As from January 1st of this year, the Financial System Companies (ESF) are obliged to report monthly to the National Superintendence of Customs and Tax Administration - SUNAT, the balances, accumulated amounts and/or yields generated equal to or greater than ten thousand soles (or its equivalent in US dollars or other foreign currency), both of individuals and legal entities, with respect to each of their accounts in the financial system. This was established by Supreme Decree No. 430-2020-EF[1] and its Annex[2], by which the referred measure was approved.
As we know, the aforementioned Supreme Decree is based on Legislative Decree No. 1434[3], which had as one of its objectives to amend Article 143-A of Law No. 26702[4], in order to perfect the already recognized assumption of the provision of financial information by the SFEs to SUNAT, respecting the rights and principles set forth in the Political Constitution of Peru, including banking secrecy.
The purpose of this article is to explain whether the measure that obliges the Financial System Entities to inform SUNAT about the passive operations carried out by their clients for amounts equal to or greater than S/. 10,000.00, is constitutional or violates the right to banking secrecy.
As we know, the right to banking secrecy is set forth in numeral 5 of Article 2 of our Constitution, stating that such secrecy and tax secrecy may only be lifted at the request of a judge, the Attorney General or a congressional investigative committee in accordance with the law and provided that they refer to the case under investigation.
On the other hand, we know that the Constitutional Court -in several rulings- has concluded that rights (such as bank secrecy, for example) are not absolute, but relative. Specifying that, in order to determine the level of intensity of an alleged violation of such right or whether such violation is justified or not in constitutional terms, it will be confronted with the Principle of Proportionality.
The Judgment or Principle of Proportionality makes it possible to establish whether the "limiting" measure pursues a constitutional purpose, whether it is suitable with respect to the intended purpose, whether it is necessary because there is no reasonable alternative that is less restrictive of the right invoked and equally effective and, finally, whether the sacrifice demanded on the right claimed is adequate and strictly proportional in relation to the purpose pursued.
For its part, the Constitutional Court, as the highest interpreter of our Constitution, when referring to banking secrecy, has stated that:
"The constitutional protection afforded by banking secrecy seeks to ensure the reserve or confidentiality -both terms used here as synonyms- of a sphere of the private life of individuals or legal persons under private law. Specifically, the necessary confidentiality of the banking operations of any of the subjects described that they may carry out with any entity, public or private, belonging to the banking or financial system.
In this sense, banking secrecy is part of the constitutionally protected content of the right to privacy, and its holder is always the individual or the legal person of private law that carries out such banking or financial operations. To the extent that such banking and financial operations are part of the private life, their knowledge and access can only be lifted at the request of the judge, the Public Prosecutor of the Nation or a Congressional Investigation Commission in accordance with the law and provided that it refers to the case under investigation. Unlike what happens with public information, in which the rule is its publicity and transparency, and the exception is secrecy, in the case of information related to the private life of a person, the rule is always secrecy or confidentiality, while its publicity, subject to an intense control under the test of reasonableness and proportionality, is the exception" [5].
In tax matters, this is not the first time that the constitutionality of a rule related to the "violation" of banking secrecy has been debated. It should be recalled that the Constitutional Court ruled in Case No. 0004-2004-AI/TC regarding the Financial Transaction Tax. In said Decision, it was stated that banking secrecy is a derivation of the right to privacy but allows restrictions or limitations, as long as they are respectful of the Principles of Reasonableness[6] and Proportionality; it also added that the banking right is not part of the essential content of the right to personal privacy.
According to the various pronouncements of our highest interpreter of the Constitution, in order to determine whether Supreme Decree No. 430-2020-EF would have a constitutionally legitimate purpose or whether, on the contrary, it violates the right to banking secrecy, the Principles of Reasonableness and Proportionality would have to be applied.
That is to say, it is necessary to apply a weighting test in order to demonstrate whether the measure implemented by the referred decree is the least restrictive of the universe of measures that could have been adopted; and to ensure that such measure is necessary to achieve the collective good (improve control and inspection actions by SUNAT), or whether, on the contrary, there are other measures equally adequate and lacking in harmful consequences for banking secrecy.
In order to resolve these questions, it is appropriate to mention grounds 41 et seq. of the Judgment issued under Case No. 0004-2004-AI/TC, in which the Constitutional Court stated that:
"...Being the access to information directly related to activities taxed by the FTT, whose time of validity is considerably limited, the restriction of banking secrecy that access to such information implies, is, as an immediate consequence, also temporarily limited, so that the institution is not restricted beyond what is reasonably necessary.
The last paragraph of Article 17 of Law No. 28194 requires financial institutions to also provide information on tax-exempt transactions.
This attribution granted by the challenged norm to the Tax Administration is what motivates the plaintiff to argue that: "(...) the true interest of the State is not to know the tax base of the Tax, but to have access, unduly, to the financial information of the citizens, contrary to the provisions of the Constitution on this matter.
Therefore, for this Court, the last paragraph of Article 17 of Law No. 28194 is incompatible with the principle of reasonableness, since, by granting SUNAT knowledge of operations in the financial system exempted from the FTT, without the intervention of a judicial decision, the Attorney General or a congressional investigative committee, the logical link that sponsored the intervention of the competent tax entity, i.e., the existence of a taxable operation, is broken.
In accordance with the aforementioned grounds, the Constitutional Court is of the idea that there is an enabling assumption to allow SUNAT to access the financial information of taxpayers, this is configured with the existence of a taxable transaction. In addition, the referred tax must have a time limit in the legal system.
From the foregoing, we have that unlike the Financial Transaction Tax, Legislative Decree No. 1434, Supreme Decree No. 430-2020-EF and its Annex do not create and/or apply a tax on passive operations carried out by the clients of the Financial System Companies, but rather they are rules -without any time limit- that enable the simple transfer of information from the financial entities to SUNAT, which violates the fundamental right to banking secrecy.
Likewise, the Constitutional Court indicated in Ground 43 of the aforementioned Ruling that by breaking the relational link between the application of a temporary tax (the FTT) and the transfer of information to SUNAT to which such application gives rise, the last paragraph of Article 17 of Law No. 28194 affects the subprinciple of necessity corresponding to any test of proportionality, since it would imply that the possibility for SUNAT to administer information protected by bank secrecy would be extended indefinitely. In view of this, the Collegiate considered the last paragraph of article 17 of Law No. 28194 unconstitutional, for affecting the Principles of Reasonableness and Proportionality.
In this sense -by all means- and following the reasoning put forward by the Constitutional Court, we conclude that Supreme Decree No. 430-2020-EF violates the fundamental right to banking secrecy, since it empowers SUNAT to be informed of operations that do not imply a relational nexus of "Tax - transfer of sensitive data".
However, the recent regulation of Legislative Decree No. 1434, which resulted in the introduction of Supreme Decree No. 430-2020-EF to our legal system, is due to the fact that Peru recently (December 2020) passed the security and confidentiality examination of the Organization for Economic Cooperation and Development (OECD), which seeks to ensure that the receipt of our financial information will be safeguarded with first class international standards.
Although the Peruvian commitment to join an international system that has minimum standards -among others- to combat tax evasion and avoidance is applaudable, in no case can it mean that it violates the provisions of our Magna Carta.
On the other hand, there is a fear that this measure may affect the security of taxpayers, either through hackers or SUNAT officials and/or government officials themselves, who could misuse such information.
On the other hand, it could cause people to stop using the financial system, which could lead to an increase in crime and informality.
Leaving aside the constitutional issue, we consider that the legislator should have taken other more suitable measures to combat tax evasion and/or tax avoidance -such as broadening the tax base- since the FTT information is sufficient to administer the taxes collected by SUNAT.
(*) About the author: associate of the tax area of Benites, Vargas y Ugaz Abogados.