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A GUIDE TO DOING BUSINESS IN PERÚ

ESTUDIO YATACO ARIAS ABOGADOS

AV. SAN BORJA SUR 1184 OF. 201

SAN BORJA

LIMA – PERÚ

CONTACT WITH: Dr. JOSÉ DOMINGO YATACO ARIAS

joseyatacoarias@gmail.com

TELEPHONES: (511) 719-9210

FAX: (511) 226-3860

ELIZABETH CASTILLO QUISPE

yatacoarias@gmail.com

TELEPHONES: (511) 719-9210

FAX: (511) 226-3860

Dr. VICTOR CALDERON PROAÑO

TELEPHONES: (511) 719-9210

FAX: (511) 226-3860

Dr. RONALD VARGAS SALDAÑA

TELEPHONES: (511) 719-9210

FAX: (511) 226-3860

www.estudioyatacoarias.es.tl
PART I

FOREIGN INVESTMENT IN PERU

Foreign investment in Perú is largely covered by the Foreign Investment


Promotion Law (Decree Law Nº 662). Under this law, the Peruvian state
recognizes foreign investment as a vital element for economic
development and provides guardantees and assurances to foreign
investment in all areas of economic activity. The legal norm seeks to
remove all kinds of obstacles and guarantee equal rights and obligations to
foreign and local investors. It also create a framework of legal stability
which allows the application of the laws standing at the time that legal
stability agreement is signed.

This norm establishes that all investors are protected by guarantees of non-
discrimination between investors and companies according to their nationality,
sector or type of economic activity, geographic locations, prices, tariffs, non-custom
duties, form of corporation, or legal status. It also establishes the right to non-
discrimination against state capital, the right to private property, the freedom for
business, the freedom to internal and foreign trade and to agree freely how to
distribute profits and dividends they generate and use the most favorable exchange
rate in the currency market.

Peruvian legislation allows investors to signed legal stability agreements with the
state which granted in an exclusive manner regardless of the standing legal regime
at the time the agreement is signed. This means those who protected by legal
stability agreements will be able to continue to apply the same legislation in force
when the agreement was signed and will not be affected modifications made later
to the legislation, including when legislation is eliminated.

These agreements are signed for ten year period and granted to investors and
companies receiving investment in which they participate the rights to a stable tax
regime, a stable regime exchange regime, stability into the right to expatriate
profits, dividends, capitals and other incomes they may receive. The legal stability
agreements grant foreign investors and companies other advantage that are not
available in other countries such as the rights to use the most favorable exchange
rate in the currency market, the same rights and duties as local investors and
companies without exceptions apart from those outlined in Peru´s political
constitution.
PART II

PERUVIAN LABOR LAWS

Labor costs in Peru amount to 50 centimes for each Nuevo Sol paid in
wages. These include basically two additional salaries paid in July and in
December each year (to compensate for service time), contributions to
pension funds, public health insurance and other smaller insurance.

Each year, employers with more than 20 employees must distribute a share in the
pre-profit net income of between 5% and 10%. This share in the profits is
distributed equitably among the days worked and wages received by each worker.

Managers and employees of trust have relative stability (following and arbitrary
sacking and after the test period, they have the right to receive compensation the
equivalent to 1.5 salaries for each year of service, up to a maximum of 12). Other
workers have absolute stability (following and arbitrary sacking and after the test
period, they can opt between being rehired or receiving compensation). Temporary
workers have different rights. Contracts can last up a maximum of five years.

Employees have the right to thirty days of holiday a year, which can be broken
down into periods of no less than seven days. Up to fifteen days may be sold to the
employer in exchange for additional pay. Employees can work up to eight hours a
day or forty eight hours a week with at least one day of rest a week. Accumulative
or atypical schemes are allowed where employees work consecutive days in
exchange for several days of consecutive rest. Overtime is calculated daily, with
overtime rate of 25% for each of first two hours and 35% from the third hour
onwards. Foreigners can be hired under temporary contract for up to three years
which can then be renewed successively. Their wages cannot exceed 30% of the
company´s global payroll and they cannot represent more than 20% of the total
workforce. Exemptions to both limits can be requested.

Subcontracting is allowed for all kinds of employment. The provider and the client
company have social responsibility for the subcontracted employees. There is no
limit to the number of workers that can be contracted through temporary
employment companies to cover activities auxiliary to the client company´s core
business. No more than 20% of the total number of workers involved in the client
company´s core business can come from temporary labor and must be restricted to
occasional and support roles.
PART III

LIMITED COMPANIES IN PERU

The limited company is the most common type of associative vehicle for
undertaking business activities in Peru through one of the following forms:

a. Regular limited company (S.A.): has a board, a shareholders´council


and management

b. Closed limited company: unlike other public companies, this company


does not need a board of directors, maintaining in its place
management and a shareholders´council.

c. Open limited company (S.A.A.): it has a board of directors, a


shareholders´council and management and has at least 750
shareholders ore more than 35% of its social capital is in hands of 175
or more shareholders, without considering shareholders whose shares,
considered individually, represent no more than 2 out of 1,000 of the
company´s capital or exceed 5% of its social capital.

Requisites to form a limited company: names and identification information


(passport for individuals or data on companies) of shareholders that will form the
limited company. Non-resident companies must name and authorized
representative to form the company in Peru.

- The exact name of the company to be constituted to carry out legal reserve on
public registers.

- Amount of social capital to constitute company. This is no minimum except for


some extraordinary sectors.

- Name of CEO and other managers and powers conferred on them.

- Social aim, which can be wide and general allowing the company to undertake
various activities.

3.1. PROCEDURES TO FORM COMPANY

- Draw up draft of social constitution (once the statute has been defined) and
present draft to public notary of lima.

- Make bank deposit for the amount of the social capital with the Peruvian
financial entity designated for this purpose.

- Convert the draft constitution into a public document and corresponding


payment and present it to the public registry of lima.
- Request for unique taxpayer registration (RUC), which is the company´s tax
identification document.

- Authorization to print invoices, so the company can carry out commercial


transactions.

- Legalization of book of shareholders and board of directors (if this exists) and
the matrix of the campany´s shares.

- An operating license must be obtained under the name of the new company.

Period

The whole process, apart from time needed to obtain a municipal operating license
and sector-specific authorizations, should not exceed fifteen days.

PART IV

THE TAX REGIME IN PERU

4.1 MAIN TAXES

1. Tax On profits

1.1 Rate
Tax rate on corporate profits is 30% while dividends and profits distributed
to individuals and nonresident legal entities are subject to a tax of 4.1%.
The profits of subsidiaries are taxed at a rate of 4.1% when they present
their annual statement.

1.2 Taxable Base


The net profit obtained by the companies, independently of the place it was
obtained, including capital gains and any income from operations with third
parties. They are allowed to deduct costs and expensive related to obtaining
the profits, with some limitations.

1.3 Statements and payment


The annual statement must be presented during the first three months of
the following year to which the tax corresponds. Monthly payment must be
based on net income.

2. GENERAL SALES TAX (IGV)

2.1 Rate
The general sales tax is a charged at a rate of 19%. Some goods and
services are exempt. Exported goods and some services are not subject to
IGV.
2.2 Taxable Transactions
Goods sold in the country, services provided in the county, construction
contracts, the first sale of property by the builder and imported goods.

2.3 Taxable Base


The price or value of the amount paid for the goods or service, which must
correspond to its market value.

2.4 Tax Credit


IGV paid on goods and services related with taxed transaction constitute a
credit for determining this tax.

2.5 Statements and Payment


IGV must be calculated and paid monthly.

3. TEMPORARY TAX ON NET ASSETS

Taxes the value of the net assets on December 31st of the previous year at the rate
of 0.5% and serves as credit against the Tax on Profits. The first 1 millon soles are
not liable.

Selective tax on consumption. Taxes luxury goods and fuels.


Tax on financial transfers. Applies to debts and payments to open accounts in the
National Financial System as well as to other specific operations. The rate is 0.07%.

PART V

INTELLECTUAL PROPERTY IN PERU

1. Legal Framework

- Paris agreement on IP protection.


- Decision 486, Council of the Cartagena agreement.
- Legislative Decree 823 Law on Industrial Property.
- Decision 351, Council of the Cartagena agreement.
- Legislative decree 822, law on the rights of the author.

2. Competent Authority.

INDECOPI – National Institute for the Defense of Competition and IP Protection.

3. Distinctive Marks.

The Distinctive Marks office (DSD) is the entity charges with matters related with
the registration of brands, commercial names, commercial slogans and
denominations of origin in Peru. Ownership over brands is obtained once it has
been registered. The period of brand protection in Peru is ten years, indefinitely
renewable for equal periods. The registers are conceded for products or services,
following the Nice Classification. According to this classification, brands are divided
into product brands (classes 1 to 34) and services brands (clases 35-45).

The process for registering brands take four months if no claims are presented. The
owner of a brand can take legal action against those infringe their rights. They can
also take legal action when there is an imminent danger that the holder´s rights
could be breached.

4. Patents on Inventions, Useful Models and Designs


When presenting a request to register a patent, the party must include the
complete text of the description of the element to be registered. The complete
procedure to obtain a patent take two years.

5. Authors´rights

Artistic and literary works are protected in Peru. Protection is afforded to any work
of ingenuity whatever its category, form of expression, merits or end. Authors
rights and their protection begin at the very moment of creation of the work.

Requests to register works are represented to INDECOPI´s Office of Authors´rights


which will examine if it meets the requirements on form and a minimum of
originality to be included.

PART VI

FOREIGN TRADE AND ASPECTS OF PROCEDURES

1. Regulation of Definite Imports

Any good can be imported into the country with the exception of those
expressly prohibited by a legal norm, goods qualified as restricted require
authorization from the official authority. Custom procedures are effected
directly by the importer if the FOB value does not exceed US$ 2,000. If not,
a custom agent carries out this task.

Maximum period to request a definite import: 30 working day from the day
following unloading. There are two mechanisms which the importer can use to
begin import procedures before the date the goods are due to arrive in Peru so that
they may be transferred directly from the customs area to the importer´s
warehouses.

The two mechanisms are:

- Anticipated customs Dispatch System: Under the anticipated customs


dispatch system, the importer can begin the procedure to import goods in Peru
up to a maximum of thirty days before the date of the goods are due to arrive
in the country.
- Urgent dispatch: The urgent dispatch System is applicable to a list of products
included in the regulations of the General Law on Customs procedures which are
permitted to adhere to a simplified set of procedures. The importer may begin
these procedures before the date on which the goods are due to arrive in Peru.

The import statemend must be accompanied by the transport document, a


commercial invoice, the certificate of origin, the transport insurance policy or letter
from the importer indicating that the goods are not insured.

2. Regulation of Definitive Exports

Any goods can be exported except those whose export is expressly prohibited by a
legal norm or those whose export is restricted by law. In this latter case, official
authorization from the relevant authority is required to effect their export. This is
the case, for example, of goods that are considered part of Peru´s cultural heritage,
such as archaeological remains.

Export procedure:

The export of goods is subject to minimum requisites which are overseen by the
national tax administration authority SUNAT. To be able to begin the procedure,
exporters must present a simplified statement (when the FOB value is less than
US$ 2,000) or a Complete Customs Statement (When the Value is higher than US$
2,000). The simplified statement can be presented directly to the customs authority
by the exporter. The goods for export must be loaded for export within a maximum
period of ten days counted from the date of the provisional export statement. Once
this period has passed, the exporter them has a maximum period of fifeen days
from the date of the last shipment to regularize the export with the relevant
authorities.

It is important to note that goods for export are subject to physical inspection by
customs officials.

The export statement must be accompanied by a transport statement, a


commercial invoice and other documents that are required according to the norms
specific to the type or classification of goods being exported, like, for example,
special authorizations in the case of restricted export goods.