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LEGISLATIVE ASSEMBLY-REPUBLIC OF EL SALVADOR
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DECREE NO 762
THE LEGISLATIVE ASSEMBLY OF THE REPUBLIC OF EL SALVADOR,
CONSIDERING:
I.-That by Legislative Decree No. 134, dated December 18, 1991, published in Official Journal No. 242, Volume N ° 313, 21 of the same month and year, was issued
the Law on Income Tax.
II. by Legislative Decree No 957 dated 14 December 2011,
published in the Official Journal N ° 235, Volume No. 393, of the 15th of the same month and year, the Law of Income Tax was reformed, introducing as part of the reforms the figure of the minimum payment to the Income Tax.
III. 18-2012, issued on November 15, 2013, by the Constitutional Bench of the Supreme Court of
Justice, the minimum payment to the Income Tax applied to 1% on the income obtained was declared unconstitutional, due to the fact that the determine as the taxable amount of the gross income or obtained, without the possibility of deduction of costs and
IV.
That the purpose of the minimum taxes is that the purpose of the minimum taxes is that the taxes are necessary for their production and the conservation of theirsource, such provisions violate the tax equity, in their manifestation of the principle of economic capacity. citizens who make use of public services and works, contribute to the public spending, as it allows to comply with the principle of generality to contribute to the
financial sustainability of the State, in turn is a mechanism anti-fraud against non-existent or improper deductions.
V.-That in various countries Latin American countries have established themselves under various denominations of minimum taxes, based on the taxable amount of net assets or gross income, or a combination of both.
VI.-The incorporation of a minimum payment on the basis of a net asset that is complementary to the Income Tax, accreditable against this guarantee
the principle of tax equity.
VII.-That there are exemptions to the printed communication sector that place them in
The Commission's proposal for a Council Regulation (EEC) on the establishment of a European Community compliance with the principles of taxation of equality, equity and generality.
VIII.-That in the light of the above, it is necessary to introduce a minimum payment to the income on the basis of the net asset, to replace the one based on the gross income or taxed, in addition to removing exemptions that do not conform to the principles
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tributaries noted.
BY TANTO,
in use of its Constitutional powers and on the initiative of the Deputy Othon Sigfrido Reyes Morales
and the Deputy Lorena Guadalupe Peña Mendoza.
DECRETA the following:
REFORMS TO THE INCOME TAX LAW
Art. 1.-In the Income Tax Act, Title VII, Chapter V, which shall be
"minimum income tax payment", which shall include the items 76 to 81, in the order and as follows:
" CHAPTER V
MINIMUM INCOME TAX PAYMENT
Liabilities Subject and Made Imposable
Art. 76.-The annual income tax shall have a minimum payment, the operative event of which is constituted by the possession of net assets in the financial year or period of taxation.
The taxable persons of this material obligation are those regulated in the Article 5 of this Law. DECLARED UNCONSTITUTIONAL
Imposable Base, Tax Alicuota.
Art. 77.-The minimum payment of the Income Tax will be settled on the amount of the net asset, with the aliquot of one percent (1%).
The amount of the net asset shall be determined by subtracting the value of the total asset, the sum of the securities from the accumulated depreciation and amortisation, the non-operating fixed assets, the assets held abroad, the shares in other Salvadoran companies and the balance of financial obligations
related to fixed assets that are in operation. They shall also be deducted from the total asset, the assets for agriculture and livestock, except agro-industry.
To determine the value of the assets and rights that are part of the total asset, as well as that of the obligations financial, the accounting technical standards authorized by the Supervisory Board of the Public Accounting and Audit Office will be used. Subjects not required to carry out formal accounting, will use the nominal value according to documents and records, they will also apply what is established in the
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this Law on Depreciation and Depreciation.
Banks, Societies Savings and Credit cooperatives, as well as the Savings and Credit Societies, supervised by the Superintendency of the Financial System, may deduct from the total asset, the value of the real estate received in payment or embargoed are part of their
extraordinary assets.
If the subject is bound to carry out formal accounting may subtract from the total asset, the value of the
technical reserves that have been incorporated in accordance with rules of regulatory authority and that of the accounting provisions in accordance with the accounting technical standards
tax base of the net asset shall not exceed the amount of gross income taxed for the financial year or period of taxation. *DECLARED UNCONSTITUTIONAL
Subject Exempt to Minimum Definitive Payment
Art. 78.-They shall not be subject to the minimum income tax payment:
(a) Natural persons who obtain income exclusively from wages and salaries;
b) Users of free industrial and marketing zones; inward processing; parks and service centers; the subjects covered by the General Law of Cooperative Associations and those covered by Article 6 of the present
Law;
c) The funded entities and trusts by the State of El Salvador
international organizations
foreign governments;d) persons exempt from the Income Tax by law;
e) The subjects mentioned in Article 76 of this Law, during the first three years of the commencement of their operations, provided that the activity has been constituted with new
investments, excluding those cases where the acquisitions of assets or rights are pre-existing. The time limit shall be counted from its registration in the Register and Special Control of Taxpayers to the Fisco;
f) The contributors of a particular sector of economic activity which due to exceptional circumstances have been affected by their operations, existing
declaration of state of public calamity and disaster by the Legislative Assembly, State of Emergency decreed, if any, by the President of the Republic, in accordance with the respective legislation, or by fortuitous case or force reasons
greater; and,
g) Taxpayers who have obtained Income taxed up to one hundred and fifty thousand dollars (US$ 150,000.00) in the exercise or period of taxation.
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For the purposes of applying the above exemptions, taxpayers must submit an affidavit using the form to be determined by the Tax Administration; for the
assumptions of exceptional economic conditions, fortuitous case or force majeure must be accompanied by the documentary evidence which credit such extremes. The tax authorities may exercise their powers to check the content of that declaration. *DECLARED
UNCONSTITUTIONAL
Minimum Payment Statement and Liquidation
Art. 79.-The taxable person will liquidate and declare the minimum income tax payment, in the same income tax return of the corresponding exercise or tax period.
DECLARED UNCONSTITUTIONAL
Payment of the Income Tax
Art. 80.-The Income Tax payable in the financial year or period of taxation shall be equal to the greater amount resulting from the comparison of the minimum income tax payment in accordance with the provisions
in Article 77, with the tax calculated on the net income in accordance with Articles 37 and 41. *DECLARED UNCONSTITUTIONAL
Credit and Return
Art. 81.-On the income tax determined in accordance with the previous article, the amounts of payment to account and deductions to which the taxable person is entitled will be credited. If the liquidation results
liquid tax in favor of the State, it must be paid within the legal period established in this Law; if there is a balance in favor of the taxpayer, it will apply the regulated in the Tax Code.
the minimum payment amount on the net asset that exceeds the Income Tax in an exercise or period of taxation and which has been paid, may be credited in future financial years or periods of taxation at the option of the taxable person against:
(a) The amount of the entire payment account of the Income Tax, until its exhaustion during the three exercises or subsequent immediate imposition periods;
and,
b) The amount of Income Tax that is liquesed during the three exercises or
subsequent immediate imposition periods.
The remainder of the minimum payment on the net asset that is not regulated as regulated
in this article, shall be considered as a deductible expense for the purposes of the Income Tax or the final settlement period in which the the time limit referred to in this provision. ' *DECLARED UNCONSTITUTIONAL
Art. 2.-incorporate Art. 132-B, between Arts 132-A and 133, as follows:
" Art. 132-B. -Exemptions in respect of Income Tax are repealed, contained
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in Article 8 of the Law of the Press, of Legislative Decree No. 12 of 6 October 1950, published in Official Journal No 219, Volume No. 149 of 9 October of the same year and its corresponding reforms.
This derogation does not apply to the exemptions set out in the book. "
Vigency
Art. 3.-This Decree shall enter into force eight days after its publication in the Official Journal.
GIVEN IN THE BLUE HALL OF THE LEGISLATIVE PALACE: San Salvador, at thirty-one day of the month of July of the year two thousand fourteen.
OTHON SIGFRIDO REYES MORALES, PRESIDENT.
ENRIQUE ALBERTO LUIS VALDEZ SOTO, GUILLERMO ANTONIO GALLEGOS NAVARRETE, FIRST VICE PRESIDENT. SECOND VICE-PRESIDENT.
JOSÉ FRANCISCO MERINO LÓPEZ, LORENA GUADALUPE PEÑA MENDOZA, THIRD VICE PRESIDENT. FOURTH VICE-PRESIDENT.
CARLOS ARMANDO REYES RAMOS, FIFTH VICE PRESIDENT.
GUILLERMO FRANCISCO MATA BENNETT, MANUEL VICENTE MENJÍVAR ESQUIVEL, FIRST SECRETARY. SECOND SECRETARY.
SANDRA MARLENE SALGADO GARCÍA, JOSÉ RAFAEL MACHUCA ZELAYA, THIRD SECRETARY. FOURTH SECRETARY.
IRMA LOURDES PALACIOS VÁSQUEZ, ERNESTO ANTONIO ANGULO MILLA, FIFTH SECRETARY. SIXTH SECRETARY.
FRANCISCO JOSE ZABLAH SAFIE, JOSE SERAFIN ORANTES RODRIGUEZ, SEVENTH SECRETARY. EIGHTH SECRETARY.
CASA PRESIDENTIAL: San Salvador, at thirty-one day of the month of July of the year two thousand fourteen.
PUBESQUIESE,
Salvador Sánchez Cerén,
President of the Republic.
Juan Ramón Carlos Enrique Cáceres Chávez,
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Minister of Finance.
D. O. No. 142 Took No. 404
Date: July 31, 2014
JQ/geg 01-09-2014
UNCONSTITUTIONALITY:
*THE CONSTITUTIONAL COURT OF THE SUPREME COURT OF JUSTICE, BY WAY OF JUDGMENT No. 98-2014, PUBLISHED IN THE D. O. No. 71, T. 407, OF 22 APRIL 2015, DECLARES ART. 77 UNCONSTITUTIONAL, BECAUSE IT VIOLATES THE PRINCIPLE OF TAX EQUITY IN ITS ECONOMIC CAPACITY-ART DEMONSTRATION. 131 ORD. 6 ° CN.-AS SOON AS IT DETERMINES THAT THE NET ASSET IS THE TAXABLE AMOUNT OF THE MINIMUM INCOME TAX PAYMENT, WITHOUT THE POSSIBILITY OF DEDUCTION OF THE COSTS AND EXPENSES NECESSARY FOR THE PRODUCTION OF THE INCOME AND THE PRESERVATION OF ITS SOURCE; AND BY CONNECTION THE ARTS. 76, 78, 79, 80 AND 81, AS SOON AS THEY LIMIT THEMSELVES TO SUPPLEMENT OR TO DEVELOP THE MINIMUM PAYMENT OF INCOME TAX, SO THAT THEY SHARE THE VICE OF CONTRAST. (JQ/21/05/15)
JQ 21/05/15
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