value by the first two hours and 35% byremaining.

Exceptions:(i) managers;(ii) workers who are not subject to auditimmediately;(iii) expected intermittent services, supervision or custody.



Working Conditions

• Weekly Rest:24 consecutive hours x week.Preferably Sunday.• Holidays:Working holiday surcharge is paid at 100%.



Working Conditions • Holidays:

30 calendar days of paid vacation per yearFull service.

If you do not take vacations during the year following thatwhich acquires the right, is entitled to triplesalary:(i) 1 salary for work performed;(ii) 1 salary for leave not taken; and(iii) 1 salary as compensation.



Working Conditions

• Minimum Wage (RMV):Minimum monthly accrued to the employee who works atleast 4 hours a day average.Amount: S /. 750.



Employment Benefits

• Legal Bonuses:2 legal awards each year:• 1 salary for the national holiday (July). It is payable on July 15.• 1 salary for Christmas (December). It is paid on 15December.Worker who stopped by and worked at least 1month in the six month period, is entitled togratification truncated (sixth).



Employment Benefits

• Family Allowance:Beneficiaries: Employees who have one or more childrenunder 18 years or up to 24 years of age who arestudies.Amount: 10% of the RMV (S /. 50).

• Compensation for Services (CTS):CTS is deposited every 6 months (May and November eachyear.) special bank account of the worker.Amount: Each deposit is a month ½ prevailing wageprevious or the date of termination.



Employment Benefits

• Participation of Utilities:- Companies fishing, telecommunications and industrial companies: 10%- Mining companies, wholesalers and retailers and restaurants: 8%- Companies that engage in other activities: 5%.

• Exceptions:- Civil Partnerships.- Companies with no more than 20 workers.- Cooperatives and self-management.- Zona Franca de Ilo.



Employment Benefits

• Life Insurance:Employer's obligation to insurance policies from private life for employees who work more than four consecutive years.



Social Contributions • Contribution to Social Health Insurance (ESSALUD):

Monthly contribution for 9% of worker's compensation. In charge of the Company.

• Contribution to the Pension System:Workers can choose between National Pension System (ONP) or private pension system (AFP).Monthly contribution is deducted to the employee.

Amount:ONP - 13% of payAFP - variable rate, but on average 12%.



Foreign Personnel

• Contract writing.• Fixed term not exceeding 3 years,

renewable.• Require approval of Ministry of Labor.• Minimum Content.• Equal rights and benefits as national

workers.• Takes effect upon approval by the

Authority to work and obtain a work visa



Foreign Personnel

• Limitations .-Issue - 20% of all workers.Compensation - 30% of the template.

Exemptions:- Professional or specialized technical personnel,- Management staff or management of a new activity,- In case of corporate restructuring.



Overseas Staffing • Exclusions:

i. with spouse, ascendants, descendants or siblings Peruvians;ii. have an immigrant visa;iii. come from a country with which labor reciprocity agreement exists or dual nationality;iv. are foreign investors, provided that their investments have a permanent amount during the contract period not less than 5 ITU (S /. 17.250).



Foreign Personnel• Major Qualities Migratory:

• Work Visa:Foreign Workers.

• Worker Visa Foreign Company:Foreign workers who are highlighted by aforeign firm to work in a Peruvian company inunder a services contract signedbetween the companies.



Overseas Staffing

• Business Visa:Empowered to sign contracts or transactions, not to perceivePeruvian source income.

• Investor Visa:Minimum investment of $ 25,000.00 in a companyestablished in Peru.



Location of Working Services vs.Contract

Location Services Work Contract

Self Service Service under control(schedules, memos)

SubordinationCoordination



5. Peruvian Tax Regime



Major Taxes • Income Tax - General Business Conditions

Companies domiciled in the country are affecting the TaxIncome in respect of their net income as a global source (revenue minuscosts and expenses as deduction is allowed by law - UtilityTax), with a rate of 30%.

Branches and permanent establishments in Perucompanies domiciled in the country not only affected the taxIncome for their Peruvian source net income (Income Tax)with a rate of 30%

Companies domiciled in the country not only affected theImposed by their Peruvian source income. In most cases,Gross income is affected with a rate of 30%



Income Tax

• Peruvian source income:

a) Those produced by assets located in Perub) produced by capital, when capital is in place or used economically in Peruc) Dividends and other forms of distributionutilities, paid companies domiciled in the country,d) The originating in civil, commercial, business or of any kind, carried out in the country.



Income Tax


e) staff through work carried out in territory, including allowances for directorsf) annuities and pensions that have their origin in thepersonal work, when they are paid by an individual or entity located or organized in the country.g) obtained by the sale, redemption or redemption of securities representing the capital, and debt securities representing similar.



Income Tax


h) obtained by digital services provided through theInternet or any adaptation or application of the protocols,platform or technology used by Internet or anyanother network through which services are equivalentwhen the service is used economically, used or consumed in the country.i) obtained by technical assistance when it is used



Income Tax• Retaining Foreign Remittances:

• Income from foreign sources: 0%• Interest paid to unrelated: 4.99% (with cap)• Interest paid to associates: 30%• Interbank Interest: 1%• Royalties: 30%• Dividends and Distribution Utilities: 4.1%• Reduction of Capital to the Nominal Value: 0%• Sale of Shares: 30% capital gain• Technical Assistance accredited auditors: 15%• Support non-accredited: 30%• Domestic services: 24% (effective rate)• Dependent Personal Services: 30%• Other income that qualify as Peruvian source: 30%



Waiver Agreement of Double Taxation

The profits of an enterprise resident in India can onlybe taxed in Canada, unless the enterprise carries onactivity in Peru through a permanent establishmentsituated therein.

If the enterprise carries on or has carried on business through apermanent establishment in Peru, the benefits of the companyChile may be taxed in Peru, but onlyextent attributable to that permanent establishment.


www.jmcgamingconsultants.netWaiver Agreement of Double Taxation: Dividends

• When an enterprise resident in Canada carries on business in the Peru through a permanent establishment situated therein, is attributed to that permanent establishment the profits which they would able to obtain as if it were a distinct and separate enterprise of which is a permanent establishment.

• In this case, for the determination of benefits,allow the deduction of the expenses needed to produce them,including management and administration costs incurredboth Peru and Chile



Dividends paid by a company resident in Peru toresident in India shall be taxable in Peru. In thisOf course the tax charged shall not exceed:

(a) 10% of the gross amount of dividends if the beneficialowner is a company which controls directly or indirectly not less than 25% of the voting shares of the companypaying the dividends;

(b) 15% of the gross amount of dividends in all othercases.

(The applicable rate in Peru is 4.1%)



Interest arising in Peru and paid to a resident in Chile may be taxed in Peru, under the legislationPeruvian, but if the beneficial owner is a resident of another stat Contracting, the tax so charged shall not exceed 15% of gross amount of interest.

(The rate applicable to interests in Peru with unrelated parties is4.99%, the rate for related party interest is 30%)


www.jmcgamingconsultants.netWaiver Agreement of Double Taxation: Royalties

Royalties from Peru and paid to a resident in Chile may be taxed in Peru and in accordance with the Peruvian law, but if the beneficial owner is resident in Chile, the tax so charged shall not exceed 15% of the gross amount royalties.

(The applicable rate in Peru is 30%)


www.jmcgamingconsultants.netWaiver Agreement of Double Taxation: Royalties

• "Royalties": payments of any kind paid for the use, orright to use, any copyright of literary, artisticor scientific work including cinematograph films or films,tapes and other means of reproducing sound,patents, trademarks, designs or models, drawings, formulas orprocedures secrets or other intangible property, or use orright to use, industrial equipment, commercial or scientific, orfor information concerning industrial, commercial orscience.


www.jmcgamingconsultants.netWaiver Agreement of Double Taxation: Capital Gain

Gains derived by a resident of Canada maybe taxed in the case of Peru:

1. Real property located in Peru and only in Peru.2. The from the alienation of movable property formingpart of the assets of a permanent establishment which an Chile has company in Peru.3. The obtaining by the sale of securities or other rightsrepresenting the capital of a company or any othertype of financial instrument located in Peru.




Waiver Agreement of Double Taxation: Capital Gain

Gains from the alienation of any property other other than those referred to above set in Peru, Chile obtaining residents can only undergo taxation in Chile.




Waiver Agreement of Double Taxation:

Independent Personal Services Income derived by an individual who is resident in

Chile, with respect to professional services or other activitiesconducted independent in Peru, for terms of less than 183days over a period of twelve months, may be taxedin Peru, but the tax payable shall not exceed 10% of amountGross earned by those services or activities.

"Professional services" includes especiallyindependent scientific, literary, artistic, educational orteaching and independent activities of physicians,lawyers, engineers, architects, dentists, accountants andcounters.

(The effective rate in Peru is 24% applicable if the residentIndia exceeds 183 days in Peru)


www.jmcgamingconsultants.netWaiver Agreement of Double Taxation: Independent Personal Services

However, such income may be taxed only in Peru:

(a) such person has a fixed base in Peru of theregularly available to carry out its activities insuch cases can only be taxed on the portion of Peruincome as is attributable to that fixed base;

(b) if the person is living in Peru for aperiod or periods aggregating 183 days added to or exceed, within any period of twelve months, in which case, can only Peru taxed in the share of income derived from activities performed by him in Peru.

(The effective rate in Peru is 24%)



Waiver Agreement of Double Taxation: Dependent Personal Services

• Salaries, wages and other remuneration derived by aresident of Canada in respect of an employment shall be taxable only totaxation in Canada, unless the employment is exercised in Peru. Ifthe employment is in Peru, remuneration derived fromsame may be taxed in Peru.

(The rate in Peru is 30%)



Waiver Agreement of Double Taxation: Dependent Personal Services

However, remuneration derived by a resident of Chilein respect of an employment exercised in Peru are taxedexclusively in Chile where:

(a) the recipient is present in Peru for a period or periodswhich do not exceed in the aggregate 183 days in anytwelve month period commencing or ending in the tax yearconsidered and

(b) the remuneration is paid by or on behalf of a personwho is not resident in Peru, and

(c) the remuneration is not borne by an establishmentpermanent or a fixed base which the employer has in Peru.



Waiver Agreement of Double Taxation:

Trustees, Directors Diets

Directors' fees and other similar payments that a Chile resident capacity as a member of a directory or a similar organ of a company resident of Peru can undergo to tax in Peru.

(The effective rate in Peru is 24%)



Waiver Agreement of Double Taxation: Other Incomes

• The income of a resident of Chile is not mentioned in the Convention andwhich come from Peru, may also be taxed in Peru.




Waiver Agreement of Double Taxation: Aplication Problems

While the Convention was adopted by Congress Legislative Resolution No. 27906 (regulation having the force of Law), the Tax Administration has not regulated the application of Convention, so the Peruvian counterparts to avoid any possible tax contingencies, practice the retention agreement General Scheme of the Law on Income Tax.



Waiver Agreement of Double Taxation: Aplication Problems - Solution

Any relationship with Peruvian counterparts verified by written contracts incorporating tax clause requiring thePeruvian counterpart to the implementation of the Convention in termsapproved by Legislative Resolution No. 27,906 Income.



Major Taxes General sales tax (IGV) Equivalent to VAT.

Applied on:

• The sale of goods in Peru• The services provided by entities domiciled in Peru in Peru• The services used or provided in the country by non-domiciled• Imports.

The tax rate is 19% and applied to the sales value ofgoods or services. Importation of goods on the valuePlus customs duties and other taxes.



General Sales Tax (GST)IGV taxpayers are domiciled individuals who:

• Undertake the sale of property in Peru• Provide services provided in Peru• Users of services used or provided in the country by non-domiciled• importers.

The tax is transferred to the purchasers of goods and serviceswho can apply as a credit against the VAT in their care.



General Sales Tax (GST)• Exporters have the system for recovering the balance in

favorthe IGV paid on the acquisition of goods and services.

New companies before the start of operations have thebenefit of early recovery of VAT, the devolviéndoselesVAT that they have been transferred in the acquisition of goods andservices.

No refund of tax credit once they have begun operations andapplication until exhausted.



Major TaxesTemporary Tax on Net Assets (NRTI)

Gravel net assets of people generating incomethird category and is a credit against the income tax.Gravel with a rate of 0.5% of assets over

S/.1 '000 .000.00

Financial Transactions Tax (ITF)

Temporary tax of 0.08% for banking operations, bothdebit as payment in bank accounts



Major Taxes: Duties on Imports

Highest Tariff: 25%

Lowest tariff: 0%

Tariffs are applied to the "customs value" of the merchandise according to WTO rules

JMC GAMING CONSULTANTS EIRL Legal Framework for Foreign Investment in Peru José Miguel Chueca JMC...

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