Fee for the use of the radio spectrum: tax or economic consideration? An analysis of the taxing power over the fee required by the peruvian State for the use of natural resources

Abstract

The purpose of this article is to analyze the legal nature of the canon fee charged for the use of the radio spectrum in Peru, an obligation imposed by the Ministry of Transport and Communications on telecommunications service operators.

Based on doctrinal, normative, and jurisprudential analysis, this article argues that the Fee does not satisfy the typical structure of a user charge tax (“tasa-derecho”). Although it is levied on the use of a public-domain asset, its enforceability is not grounded in the provision of a divisible public service or in a strictly coercive tax obligation, but rather in the granting of the exclusive right to use a natural resource that forms part of the Nation’s patrimony.

Accordingly, its structure more closely resembles a non-tax economic consideration, subject to the principles of reasonableness, legality, and the prohibition of arbitrariness, rather than to the legal framework governing taxes.