After the Superintendence of Tax Administration (SAT) began to supervise those who provide temporary rental services through the Airbnb platform, many doubts arose.
Given this, Prensa Libre organized and carried out a virtual master class with subscribers, with the participation of tax specialist Óscar Chile Monroy, from the firm MGI, Chile Monroy y Asociados, who explained the application of taxes, the respective billing, application of retroactivity and other elements. This is an excerpt from the questions and answers:
1. Do leases pay taxes?
The entire property income item is subject to taxes and these are not new laws.
Leases in general must be taken into account and not only those of the Airbnb or other existing platforms, but also the direct rentals that each person makes with their tenants. This includes individuals who are not registered with the Tax Administration.
That is to say, whether it is a digital platform or direct rental, property income has been taxed with value added tax (VAT) since 1992 with decree 27-92, as established in article 3 paragraph 4.
Furthermore, in the Tax Update Law, decree 10-2012, it is established that real estate income is subject to income tax (ISR) according to article 10, paragraph 1). The previous law also had that effect.
2. If someone is not registered with the SAT, should they pay taxes on leases?
All individuals or legal entities and entities that obtain taxable income are considered taxpayers, even if they are not registered in the SAT, according to the Tax Code and the Tax Update Law.
You should avoid making the mistake that since the person does not have a NIT, they are not a taxpayer. Another mistake is to believe that if he has a NIT but is not affiliated with any tax, he is not a taxpayer either. Furthermore, characteristics such as age do not matter.
3. Retroactively, how many years can the SAT collect taxes?
This is where the tax statute of limitations comes in. For people or companies that are already registered in the SAT, article 47 of the Tax Code establishes that it empowers the treasury to make tax adjustments, require information, carry out audits and collections or require the payment of taxes for a period of 4 years.
And for those who are not registered with the SAT and carry out lucrative activities, the period is doubled, since article 48 of said Code states that verification or collection can be exercised within a period of 8 years.
4. Does the SAT have information to charge me for these leases, if I do not have a bank account in Guatemala nor did I make any transaction in the country because it was deposited abroad?
Yes. In the case of AirBNBs, the SAT said that it already has the information for the years 2021 and 2022 regarding the values of payments received by taxpayers in Guatemala for rentals on this platform, and that the information was provided by the authorities of Ireland, the host country of the platform.
5. Can I argue that they are occasional rents not to pay?
There are periodic or habitual rentals and occasional rentals. But the taxpayer should not invent and say that they are occasional income, because the SAT is supervising the amounts and periodicity of the payments and there can determine if they are permanent. Furthermore, they are taxed differently.
If it is a habitual lease, it must be paid according to the ISR regime to which it is subject: If it is in the General Regime, which is the ISR on profits from lucrative activities, it will pay 25% on the profits; If you are in the optional simplified regime, which is the tax on gross income, you will pay 5% or 7% depending on the amount of income you have.
When it is occasional, the law establishes a capital income section that pays 7% net.
If you join the Small Taxpayer Regime (PC) the rate is 5%, but take into account that there is a maximum billing limit of Q150 thousand per year.
6. If a person is registered as a Small Taxpayer for another activity, must they change the regime to pay tax on these rentals?
You can continue paying as a small taxpayer, but if your income exceeds Q150 thousand in the year, you must transfer to the general VAT regime taxed at 12%.
7. Does the 10% lodging tax collected by Inguat apply?
Yes it applies, but the Organic Law of the Guatemalan Tourism Institute (Inguat) and its regulations must be analyzed, since this is not collected by the SAT, but by Inguat.
But the Inguat law regulations state that rents for accommodations that are longer than 30 days are not subject to this tax, because rentals with these characteristics or that are made for years are considered long rentals and the tax does not apply. tourism tax. It is up to Inguat to define cases such as these digital platforms.
8. Can the taxpayer go voluntarily before the SAT and have fines and sanctions reduced?
It should be considered that the SAT may not have contacted some landlords directly, but at a public level it has already made a general call.
Then, it is time for the taxpayer to try to regularize and comply voluntarily to take advantage of the reductions in fines and sanctions. Furthermore, this entity can be requested to apply the tax conflict resolution mechanism (RCT) contained in article 145 “A” of the Tax Code and which grants the tax administration the power to grant 40% tax reductions. interest and 80% discount on late payments.
You can also obtain a reduction of 85% on the fine for infraction of formal duties such as failure to submit declarations or for the rectification fine.
Separately, article 183 of the Political Constitution establishes that the taxpayer can request exemption from fines and sanctions, whether approval or not is the responsibility of the President of the Republic, but in the current administration, the government has already announced that it will not grant exonerations.
Those who do not regularize and are notified of a hearing or requirement lose the reductions in penalties and these are equivalent to what is owed, a fine of 100% of that amount, plus interest.
9. Should it be billed retroactively?
The Online Electronic Invoice Regime (FEL) no longer allows issuing invoices from previous years, such as those mentioned by the SAT (information from 2021 and 2022). At the discretion of a senior SAT official, an invoice cannot be issued with dates from those years, but if the person or company is registered, what they must do is rectify the declarations presented in those years.
That is, declare the income from those rentals month following month and pay the corresponding amount (in taxes and penalties), such as VAT, fines and interest for late payment.
The other option is that, instead of rectifying, declare and pay taxes directly using SAT form 811. For this, the tax administration can issue the corresponding form.
And a third is for those who do not yet have a NIT or are affiliated with any regime, register with the SAT and request form 811, to make the corresponding payments.
10. For what amount should it be invoiced, if the platform deducts a commission when transferring the payment to the person providing the lease?
The criterion of the Tax Administration is that the taxpayer in Guatemala must pay or declare the tax on the net amount, because at no time did they receive the total.
That is, if the total for the lease is Q150 and the platform takes its commission of Q25, it pays Q125 to the person providing the service. The tax must be declared for this last amount. In other words, it is an atypical issue because it is the platform that charges 100%.
At the auditor’s discretion, if the person does not have control over what they have been paid, they would have to go to the SAT to compare and reconcile the information because if the data is different, adjustments may arise later.
11. Who is billed to?
You can talk regarding several moments. Regarding 2021 it is 2022, you can rectify the declaration or make direct payment of the tax without issuing an invoice because FEL no longer allows it.
From now on, billing is issued in the name of the guest and the NIT provided by them. If you are a foreigner and do not have a NIT, DPI or CUI from Guatemala, tests have already been carried out on the online electronic invoice (FEL) platform and this allows you to record the name of the tenant and his passport number.
The concept that must be placed is the leasing service, identifying the property and mentioning the person.
AirBNB bills may be deductible depending on which regime the taxpayer is in. For example, if the rent was paid with travel expenses, as part of the operation of the business.
12. How to invoice amounts greater than Q2,500 to foreigners?
The maximum amount to invoice as a final consumer (CF) is Q2 thousand 499.99. If the amount is greater than that, the Guatemalan person can use their NIT and the foreigner can use their passport number. However, several leases cannot be accumulated in a single invoice, but rather one can be issued to each taxpayer on the date the tax is generated.
13. What happens if they are co-owners of the leased property?
If the property is not in the person’s name, but the AirBNB service is and the platform’s payment for the services is deposited into their bank account, this is the one that must be invoiced. If the property is registered as an entity, you must file taxes as a fund manager.
14. If the income is collected with a credit card from the United States or another country and is deposited in a bank account in that country, how are taxes paid if the transactions are made outside of Guatemala?
The country where the rental value is deposited does not matter, since the real estate is in Guatemala. Some suggest that everything be done abroad so that nothing is controlled here, but the SAT reported that it is asking for information from other countries and platforms.
The person can have their money anywhere in the world according to the law of free currency negotiation, but they must be regularized in SAT and pay the corresponding taxes.
15. What is the procedure to regularize?
- If you are not registered, you must register with the SAT and join the ISR and VAT regime.
- If you are already registered, but did not report the income from those rentals, you must update your registration in the RTU, as well as your ISR and VAT regime. Additionally, report the total amount of your income and rectify your statements.
- Address the inspection requirement for the payment of taxes owed. The SAT made available to taxpayers the email fiscalizacióncomercioelectrónico@sat.gob.gt so that the taxpayer can contact and inform that they wish to regularize or update, so that an appointment can be scheduled.
- The attention is being carried out in the Dubai Center building, in the Tax Operations Supervision Division.
- Before paying the tax, it is important to contact that agency so that the applicable discounts can be applied.
- Then, invoice the rentals. Now, the obligation is to do it through Online Electronic Invoice.
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