Chile: Digital services tax, technological assessments and data protection

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: Digital services tax, technological assessments and data protection

Sponsored by

sponsored-firms-pwc.png
The complexity of digital tax continues to grow.

Sandra Benedetto and Jonatan Israel of PwC Chile explore the continuing clash between technological innovation, data protection and legal regulation in Chile.

In the context of the new digital services VAT provisions (DST) contained within the Chilean tax reform bill currently under discussion in Chilean Congress (the Bill), there are certain aspects that raise questions regarding the interaction between personal data, how its protection is regulated in Chile, and the manner in which the Chilean Internal Revenue Service (IRS) will be using taxpayers’ data in its assessment.



To put the discussion in context, it is relevant to note that Chilean VAT applies to certain services that are rendered or utilised in Chile. In the case of services rendered digitally, the Bill proposes to add new connection factors to determine whether a service rendered digitally is utilised in Chile (hence when the new VAT on DST will apply), and it does so in the manner of legal assumptions.



A service rendered digitally is presumed to be utilised in Chile if two of the following four situations occur together: (i) the Internet Protocol (IP) address of the device utilised by the user or other geolocation mechanism indicate the user is in Chile; (ii) the bank card, current account or any other means of payment used for the payment is issued or registered in Chile; (iii) the address stated by the user for invoicing or payment vouchers is located in Chile; (iv) that the subscriber identity module (SIM) of the mobile phone through which the service is received has a Chilean code.



Besides the above, the Bill proposes that the Chilean IRS will be enabled to use all technological means available to verify the tax compliance of this new VAT law provision. This is a very broad provision; however, we deem that user profiling, automated assessments and decisions, may be under analysis by Chilean authorities given the international context.



As it becomes evident, the Chilean IRS is being granted two very important tools by the Bill: firstly, access to a massive amount of personal data to perform tax assessments in what respects to VAT compliance; and, it is given free rein to apply technological tools to perform its assessment. These two aspects raise concerns about the level of protection that such data (and its owners) have in Chile. In this case, there is little doubt that Chilean data privacy law no. 19.628 (the law entitled the ‘Protection of Private Life’) is highly insufficient and outdated to protect individual rights to data privacy against the legitimate state interest to collect taxes.



The clash between the protection of personal data and the public interest is not well developed in the Chilean Protection of Private Life law. Indeed, they are set in a mostly unregulated grey-area that is in dire need of further revision. The sole reference for public sector data management and analysis is that such a law states that personal data processing can be done only when the law permits it, setting very few limitations. This approach is more developed in Europe. In particular, the example of the GDPR, which states that data processing can be performed by states if there is public interest, however it must be limited by the application of the proportionality test, which results in more advanced solutions that duly address this clash of rights. These regulations, which have users’ privacy within its goals, do not forget the relevance of data in the effective tax assessment by the authorities. 



There is currently a bill held-up in Congress (since 2018) that addresses some of these conflict areas. When we do have new data protection provisions or laws, we will need to address challenges derived from such, in particular in regard to tax matters, as tax assessments are becoming ever more digitalised and data-centric.



There is no stopping the implementation of different kinds of digital taxes globally. Data protection regulations, as well as other areas of technological development and the law continue to overlap, meaning that the changes that technology and digitalisation bring to taxation will need to be monitored very closely.




Jonatan Israel

T: +56 2 29400126

E: jonatan.israel@pwc.com

Sandra Benedetto

T: +56 2 29400155

E: sandra.benedetto@pwc.com

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