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Francisco Pantigoso: "Tax legislation should be a consequence of economic reality”
October 07 , 2021
Gestión newspaper conducted an interview with Francisco Pantigoso, professor of Law at Universidad del Pacífico on the occasion of the 150th program of "Consultorio Tributario" (Tax Advice).
What does it mean to reach 150 programs of the "Consultorio Tributario" podcast?

Reaching 150 programs is achieving a goal that seemed distant. It means having been able to disseminate, in the simplest possible way, aspects that are usually labeled as complex or highly specialized. 

In my opinion, Tax Law should not be the exclusive domain of a "lodge of experts", but should be extended to the whole community, so that it can make the best choice among the legal concepts and not fall into contingencies, thus avoiding simulation and elusion, concepts that are justly fought against today. 

I remember that when I studied Law at PUCP, there was already a great prejudice against studying taxation or specializing in it; it was labeled as a quasi "esoteric" aspect, "very accounting" and full of "mathematical subject matter". These false perceptions should be banished. 

The purpose of these programs has been for the ordinary citizen to learn about tax news, and/or become aware of the constitutionalized tax principles and the risks to be avoided, through simple and didactic explanations, always putting ourselves on the side of those who will listen to us, so that there is finally an awareness of compliance, but also to generate a critical view of the legislation and what should be changed. 

It is not just a matter of assenting to the rules, but also of questioning them to try to make them fairer and more equitable. 

If we have been able to achieve this -as a grain of sand- through the program, that encourages us to continue supporting taxpayers, especially those without any answers to their concerns, without external advice or minimum tax knowledge. 

After so many programs, what do you think of our tax legislation? 

Taxation should be a basic balance between the taxpayer's obligations and the Administration's rights. And this can only be achieved with a regulation that simplifies the rules and fully respects Article 74 of the Constitution through the principles of legality, equality, non-confiscation, and respect for the individual's fundamental rights. 

This would prevent, for example, unnecessary non-compliance, pro-fiscal interpretations, a clearly perceived eagerness of the Administration to collect taxes, and a failure to remember that the taxpayer must be left to breathe economically, since taxes should only be levied on the taxpayer's freely available surpluses, respecting the taxpayer's capacity to pay. For example, if a tax debtor were to sell their assets or take out loans to pay a tax, this would have to be reviewed, as it would probably be an unacceptable dispossession in many cases. 

But what reality do we have in sight? For example, in labor income, seven fixed UITs (Tax Units) are maintained, which would not respect the different economic capacity of the subjects; new taxes are created such as the "Participation in land value" that would be duplicating the Property Tax; there is a VAT that is not deferred in its payment to more months (and this benefit is only applied to the MSEs); an anti-technical ITAN (Temporary tax on net assets) persists; there is legislation on sub-capitalization with absurd ceilings; very high fines that encourage many to leave the formal sphere are in force; there are assumptions enabling extensions in the audit and in the review of the presumptive basis that are eminently subjective; there are ceilings on business IR (Income tax) expenses that do not respect the line of business and/or the special needs of each taxpayer; solutions to collection, which always seek the easy measure, such as the creation of new taxes, etc., are proposed. 

What should then be modified in the national tax legislation? 

Tax legislation should be a consequence of the economic reality experienced by the business manager, especially the micro-entrepreneur. 

For fair taxation, the taxpayer base should be expanded once and for all, but it should also be felt that the State accompanies the formal debtor in their hazardous path in the midst of a pandemic that continues to hit their pocket hard. 

Tax collection often increases due to the misleading sales rates of large companies that benefit from extra-fiscal factors, but not due to the contribution of the MSEs that constitute the majority of the fiscal activity in our country; a group that must be preserved, educated and supported.

In this sense, it is necessary to simplify taxes, avoid new taxes, review whether exemptions can be justifiably repealed, and specify that situations where there is evasion (such as digital services and VAT), among other aspects, should be taxed. 

The problem is that the taxpayer has the perception that they are being pursued, that there is no humanism in taxation, and that the only aim is to coercively enforce debts that they have the right to question, thus having their constitutionally protected right of defense respected. 

All these critical aspects seek to be addressed in the "Consultorio Tributario" podcast, and these 150 programs actually become a tribute to the taxpayer who, without constant voice and support, needs to know the rules in order to comply well and effectively, in favor of the country's future.

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