Between two worlds: the fiction of acquisition by the undivided estate and its impact on the determination of income tax on capital gains from the transfer of real property

Abstract

This article examines the tax treatment of the undivided estate (sucesión indivisa) under Peruvian law in the context of capital gains taxation arising from the transfer of real property under Peruvian Income Tax Law. Through a doctrinal, statutory, and case law analysis of the civil law rules governing succession and the applicable tax provisions, the study demonstrates the absence of an express statutory regulation defining the essential elements of the taxable event in such cases.

Against this background, the article critically examines the use of subordinate regulations and administrative interpretations that have attempted to fill this legislative contradiction by constructing taxable events through the characterization of the undivided estate as an entity capable of acquiring ownership of immovable property and subsequently transferring such ownership to the heirs. It argues that these constructions infringe the principle of legality in taxation by establishing substantive elements of the tax obligation without statutory authorization and by unjustifiably departing from the civil law regime governing the acquisition of property.

The article also analyzes relevant decisions issued by the Tax Court and the Supreme Court, highlighting both their contributions and their shortcomings in addressing the issue. Finally, it proposes a constitutional interpretation that recognizes the applicability of the civil law rules on succession within the tax system and underscores the need for legislative reform to define the limits of the classificatory autonomy of tax law.