Chile: A new concept of deductible expenses

International Tax Review is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX

Copyright © Legal Benchmarking Limited and its affiliated companies 2024

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Chile: A new concept of deductible expenses

Sponsored by

sponsored-firms-pwc.png
A mere change in profitability will not, of itself, justify an exit charge

The tax authority under a formal and strict application of such criterion has rejected expenses that were perfectly reasonable from a business perspective.

In August, the Chilean government submitted to Congress a new Bill aimed at modernising the existing tax system.

One of the proposals is to amend the general requirements for an expense to be considered as tax deductible, and to introduce the new concept of special tax deductible expenses cases.

As per legislation already in force, an expense will be tax deductible provided that:

  • it is related to the business of the company;

  • it is necessary to produce taxable income;

  • it has not been deducted as part of the direct cost of goods or services of the company;

  • it is actually incurred in the relevant taxable period; and

  • it is adequately supported with appropriate documentation.

Expenses that fail to comply with the above requirements would be subject in principle to a 40% fine tax (rejected expense tax).

Even though the requirements for an expense to be tax deductible are included in the law, the practical implications of that provision derived mainly from the Chilean Internal Revenue Service (Chilean IRS) and the Chilean courts through their jurisprudence. For instance, the tax authority has construed that in order for an expense to be considered as 'necessary to produce income', it must be directly linked with the production of income, in the sense that it is mandatory/indispensable and that it cannot be avoided by the company.

The tax authority under a formal and strict application of such criterion has rejected expenses that were perfectly reasonable from a business perspective. For instance, the tax authority has defined that contractual fines would not be tax deductible as they are not indispensable or mandatory to produce income (even though they could be legally binding under a contractual arrangement) and could be avoided if the taxpayer properly complied with its contractual obligations.

Indeed, an update of Chilean tax legislation on this matter is urgently needed to provide a much clearer and reasonable legal framework for the deductibility of expenses.

The new Bill opens up discussion around this issue. According to the new requirements, an expense will be tax deductible provided it:

  • Is directly or indirectly linked to the business, including ordinary, extraordinary, habitual, exceptional, voluntary or obligatory expenses;

  • Is reasonable with respect to its amount;

  • Has not been deducted as cost;

  • Was actually incurred in the relevant taxable period;

  • Has a lawful cause and did not originate in malicious behaviour; and

  • Is adequately supported with appropriate documentation.

It will be interesting to see the Chilean Congress' position on this proposal. Furthermore, if passed in such terms, it will also be interesting to observe the tax authority's interpretation of the new requirements, particularly in reference to lawful cause or malicious behaviour concepts, which are more related to civil and criminal law and are not properly adapted for tax purposes.

The Bill is still in its early stages in Congress, and we expect an important discussion to be held around this and other topics covered therein. It is without a doubt a matter to be closely monitored in the following months.

more across site & bottom lb ros

More from across our site

ITR’s most interesting stories of the year covered ‘landmark’ legal battles, pillar two, AI’s relationship with transfer pricing and more
Chinwe Odimba-Chapman was announced as Michael Bates’ successor; in other news, a report has found a high level of BEPS compliance among OECD jurisdictions
The tool, which will automatically compute amount B returns, requires “only minimal data inputs”, according to the OECD
The rules are intended to implement the substance of an earlier OECD report in its entirety
While new technology won’t replace the human touch, it could help relieve companies’ staffing issues, EY’s David Helmer and Daren Campbell tell ITR
The firm said the financial growth came from increased demand for its AI services and global tax reform advice
Chrystia Freeland had also been the figurehead of Canada’s controversial digital services tax adoption, which stoked economic tensions with the US
Panama has no official position on pillar two so far and a move to implement in Costa Rica will face rejection, experts tell ITR
The KPMG partner tells ITR about Sri Lanka’s complex and evolving tax landscape, setting legal precedents through client work, and his vision for the future of tax
Overall turnover at the firm also reached a record £8 billion; in other news, Ashurst and Dentons announced senior tax partner hires
Gift this article