Key Benefits:
LEGISLATIVE ASSEMBLY-REPUBLIC OF EL SALVADOR ____________________________________________________________________
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DECREE NO 236
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 No. 313 of 21 the same month and year, the Income Tax Act was issued.
II. Legal businesses at national and international level have evolved, so that the national legislation on income tax has been outdated in terms of control of the same, which generates possibilities of tax avoidance. on the part of the taxpayers who adopt them, thereby affecting the income of the state coffers.
III.-That the Tax Administration in the exercise of its control and control powers has detected a growing practice oriented to the undue deduction of costs and expenses.
IV.-That the principle of generality in Taxation leads to the participation of all contributors with contributory capacity in the sustainability of public expenditure, under which modern tax systems must be geared towards controlling the tax compliance of all the taxpayers, to the effect that the duty to contribute is concretized in the subjects that possess contributive ability.
V.-That for the reasons explained, it is necessary to introduce reforms to the Law of Income Tax, that they allow control of these new ways of doing business and producing the tax participation of segments of contributors who have been using the regulatory lack of certain situations as a means to reduce their tax participation.
BY TANTO,
in use of their constitutional powers and at the initiative of the President of the Republic, through the Minister of Finance,
DECRETA the following:
REFORMS TO THE INCOME TAX LAW ISSUED BY LEGISLATIVE DECREE Nº 134, DATED DECEMBER 18, 1991, PUBLISHED IN THE OFFICIAL JOURNAL No. 242, TOO #
313, OF 21 SAME MONTH AND YEAR:
Article 1.-Add a final paragraph 3 as follows:
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" For the purposes of the above number, the value of the assets other than the money, the value of the assets held for their predecessor at the date of entry into the assets of the taxable person, shall be deemed to be the value of the recibibe and as the date of acquisition the latter. If the value referred to is not possible, the taxable persons shall value it at market price, which may be checked by the Directorate-General for Internal Revenue. "
Article 2.-Reform Article 4 (5), (11), (12) and (13), and call the number (14) of that article, in the order and as follows:
" 5) Interest, prizes and other earnings that come directly from the deposits in financial institutions supervised by the Superintendency of the Financial System, associations and cooperative societies of savings and credit, as well as in their respective Federations, provided that the taxable person has benefited income is a natural person domiciled in the holder of the deposits and the average monthly balance of the deposits is less than twenty-five thousand dollars (USD 25,000.00) of the United States of America. "
" 11) Interest from credits awarded abroad by:
a) International organizations; foreign governments ' development agencies or institutions; foreign governments; and corporations or utility foundations (b) Public domiciled abroad duly legalized by competent authorities of their country of origin whose non-profit-making nature is found in their constituent act and qualified by the Central Reserve Bank.
b) Investment, Private Fund Managers, Public or Private Specialised Funds, registered abroad, duly legalized by competent authorities in their country of origin and qualified by the Central Reserve Bank, destined for cooperative associations of savings and credit, corporations and foundations of law public and public utility, which are dedicated to the provision of financing to the micro and small enterprise.
The General Directorate of Internal Revenue and the Central Reserve Bank, together, will develop the necessary instrument, which will include the procedure and requirements to ensure compliance with the purpose of the exemption regulated in this numeral. "
" 12) The product, profit, profit or profit obtained by a natural person in the sale of his first room house and the transaction value does not exceed seven hundred and twenty-three minimum wages, provided that he does not dedicate himself customarily to the sale or swap of buildings. "
" 13) The profits or dividends and the units or results for the partner, shareholder, associate or participant that receives them, whether natural or legal person; provided that the taxable person who distributes them has declared and paid the Corresponding Income Tax, even if they come from capitalization. "
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"14) Repealed."
Article 3.-Add the literal (d) to the first paragraph of Article 5, and add a final paragraph to that article, in the order and as follows:
"(d) The irregular or de facto societies and the Union of Persons."
"For the purposes of this law, it shall be comprised of related subjects; countries, states or territories with preferential tax regimes of low or zero taxation or tax havens, as regulated in the Tax Code."
Article 4.-Intercalase between Articles 14 and 15, Article 14-A, as well:
Rents from securities securities
" Art. 14-A.-Utilities, dividends, prizes, interest, income, net income of capital or any other benefit obtained by a natural person domiciled, in securities investments and other financial instruments, shall be subject to the Tax established in this Law at a rate of ten per cent, which will be settled separately from other income; if, in respect of the aforementioned income, the respective deductions are made, they must not be declared, constituting the withholding tax final payment of the tax.
The tax will be paid within the same time as the the taxable person is required to submit the affidavit of the Income Tax for the corresponding financial year or period of taxation, together with that declaration the form of calculation of the capital income, which must be filled with the requirements and specifications provided by the General Directorate of Internal Revenue.
When the income comes from the transfer or transfer of one or more securities securities, to determine the outcome, the value of the transfer shall be reduced transaction, the cost of such titles, subject to the following rules:
a) The value of the transaction shall be the price agreed by the parties, which may not be less than the price of the listing on the Stock Exchange at the date of disposal, or the book value of the issuer of the title if there is no listing price.
(b) The amounts to be deducted from the transaction value shall be the cost of acquiring the title plus the costs necessary to carry out the transaction. If several securities are held, the acquisition cost shall be determined on the basis of weighted averages, dividing the sum of the acquisition costs of the securities between the total number of securities acquired, even if only one part of the them. The average will be applied for titles of the same species.
c) If the result is positive it will constitute capital gain, and if it is negative it will constitute capital loss, which can only be compensated by capital gains of securities. securities or other goods, obtained in the financial year or period of taxation in which the losses occurred or in the following five immediate years, provided that the loss
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has been declared and registered.
The rules of the previous paragraph regarding the capital gain of securities securities are also applicable to taxable persons other than natural persons.
They shall not be subject to tax the dividends which are set out in the provisions of Article 4 (13) of the Law.
When the income comes from securities and other financial instruments abroad and is nominally obtained by Salvadoran individuals domiciled in the country, they will be taxed, and must be observed in This is the case with the same rules laid down in Art. 27 of this Law.
Foreign-generated capital losses from securities transactions, nominally, will be deductible from capital gains made in those securities. transactions made abroad, without prejudice to the rules of non-deductibility
In case the loss of capital generated abroad exceeds the capital gain obtained abroad, the balance may be used within the next five years against future capital gains. obtained abroad, provided that it is declared on the form that the General Directorate of Internal Revenue provides for this purpose.
Article 5.-Intercalase between the third and fourth points of Article 16 two points, in the order and the following way:
" We consider income obtained in El Salvador the results, profits, income or interest arising from rights and obligations arising from securities, financial instruments and derivative contracts, where any of the following circumstances occur:
a) The issuing entity is a national or
b) The capital is invested or placed in the country.
c) The assumed risk is located or located in the Salvadoran territory. "
"Location or location shall also be considered to be configured if the subject who obtains such results or returns is a resident in the country or an establishment or branch domiciled for tax purposes."
Article 6.-Reform the final paragraph of Article 17, as follows:
" The natural person required to keep accounting, shall use for the calculation of his income, the system of accumulation applicable to persons legal. Natural persons who are not required to carry out formal accounting may choose to use the accumulation system for the computation
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of their income; for which they will record the operations in auxiliary accounting records and inform the Directorate General of Internal Revenue in the months of November and December of the exercise of imposition prior to the financial year in which it will be adopted. The system of cumulation shall not be changed. '
Article 7.-Incorporate Article 27, as follows: Rents from deposits
Art. 27.-Natural persons who obtain income from interest, prizes and other profits that come directly from deposits in financial institutions supervised by the Superintendence of the Financial System, cooperative associations or cooperative societies of savings and credit, as well as in their respective Federations, domiciled in the country, are obliged to pay ten percent of the Income Tax; which will be settled separately from the other income; if the respective retentions have been made to them according to the rules of the article 159 of the Tax Code, must not be declared, constituting the withholding tax paid.
The natural persons domiciled in El Salvador must declare in the Republic of El Salvador the income they obtain by deposits in foreign financial institutions, even if they have paid Income Tax or other tax of the same kind in the country, state or territory in which they obtained them; if they have not paid tax abroad, they shall be taxed 10 percent in the Republic of El Salvador. If the tax rate or the proportion of the tax paid abroad is less than the rate of ten per cent, the rate difference must be applied to those income and the corresponding tax must be paid within the statutory period. It will not be subject to refund, credit or deduction of the tax paid abroad in excess of the Salvadoran rate.
The Salvadoran taxable persons other than natural persons, must also declare the income in the Republic of El Salvador that they obtain by deposits in financial institutions from abroad, even though they have paid Income Tax or other tax of the same nature in the country, state or territory in which they obtained them and proceed as follows:
a) If the rate applicable abroad to deposit rents is lower than the ordinary rate regulated in the Republic of El Salvador, such income must be included in the calculation of the Income Tax, and the total or proportional tax, corresponding exclusively to the same, that would have been cancelled, in order to pay the tax for the difference in the tax.
b) If the income from deposits obtained holds abroad the quality of non-taxable, exempt or untaxed, the net income resulting from them, must be added to the net income or taxable income obtained in the territory of the Republic of El Salvador and pay the respective tax.
c) If the regulated abroad is equal to or higher than the one that is to be applied in the Republic of El Salvador, the income from deposits referred to in this paragraph shall not be included for the calculation of the Income Tax; in such case, Income shall only be declared within the legal period as non-taxable income.
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The Salvadoran taxable person to check the amount of the payment of the tax abroad, will be obliged to present to the Tax Administration the document that has been issued to him in attention to the legislation of the foreign country in which made the payment.
The Financial Research Unit attached to the Prosecutor General of the Republic, shall inform the Directorate General of Internal Revenue on a monthly basis of the data of identification of the subjects and transactions originating from the outside, obtained in accordance with the provisions of Article 13 of the Law Against Money Laundering and Assets, in any means even electronic.
Article 8.-Add to Article 29 a paragraph for each of the numerals (1), (4) and (5); interleave between the second and third subparagraphs of the numeral (11) of the referred to in Article 1 (2) of the Treaty and Article 4 (1) of the Treaty, following way:
" Are not included within this item the disbursements that are offered to customers and employees and other expenses of a similar nature, such as air tickets, cable services, club fees, jewelry, apparel clothing, which are not necessary for the production of the income or the preservation of its source. "
"The deduction for this concept shall be made in proportion to the time that the leased goods have been used in the production of taxed income, with the exception that their use is for seasonal activities."
" Dealing with taxable persons natural persons, this deduction will only be accepted up to 50% of the respective premium, when the room house owned by the taxable person is insured, and is partially used for the establishment of the company or office directly related to obtaining the income. "
" To determine the cost of sales, the method of valuation adopted in accordance with the provisions of Art. 143 of the Tax Code must be used. Stocks or inventories of start and end of the financial year or tax period shall be kept in accordance with the records of the Inventory Control Register and the minutes referred to in Article 142 of the Code referred to above. The differences in the cost of sales, when the obligations referred to in this paragraph are not met, shall not be deductible from the income. "
" Regarding the costs and expenses mentioned in this article, incurred in manufacturing, manufacturing, production or any activity that involves the processing of raw materials into finished products, will not be deductible at the time of their payment or accrual, but shall be accumulated on a pro rata basis according to the cost systems, methods and techniques adopted by the taxpayer to establish the cost of production, production, extraction, construction or the like, and shall be deducted in the the finished products are sold, used or consumed in the operations Income-generating income. What shall be checked by the taxable person. '
Article 9.-Reform numerals (3), (6), (14), (16) and (20) of Article 29-A, also add a second subparagraph to numeral (10), two points (18) and (21), (22), (23) and (24) to the said article, in the order of their number. and as follows:
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" 3) The sums in return on capital invested, securities, withdrawals
or advances on account of earnings, paid to:
a) Partners or shareholders of a company, their spouses or their family members;
b) Holder of a commercial enterprise, its spouses or their family members.
Except that it is effectively established that the capital has been invested in the source of the taxable income. "
" 6) The amounts invested in the acquisition of real estate or rental housing; purchase, import or hospitalization, lease, maintenance, improvement or repair of vehicles; as well as the acquisition, import or hospitalization fuel, lubricants and spare parts for the same, for the use of the taxpayer, partners or shareholders of all types of companies, directors, representatives or proxies, advisors, consultants or executives of the taxpayer, or for the family members of the above subjects, provided that such goods do not directly affect the source of income. "
" In no case shall losses arising from acts or operations carried out between related subjects, or with persons or entities resident or domiciled in countries, states or territories with preferential tax regimes, be deductible, of low or zero taxation or tax havens. "
"14)" Interest, commissions and any other payment from financial, insurance or reinsurance operations held by the taxable person, in any of the following cases:
a) Withholding tax on Income or Tax on the Transfer of Furniture and Services established in the Tax Code, where applicable.
b) The lender or provider is a related subject (a) he or she has not declared them as income taxed in the financial year or period of his or her accrual.
c) The result of applying to loans or loans is exceeded, the average rate of active interest on credits plus four additional points and the lender is a related subject or is domiciled, constituted or located in a country, state or territory with preferential tax regime, low or zero taxation or tax haven.
The average rate referred to in the preceding paragraph is the reference to loans or loans to companies applied by the Financial System. and published by the Central Reserve Bank.
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(d) The lender or provider of insurance or reinsurance services is a related subject or is domiciled, constituted or located in a country, state or territory with preferential tax regime, low or zero taxation or tax haven and the debt for credit, insurance or reinsurance transactions exceeds the result of multiplying by three times the value of the average book capital or equity of the borrower.
For the purposes of the preceding paragraph, the average book capital or equity is the ratio to be obtained from divide between two, the sum of the existing equity or accounting capital at the beginning and end of the year of the borrower.
The rules of non-deductibility with respect to indebtedness established in this literal shall not apply to taxable persons. which are obliged to comply with rules on indebtedness contained in other bodies and be subject to supervision by the Superintendence of the Financial System. Likewise, these rules shall not apply to the Cooperative Societies of Savings and Credit and their respective Federations. "
"16) Costs or expenses related to the acquisition or use of goods or use of services that are not necessary for the production of taxable income or in the conservation of the source."
" For the purposes of the preceding subparagraph, the financial figures at the end of each period or year, which are reflected in the various accounts and sub-accounts of the legal and ancillary books or special registers, in addition to the Financial and their respective notes and annexes shall be deemed to be final and may not be amended by the taxable person unless such amendment has been certified by the Public Accountant authorized by the Supervisory Board of the Profession of the Public Accounting and Audit. In the case where the taxable person is obliged to appoint an external auditor, it shall be the person who must carry out the said certification in which the compliance with the accounting principles and standards applicable in El Salvador is recorded. commercial and tax requirements. Where the taxable person is not required to appoint a financial external auditor, but is obliged to appoint an auditor to deliver an opinion and a tax report, the latter may be certified by the latter, who shall record it in the opinion and the tax report issued, and must attach to the report the certification of the modification for presentation within the time limit set out in Article 134 of the Tax Code. The certification shall be established in compliance with the audit standards authorized by the Board of Directors of the Public Accounting and Audit Office. "
The Public Accountant is obliged to display and provide the information and working papers when required by the General Directorate of Internal Revenue, in the exercise of its powers. "
" 20) Sanctions, fines, surcharges, delinquent interests, criminal clauses and other similar penalties, to be paid by court, private agreement or any other means of conflict resolution. The compensation or refunds actually made to clients, in compliance with regulations established by regulatory entities, or also those compensation or refunds, are exempted from this provision
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which are the product of the arbitration process which such regulators establish and which are inherent in their rotation or activity, provided that the securities cleared or returned have been declared as income taxed by the taxable person who pays them. "
" 21) The loss resulting from the acquisition cost and the sale value of realisable assets in the state of impairment, maturity, expiration or the like. They are not included in this provision, those goods with defects or breakdowns which are the result of the production process and which are subsequently actually sold. "
"22) Costs shall not be deductible for penalties or provisions of any nature contained in accounting principles and standards or rules issued by regulatory entities, which this Law does not expressly allow for its deduction."
" 23) Procurement of goods or use of services, the amounts of which are equal to or greater than twenty-five minimum monthly salaries that:
i) Do not be made by means of check, bank transfer, credit cards
or debit.
ii) The means of payment is different from the cash and means used in the Roman (i), and are not formalized in written contract, public deed or other documents that regulate civil or commercial law, such as: permutas, mutual non-cash goods, payment of payments, transfers of title of domain of goods, compensation of debts or accounting operations. '
"24) Deductions that are not expressly contained in this Law."
Article 10.-Add a third indent to Article 31 (1) and reform the first, second and third points of the numeral 3) and add a final paragraph to that number 3), in the order and as follows:
" When the Legal Reserve is diminished in an exercise or period of imposition by any circumstance, such as capitalization, application to losses of prior years or distribution, shall constitute income taxed for the company, by the amount that was deducted for the purposes of Income Tax in financial years or periods of taxation prior to its reduction, by selling separately from ordinary income, at the rate of 25% (25%). For such purposes the company shall keep a record of the legal reserve constitution and the amount deducted for the determination of net income or taxable income in each financial year or period of taxation. "
" 3) Treatment for the establishment of reserves for the consolidation of non-performing accounts and reserves of extraordinary assets by banks, insurance companies, credit institutions and authorized persons According to the Law of Cooperative Banks and Savings and Credit Societies, it will be proposed by the Superintendency of the Financial System to the Directorate General of Internal Revenue, with its definitive approval for tax purposes as a faculty Private of such Management
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General. "
"Any reservation that the contributors referred to in this numeral, which has not been proposed by the Superintendence of the Financial System and approved by the General Directorate of Internal Revenue, will not be deductible."
" In no case shall they be deductible:
(a) The uncollectible accounts and the reserves of extraordinary assets, which have been deducted in previous financial years.
b) The consolidation reserves constituted during the financial year or period of taxation on loans or loans classified as normal, normal declining and subnormal according to rules of the Superintendency of the Financial System or the equivalent classification as that institution set. This procedure shall be established in accordance with the Guidance Guide issued in accordance with Article 27 of the Tax Code. Any consolidation reserve not deducted in an exercise or period of taxation shall be considered as non-taxable income in the year following that of its constitution.
c) Sanitation reserves constituted on contingencies.
(d) reserves of extraordinary assets, for the amount of the amount of the uncollectible account consolidation reserve transferred for its constitution. "
" The Banks, Insurance Companies, Credit Institutions and the subjects authorized according to the Law of Cooperative Banks and Savings and Credit Companies, will have to carry the records and accounting and computer controls of the loans or loans to which the treatment for the deduction of the consolidation reserve laid down in this numeral shall apply. '
Article 11.-Add numerals 5) and 6) to Article 32 as follows:
5) Fees or contributions to trade unions, associations, foundations or guilds of workers, provided that such entities:
a. They are excluded from the payment of the tax in accordance with Article 6 of this Law.
b. Bear the fee or contribution in documents containing the correlative numbering authorized by the Tax Administration and have informed the values received by the quotas or contributions, according to the provisions of the articles 115 -A and 146 of the Tax Code.
c. Quotas or contributions are used exclusively for the cultural well-being of workers or the defence of their labour rights.
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6) The employer's contribution paid by natural persons to the Salvadoran Social Security Institute, corresponding to the domestic worker. Likewise, the labor quota paid to the institution shall be deductible, on account of the worker, when it is supported by the employer.
Article 12.-Reform Article 53 as follows:
Art. 53.-The amounts that have been withheld from the non-domiciled taxable persons are presumed to constitute taxes paid and will pass to the General Fund of the Nation, therefore they are not required to file the tax declaration on the Income.
Non-domiciled persons who have obtained income in the country, and who have not been held to hold a withholding tax either for non-compliance with the agent, because there is a rule that I did not think to carry out the respective withholding tax or not there is an obligation to withhold, the respective declaration must be submitted within the legal period corresponding to the payment of the said income and the respective tax. Article 13.-Incorporate Article 126 as follows:
The regulations regarding non-deductions contained in Article 29 (1), (4), (5), (11) and (3), (6), (16) and (20) of Article 29 (a) This law is incorporated for the purpose of facilitating the application of the rules and does not constitute new rules of non-deduction. TRANSITORY Article 14.-Financial institutions domiciled abroad that have had ratings granted by the Central Reserve Bank within the year 2009 and that, at the time of the entry into force of this Decree, the countries, States or territories in which they are domiciled do not have in their legislation legal measures to eliminate the respective double taxation or have not subscribed, and ratified Conventions to avoid the double taxation of the tax on Income with the Republic of El Salvador, which effectively allows them to eliminate double taxation for the tax paid on interest for loans granted in the country, either by way of tax credit or exemption; they will continue to enjoy the exemption from the Income Tax and obtain annual ratings granted by the Bank Central Reserve until the countries, states or territories in which the referred financial institutions are located have in their legislation legal measures to eliminate double taxation or subscribe and ratify Agreements to avoid the Double Taxation of Income Tax with the Republic of El Salvador Salvador.
Financial institutions domiciled, located or incorporated in countries, states or territories with preferential, low or zero taxation or tax havens are excluded from the provisions of the foregoing paragraph. According to the provisions of the Tax Code, those who will be subject to the payment of the Income Tax and the withholding tax established in the aforementioned Code, starting from the validity of this Decree and after the end of the term of the qualification granted by the Central Reserve Bank, if it has enjoyed the latter.
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The Ministry of Finance for the purpose of facilitating the application of this provision will publish on its website or electronic site, in accordance with international standards, the list of countries, states or territories that count in their legislation with measures to avoid double taxation or have signed, and ratified Conventions to avoid the Double Taxation of Income Tax with the Republic of El Salvador.
Article 15.-For the purposes of the application of the non-deduction of the reserves for the consolidation of bad accounts constituted on loans or loans classified as normal, normal declining and subnormal according to rules of the Superintendence of the Financial System, at the entry into force of this Decree, the Banks, Insurance Companies, Official Credit Institutions and the subjects authorized according to the Law of Banks Savings and credit cooperatives and companies shall consider as taxable income the release of sanitation reserves related to those loans or loans, which would be deducted from the income obtained in the tax year prior to the validity of this Decree. This procedure will be established according to the Guidance Guide issued in accordance with Article 27 of the Tax Code.
Vigencia
Article 16.-This Decree shall enter into force from 1 January of the year two thousand ten, after publication in the Official Journal.
GIVEN IN THE BLUE HALL OF THE LEGISLATIVE PALACE: San Salvador, at the seventeenth day of December of the year two thousand nine.
CIRO CRUZ ZEPEDA PEÑA, PRESIDENT.
OTHON SIGFRIDO REYES MORALES, GUILLERMO ANTONIO GALLEGOS NAVARRETE, FIRST VICE PRESIDENT. SECOND VICE-PRESIDENT.
JOSÉ FRANCISCO MERINO LÓPEZ, ALBERTO ARMANDO ROMERO RODRÍGUEZ, THIRD VICE PRESIDENT. FOURTH VICE-PRESIDENT.
FRANCISCO ROBERTO LORENZANA DURAN, FIFTH VICE PRESIDENT.
LORENA GUADALUPE PEÑA MENDOZA, CESAR HUMBERTO GARCIA AGUILERA, FIRST SECRETARY. SECOND SECRETARY.
ELIZARDO GONZÁLEZ LOVO, ROBERTO JOSÉ D' AUBUISSON MUNGUÍA, THIRD SECRETARY. FOURTH SECRETARY.
SANDRA MARLENE SALGADO GARCIA, IRMA LOURDES PALACIOS VÁSQUEZ, FIFTH SECRETARY. SIXTH SECRETARIAT.
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MIGUEL ELIAS AHUES KARRA, SEVENTH SECRETARY.
CASA PRESIDENTIAL: San Salvador, at twenty-one day of the month of December of the year two thousand nine.
PUBESLOSE, Carlos Mauricio Funes Cartagena, President of the Republic.
Juan Ramón Carlos Enrique Cáceres Chávez, Minister of Hacienda.
D. O. No 239 Took No 385 Date: 21 December 2009.
SV/Adar. 12-1-2010
