The purpose of Legislative Decree No. 1264 published on December 11, 2016 is to establish a temporary and substitute income tax regime that allows taxpayers (individuals, undivided estates and conjugal partnerships) domiciled in the country to declare and, if applicable, repatriate and invest in Peru their undeclared income up to taxable year 2015, in order to regularize their tax obligations with respect to such tax.
Taxpayers who apply this special regime may have, among other benefits, all income tax obligations corresponding to the undeclared income fulfilled and, with respect to criminal matters, if the tax administration -SUNAT- considers the regularization, it will be exonerated from criminal liability even if the infraction could constitute tax and/or customs crimes, but not for the crime of money laundering (Art. 12).
However, given that tax crimes constitute predicate offenses for the crime of money laundering (Art. 10 D. Leg. 1106), through the Complementary Provision of D. Leg. N° 1313 published on December 29, 2016, it was provided that for this tax regularization, the exercise of the criminal action by the Public Prosecutor’s Office for the crime of money laundering will not proceed either when the origin of the undeclared income under the Regime derives from tax and/or customs crimes.
Thus, under this normative description, the acts of concealment, possession, conversion and transfer of goods, money, instruments, effects or profits obtained through tax and/or customs fraud, constituting the crime of money laundering, cannot be criminally sanctioned. Specifically, if the taxpayer avails himself of the tax regularization, there is no criminal conviction for the tax, customs and money laundering offenses.
Therefore, in the face of a criminal investigation that could be initiated for any of these crimes, the taxpayer would have to request the filing of the same, since according to Art. 78 of the Criminal Code, political amnesty is a cause for extinction of the criminal action, given that due to political decisions of the State regarding the treatment of certain crimes, for which it deems unnecessary to maintain the punishability or punishment (Art. 89 of the Criminal Code).
Strictly speaking, section D of Article 6 of Legislative Decree 957 (New Code of Criminal Procedure of 2004), regulates the exception for amnesty, which when declared founded must determine the extinction of the procedural legal relationship and therefore the definitive dismissal of the process initiated against the accused.
Regarding the scope of the preventive anti-money laundering programs related to the tax amnesty, Legislative Decree No. 1264 has provided that the regime does not exempt the application of the rules related to the prevention and combat of crimes, such as money laundering (Art. 15). Likewise, individuals are prohibited from using this regime when the goods or money have been found in countries classified as High Risk or Non-cooperative (Inc. A of Art. 11).
This provision is due to the possible risk of money laundering due to the number of transactions that may occur and that may prevent the correct application of control measures due to the difficulty of verifying the legality of the transactions. Against this risk, the principles established in the document called “Voluntary Tax Compliance Programmes”, published in 2012 by the Financial Action Task Force (FATF) in the city of Rome, should be taken into consideration.
Thus, according to the principles, all repatriated money must be deposited through financial institutions supervised by the Financial Intelligence Unit (FIU). It should also require financial institutions to act diligently with taxpayers, identify beneficiaries, establish the origin of transfers, not accept deposits without full information that originated it or that the authorities should warn financial institutions that they are not released from reporting suspicious transactions to the FIU. Etc..
In this way, it is expected that with the corresponding regulation of this Legislative Decree, clear rules, roles and objectives of action of all state agencies and the Peruvian financial system will be established in order to differentiate the undeclared money of legal origin from the illegal origin (e.g. drug trafficking), so as to provide an expectation of tranquility and lower the risk both to the agents of the financial system and to those interested in regularizing.
1] See Miguel Abel Souto. Laundering Technological innovations, tax amnesty of 2012 and penal reform. Pg. 14.23. at URL: http://criminet.ugr.es/recpc/14/recpc14-14.pdf . Date of Consultation: 06.01.17.