Adjunct Superintendent Resolution N.° 004-2025-SMV/10 — SMV — PE

PERU Ministry of Economy and Finance

SMV
Securities Market Superintendency
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and authorship Adjunct Superintendent Resolution SMV No. 004-2025-SMV/10 Lima, January 21, 2025 Subject: Autoplan Empresa Administradora de Fondos Colectivos S.A. is sanctioned with a reprimand for having committed three (03) infractions: one (1) serious infraction typified in Annex XIII, numeral 2, item 2.16 of the Sanctions Regulation and two (02) minor infractions typified in Annex XIII, numeral 3, item 3.7 of the Sanctions Regulation, for failing to comply with sending the complainant payment receipts corresponding to the collective fund administration contract signed, the account statements, and the assembly calendars, as established in the applicable regulations.

Administered Entity: Autoplan Empresa Administradora de Fondos Colectivos S.A.
Subject: Administrative sanctioning procedure
File No.: 2024019546

The Adjunct Superintendent for Prudential Supervision

SEEN:
Administrative file No. 2024019546, and Report No. 1437-2024-SMV/10.3, issued by the General Superintendent of Prudential Compliance; and,

CONSIDERING:

Pursuant to Article 1 of Law No. 29782, Law on Strengthening the Supervision of the Securities Market, the name of the National Commission for the Supervision of Companies and Securities (CONASEV) is replaced by that of the Securities Market Superintendency (SMV), so that any reference to CONASEV in legal norms shall be understood as referring to the SMV;

I. FACTS

PERU Ministry of Economy and Finance

On June 22, 2021, COMPLAINANT 1 signed with AUTOPLAN EAFC the “Collective Fund Administration Contract Special Program for Advance Allocation with Designated Supplier – Purchase Certificate Modality” No. 217223, Group No. 25, Program “Plan 21” for the allocation of a purchase certificate for US$ 12,000.00 (Twelve thousand and 00/100 US dollars) (hereinafter, CONTRACT);
By the document received on May 2, 2022, COMPLAINANT filed a complaint with the Securities Market Superintendency (SMV) against AUTOPLAN EAFC 2, in which, among others, he complained about the following facts: i) AUTOPLAN EAFC had not sent him the account statements corresponding to the CONTRACT, nor its assembly calendar and ii) AUTOPLAN EAFC had not delivered all the payment receipts corresponding to the payments made under the CONTRACT;
With the aforementioned complaint, COMPLAINANT presented, among others, the following:

a. Copy of the CONTRACT, which is only signed by the representatives of AUTOPLAN EAFC;

b. Copy of the document titled “Program Plan 21 Admission Request” of the CONTRACT;

c. Copy of the “Schedule of the next 3 assemblies” of the CONTRACT;

d. Copy of the document titled “Payment Schedule” as of February 11, 2022, with the paid, overdue and pending installments corresponding to the CONTRACT;

e. Copy of the emails issued by AUTOPLAN EAFC (efacturacion@autoplan.pe), on August 28, 2021, to the electronic address CORREO1, according to which the following payment receipts were sent to COMPLAINANT: Invoice No. B004- 00065527, Invoice No. B004 – 00065526, Invoice No. B004 – 00065494, Invoice No. B004 – 00065493, Invoice No. B004 – 00065462, Invoice No. B004 – 00065461, Invoice No. B004 – 00065433, Invoice No. B004 – 00065432 and Invoice No. B004 – 00065431, all issued on August 25, 2021;

With Letter No. 2141-2022-SMV/10.3, notified on May 6, 2022 (hereinafter, LETTER), AUTOPLAN EAFC was made aware of the complaint filed by COMPLAINANT in order to send the corresponding comments and was requested, among others, the following documentation and/or information:

“(…)

d. Copy of the receipt of notification of the call to the (3) first Assemblies in which COMPLAINANT was entitled to participate, as well as the respective Calendar of Associate Assemblies, corresponding to the CONTRACT.

(…)

PERU Ministry of Economy and Finance

f. Receipt of sending all account statements sent to COMPLAINANT corresponding to the CONTRACT, since his admission.

(…)

h. Copy of the payment receipts issued by AUTOPLAN EAFC to COMPLAINANT, as well as the copy of the receipt of sending them. Furthermore, specify the reasons why only payment receipts for the amount of US$ 2,432.98 were issued, considering that COMPLAINANT refers to having canceled a larger sum.

(…)

j) Any other information and/or documentation that you consider pertinent to the case and that allows clarifying the complained facts”;

On June 16, 2023, AUTOPLAN EAFC sent its comments and part of the required information to the SMV via the LETTER;
By Letter No. 1801-2024-SMV/10.3 notified on May 3, 2024 (hereinafter, LETTER OF CHARGES), an administrative sanctioning procedure was initiated against AUTOPLAN EAFC, imputing charges for some facts related to COMPLAINANT's complaint;
AUTOPLAN EAFC has not presented its defenses to the administrative sanctioning procedure initiated via the LETTER OF CHARGES, to date;
The charges formulated have been evaluated by the General Superintendent of Prudential Compliance in Report No. 1437-2024-SMV/10.3, which has been submitted to the knowledge of this Adjunct Superintendency;
In observance of the Principle of Due Process contemplated in Article IV, item 1, numeral 1.2 of the Preliminary Title, as well as in Article 248, numeral 2, of the Single Text of the General Administrative Procedure Law No. 27444, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO LPAG), via Letter No. 4908-2024-SMV/10, the administrative file to which this resolution refers was made available to AUTOPLAN EAFC for its review;

II. ISSUES TO BE DETERMINED

In the present administrative procedure, in the opinion of this Adjunct Superintendency, it corresponds to determine the following:

a. Whether AUTOPLAN EAFC incurred or not an infraction provided for in Annex XIII, numeral 3, item 3.7 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), for not sending the account statements corresponding to the collective fund administration contract signed to the associate as established in clause 10, numeral 10.4, letter l) of the contract and in Article 70 of the REGULATION;

b. Whether AUTOPLAN EAFC incurred or not an infraction provided for in Annex XIII, numeral 3, item 3.7 of the SANCTIONS REGULATION, for not sending the associate its assembly calendars held between September 2021 and February 2022, as established in clause 10, numeral 10.4, letter l) of the contract and in Article 70 of the REGULATION;

PERU Ministry of Economy and Finance

c. Whether AUTOPLAN EAFC incurred or not an infraction provided for in Annex XIII, numeral 2, item 2.16 of the SANCTIONS REGULATION, for failing to comply with sending COMPLAINANT all the payment receipts as established in clause 7, numeral 7.6 of the contract;

d. Whether it corresponds or not to impose a sanction on AUTOPLAN EAFC;

III. ANALYSIS

3.1. Of the applicable regulations

A. ON THE SENDING OF ACCOUNT STATEMENTS AND ASSEMBLY CALENDARS CORRESPONDING TO THE CONTRACTS

Clause 10, numeral 10.4, letter l) of the CONTRACT establishes that the following are the functions and obligations of AUTOPLAN EAFC:

“10.4 FUNCTIONS AND OBLIGATIONS OF AUTOPLAN:
The following are the functions and obligations of the Administrator:

(…)

l) Others provided for in the Regulation.

(…)”;

Article 70 of the Regulation of the Collective Funds System and its Administrator Companies, approved by SMV Resolution No. 020-2014-SMV-01 (hereinafter, REGULATION) provides as follows:

“Article 70.- Obligation to provide periodic information to Associates The Administrator has the obligation to provide information to its Associates regarding their account statements and the Assembly calendar. When applicable, it will send information on the price variation of the goods under Programs for specific goods and other services they contract.

Account statements must be sent at least with the same periodicity in which the Assemblies are held. The Assembly calendar must be sent with a minimum periodicity of three (03) months. The price variation of the goods under Programs for specific goods may be included in the account statement that the Administrator sends to the Associate. The Associate's account statement must contain at least the information contained in Annex 8.

The modality to be used to provide the aforementioned information must be agreed upon in the Contracts. Additionally, the Administrator may use different electronic communication means that allow the Associate to be able to take adequate and timely knowledge of the respective information.

In the event that email is used, this medium must guarantee non-repudiation and allow traceability of the communication”. (Underlining added);

B. ON THE SENDING OF PAYMENT RECEIPTS

Regarding the CONTRACT, Article 21 of the REGULATION provides:

“Article 21.- Contract

PERU Ministry of Economy and Finance

The Contract is of a private nature and has a collective character, regulates the relationships between Associates and the Administrator, and establishes the rights and obligations of both parties; its content is governed by what is established in Article 95 of the Regulation.

(…)”. (Underlining added);

Regarding AUTOPLAN EAFC's obligation to send the respective payment receipts to the associate, clause 7, numeral 7.6, of the CONTRACT establishes the following:

“SEVENTH CLAUSE: ON PAYMENTS

(…)

7.6 Autoplan will issue the respective payment receipts in the name of the Associate, which will be sent to the address indicated by the Associate in the General Conditions of this Contract. Prior to what is stated, Autoplan must validate the payment made in the Collector Accounts and identify that it has been made for the obtaining of the Purchase Certificate.

(…)” (Underlining added);

3.2. Of the charges formulated

A. ON THE SENDING OF ACCOUNT STATEMENTS CORRESPONDING TO THE CONTRACT

According to what is established in the regulations exposed, administrator companies have, among others, the obligation to provide information to their associates regarding their account statements, which must be sent at least with the same periodicity in which the assemblies are held and, through the modality established in the CONTRACT;
In this sense, AUTOPLAN EAFC had to send to COMPLAINANT, in his capacity as associate of the Plan 21 Program, Group No. 25, his account statements during the validity of his contract, at least with the periodicity in which the assemblies are held, that is, for the present case, they had to be sent monthly;
Regarding this, COMPLAINANT has stated that AUTOPLAN EAFC did not comply with delivering his account statements corresponding to the CONTRACT, so via the LETTER, the administrator company was requested the receipts of sending all the account statements sent to COMPLAINANT since his admission for the CONTRACT;
However, AUTOPLAN EAFC did not comply with presenting the receipts of sending the account statements that it had to send to COMPLAINANT corresponding to the signed contract. Therefore, AUTOPLAN EAFC has not presented evidentiary means that accredit the sending to COMPLAINANT of the respective account statements corresponding to the CONTRACT;
In this sense, it is noted that AUTOPLAN EAFC would not have complied with delivering the account statements to COMPLAINANT corresponding to the CONTRACT, failing to comply with what is established in clause 10, numeral 10.4, letter l) of the CONTRACT and Article 70 of the REGULATION;
Therefore, it was imputed to AUTOPLAN EAFC THAT it would have incurred in one (1) minor infraction typified in Annex XIII, numeral 3, item

PERU Ministry of Economy and Finance

3.7 of the SANCTIONS REGULATION, according to which it constitutes an infraction: “Not to timely send to associates information on account statements or assembly calendars”;

B. ON THE SENDING OF ASSEMBLY CALENDARS CORRESPONDING TO THE CONTRACT

According to what is established in the regulations exposed, administrator companies have, among others, the obligation to provide information to their associates regarding the assembly calendar. Likewise, it is specified that assembly calendars must be sent with a minimum periodicity of three (3) months, through the modality established in the CONTRACT;
In this sense, AUTOPLAN EAFC had to send to COMPLAINANT, in his capacity as associate of the Plan 21 Program, Group No. 25, his assembly calendars during the validity of the CONTRACT, with a minimum periodicity of three (3) months;
Regarding this, COMPLAINANT has stated that AUTOPLAN EAFC did not comply with sending him his assembly calendar, so via the LETTER, the sending of the receipt of notification of the call to the three (3) first assemblies in which COMPLAINANT was entitled to participate was requested, as well as the respective Calendar of Associate Assemblies for the CONTRACT;
In response to the request made, on June 16, 2022, AUTOPLAN EAFC presented the “schedule of the next 3 assemblies”, which corresponds to the receipt of notification of the three (3) first assemblies in which COMPLAINANT was entitled to participate, held on July 6 3, July 27 and August 27, 2021, signed by COMPLAINANT on June 22, 2021 along with his CONTRACT. However, AUTOPLAN EAFC has not complied with presenting the receipts of notification of the other assembly calendars corresponding to the CONTRACT, for the assemblies held between September 2021 and February 2022, considering that the CONTRACT presents the situation of “Resolved” in the “Associate Status Archive (SIT)”4 with a withdrawal date of February 28, 2022, according to what was informed by AUTOPLAN EAFC;
In this sense, it is noted that AUTOPLAN EAFC would have failed clause 10, numeral 10.4, letter l) of the CONTRACT and Article 70 of the REGULATION, as it has not been accredited that it sent to COMPLAINANT the assembly calendars, for the assemblies held from September 2021;
Therefore, it was imputed to AUTOPLAN EAFC THAT it would have incurred in one (1) minor infraction typified in Annex XIII, numeral 3, item 3.7 of the SANCTIONS REGULATION, according to which it constitutes an infraction: “Not to timely send to associates information on account statements or assembly calendars”;

C. ON THE SENDING OF PAYMENT RECEIPTS

3 Exp. 2021026365.
4 According to what is stated in the “Manual of Technical Specifications for the submission to the SMV of information from collective fund administrator companies” approved by Superintendent Resolution No. 102-2016-SMV/02.

PERU Ministry of Economy and Finance

According to what is established in the regulations exposed, AUTOPLAN EAFC has the obligation to issue the respective payment receipts in the name of the associate, which will be sent to the address indicated by the latter;
On this matter, COMPLAINANT complains that AUTOPLAN EAFC would not have sent him the total of the payment receipts, after having made the cash payment of S/ 12,000.00, since on August 28, 2021 the administrator company sent him payment receipts for a lower amount, US$ 2,432.98;
Regarding this, COMPLAINANT presented copies of nine (9) emails sent by AUTOPLAN EAFC (efacturacion@autoplan.pe), on August 28, 2021, through which the administrator company sent to the complainant the following payment receipts: Invoice No. B004- 00065527, Invoice No. B004 – 00065526, Invoice No. B004 – 00065494, Invoice No. B004 – 00065493, Invoice No. B004 – 00065462, Invoice No. B004 – 00065461, Invoice No. B004 – 00065433, Invoice No. B004 – 00065432 and Invoice No. B004 – 00065431, all issued on August 25, 2021, for a total amount of US$ 2,174.00;
Likewise, COMPLAINANT presented a Payment Schedule as of February 11, 2022 regarding the CONTRACT -indicating that it was sent to him by AUTOPLAN EAFC via email of February 11, 2022 which he attaches- in which it is appreciated that COMPLAINANT paid in favor of AUTOPLAN EAFC a total of US$ 3,000 which correspond to US$ 566.40 for the concept of “I” admission fee, US$ 102.78 for the concept of monthly fee No. 53 and US$ 2,330.82 for the concept of nine monthly installments (installments No. 1, 2, 54, 55, 56, 57, 58, 59 and 60). In this sense, via the LETTER, AUTOPLAN EAFC was requested a copy of the payment receipts issued to COMPLAINANT, as well as the copy of the receipt of sending them. However, AUTOPLAN EAFC has not commented on this, nor has it presented the requested information and/or documentation;
In this sense, considering that, according to the Payment Schedule as of February 11, 2022 regarding the CONTRACT, the total amount paid by COMPLAINANT amounts to US$ 3,000.00, and that the payment receipts sent by the administrator company amount to US$ 2,174.00, it is observed that AUTOPLAN EAFC would not have complied with sending to COMPLAINANT the payment receipts for the remaining amount, that is, US$ 826;
Considering the above, AUTOPLAN EAFC would not have complied with observing what is provided by clause 7, numeral 7.6 of the CONTRACT, that is, AUTOPLAN EAFC would not have complied with sending all the payment receipts to COMPLAINANT corresponding to the CONTRACT;
Consequently, AUTOPLAN EAFC would have incurred in one (1) infraction classified as serious, according to Annex XIII, numeral 2, item 2.16 of the SANCTIONS REGULATION, according to which it constitutes an infraction: “Not to comply with the provisions of the collective fund administration contract celebrated with the associate”;

PERU Ministry of Economy and Finance

3.3. Of the defenses

Regarding this, it must be noted that AUTOPLAN EAFC to date of issuance of this resolution, has not presented defenses to the charges formulated via the LETTER OF CHARGES;

3.4. Evaluation of the charges

Without prejudice to the above, it is necessary to note that AUTOPLAN EAFC is a company supervised by the SMV, with a license of operation granted by Superintendent Resolution No. 024-2015-SMV/02 of February 17, 2015 and has knowledge of the regulations under which the collective fund system operates, as well as the rights and obligations established in the contracts it administers, for which it has the obligation to act diligently as a collective fund administrator company; however, this did not occur, since the administrator company committed the commission of two infractions subject to charges;
What is stated in the previous consideration impacts the fulfillment of its functions and obligations as a collective fund administrator company;
Additionally, AUTOPLAN EAFC has the obligation to comply with the contract signed with its associates, which establishes the rights and obligations of the associates and the administrator company and whose model is authorized by the SMV, at the request of AUTOPLAN EAFC;

A. ON THE SENDING OF ACCOUNT STATEMENTS

Indeed, in the present case, according to the documents in the file, it is observed that AUTOPLAN EAFC did not comply with sending the account statements to COMPLAINANT during the validity of the CONTRACT, that is, from June 22, 2021 to February 28, 2022, since the administrator company has not presented the receipts of sending the aforementioned account statements to the associate. Therefore, AUTOPLAN EAFC has failed to comply with what is provided in clause 10, numeral 10.4, letter l) of the CONTRACT and Article 70 of the REGULATION;
Consequently, it is noted that AUTOPLAN EAFC has incurred in one (1) infraction classified as minor, according to Annex XIII, numeral 3, item 3.7 of the SANCTIONS REGULATION, according to which it constitutes an infraction: “Not to timely send to associates information on account statements or assembly calendars”;

B. ON THE SENDING OF ASSEMBLY CALENDARS

Likewise, it is observed that AUTOPLAN EAFC has not complied with sending the assembly calendars to COMPLAINANT, corresponding to the CONTRACT, for the assemblies held between September 2021 until February 2022, since it has not presented the receipts of sending to the associate of said assembly calendars. Consequently, it is observed that AUTOPLAN EAFC has failed to comply with what is provided in clause 10, numeral 10.4, letter l) of the CONTRACT and Article 70 of the REGULATION;
In this sense, it is noted that AUTOPLAN EAFC has incurred in one (1) minor infraction typified in Annex XIII, numeral 3, item 3.7

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría del REGLAMENTO DE SANCIONES, según el cual constituye infracción: “No remitir oportunamente a los asociados la información sobre los estados de cuenta o calendario de asambleas”;
C. SOBRE LA REMISIÓN DE LOS COMPROBANTES DE PAGO
43. With regard to this charge, it is observed that
AUTOPLAN EAFC has not complied with sending the COMPLAINANT the entirety of the payment receipts, since it has not presented the charges for the remission of the payment receipts to the associated for the amount of US$ 826. Consequently, it is observed that the administrator company has failed to comply with what is provided in clause 7, numeral 7.6 of the CONTRACT;
44. Consequently, it is noted that AUTOPLAN EAFC
has incurred one (1) serious infraction typified in Annex XIII, numeral 2, item 2.16 of the SANCTIONS REGULATION, according to which it constitutes an infraction: “Not comply with the dispositions of the collective fund administration contract celebrated with the associated”;
IV. EVALUATION OF THE SANCTION
45. According to article 7 of Decree Law N°
21907 on Collective Fund Companies and article 25 of the SANCTIONS REGULATION; in concordance with article 248, numeral 3 5 of the TUO LPAG and article 257 6 of the aforementioned normative body; the administrative sanctions that are imposed must take into account the criteria established by Decree Law N° 21907, the SANCTIONS REGULATION and the TUO LPAG;

5
“Article 248.- Principles of the administrative sanctioning power The sanctioning power of all entities is additionally governed by the following special principles:
(…)
3. Reasonableness.- The authorities must foresee that the commission of the sanctionable conduct does not result in more advantage
for the offender than complying with the infringed norms or assuming the sanction. However, the sanctions to be applied must be proportional to the non-compliance qualified as an infraction, observing the following criteria that are indicated for the purposes of their graduation:
a) The illicit benefit resulting from the commission of the infraction; b) The probability of detection of the infraction; c) The seriousness of the damage to the public interest and/or protected legal good; d) The economic harm caused; e) Recidivism, for the commission of the same infraction within a period of one (1) year from when the resolution that sanctioned the first infraction became final. f) The circumstances of the commission of the infraction; and g) The existence or non-existence of intent in the conduct of the offender”. 6 “Article 257°.- Exemptions and mitigating factors of responsibility for infractions 1.- The following constitute conditions exempting responsibility for infractions:
a) Force majeure or fortuitous event duly proven. b) Acting in compliance with a legal duty or the legitimate exercise of the right of defense. c) Mental incapacity duly proven by the competent authority, provided that this affects the aptitude to understand the infraction. d) Mandatory order from a competent authority, issued in the exercise of its functions. e) Error induced by the Administration or by confusing or illegal administrative provision. f) Voluntary remediation by the possible sanctioned party of the act or omission imputed as constitutive of administrative infraction, prior to the notification of the imputation of charges referred to in item 3) of
article 255.
2.- The following constitute conditions mitigating responsibility for infractions:
a) If an administrative sanctioning procedure has been initiated and the offender recognizes their responsibility expressly and in writing.
In cases where the applicable sanction is a fine, it is reduced to an amount no less than half of its amount. b) Others that are established by special norm”.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría
46. Within that framework, the evaluation of the sanction
must consider: a) Antecedents of the offender; b) Recidivism; c) Circumstances of the commission of the infraction; d) Economic harm caused and its repercussion on the market; e) Illicit benefit resulting from the commission of the infraction; f) Probability of detection of the infraction; g) Seriousness of the damage to the public interest and/or protected legal good h) Existence or non-existence of intent in the conduct of the offender;
47. In this sense, for the purpose of harmonizing the criteria
of the TUO LPAG, with those indicated in Decree Law N° 21907 and in the SANCTIONS REGULATION, and for these criteria to be considered adequately so that their valuation observes the principle of reasonableness and that the sanction to be imposed conforms to these, it proceeds to analyze the following criteria;
48. Regarding antecedents, in accordance with
what is provided by article 25°, literal a) of the SANCTIONS REGULATION, antecedents constitute the final sanctions imposed by the SMV within a period of four (4) years prior to the commission of the infraction to be sanctioned. The aforementioned article specifies that the commission of the same infraction in the year prior to the infraction to be sanctioned is not considered an antecedent;
49. In this regard, from the review carried out in said
period, it has been verified that AUTOPLAN EAFC records the following final sanctions:
No. Resolution Resolved Finality Antecedent
(*) i
Resolution of the
Assistant Superintendency
SMV No. 112-
2017-SMV/10 7
AUTOPLAN EAFC is sanctioned with a fine of two (02) UIT, for having incurred one (01) infraction of a serious nature typified in Annex XIX, numeral 2, item 2.12 of the Sanctions Regulation approved by Resolution CONASEV No. 055-2001-EF/94.10 and its modifying norms (hereinafter PREVIOUS SANCTIONS REGULATION), for not having complied with presenting the First Semester Report of the Compliance Officer of the 2015 exercise, within the deadline established in the Norms for the Prevention of Money Laundering and Financing of Terrorism. 12/12/2017 A, B and C ii Resolution of the Assistant Superintendency SMV No. 017- 2018-SMV/10 8 AUTOPLAN EAFC is sanctioned with six (06) warnings and a fine of 15.48 UIT for having incurred in eleven (11) infractions of a minor nature typified in Annex XIV, numeral 3, item 3.1 of the PREVIOUS SANCTIONS REGULATION, for not complying with presenting periodic information within the deadline established in the applicable regulation. Through Assistant Superintendency Resolution SMV No. 070-2021-SMV/10, the reconsideration appeal filed by Autoplan EAFC was declared founded in part and consequently the amount of the fine imposed through article 17 of the Resolution of 30/12/2021 A, B and C

7 Notified on November 17, 2017.
8 Notified on May 11, 2018.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría No. Resolution Resolved Finality Antecedent (*) Assistant Superintendency Resolution SMV No. 017-2018-SMV/10 to
9.675 UIT.
iii
Resolution of the
Assistant Superintendency
SMV No. 011-
2019-SMV/10 9
AUTOPLAN EAFC is sanctioned with two (02) warnings for having incurred in two (02) infractions of a serious nature typified in Annex XIV, numeral 2, item 2.21 and Annex XIV, numeral 2, item
2.41 of the PREVIOUS SANCTIONS REGULATION, for not having
determined adequately the order of preference of the substitute awardees.
11/04/2019 A, B and C iv
Resolution of the
Assistant Superintendency
SMV No. 004-
2020-SMV/10 10
AUTOPLAN EAFC is sanctioned with a fine of three (03) UIT for having incurred in two infractions: one (01) of serious nature typified in Annex XIV, numeral 2, item 2.22 of the PREVIOUS SANCTIONS REGULATION, for not complying with the conditions established in the regulation for the convocation or for the celebration of assemblies; and, one (01) of minor nature typified in Annex XIV, numeral 3, item 3.13 of the PREVIOUS SANCTIONS REGULATION for not timely sending to the associated the information on the calendar of assemblies. Through RSUP No. 119-2020-SMV/02, the appeal filed by AUTOPLAN EAFC was declared founded in part and consequently the sanction imposed as a fine in article 3° of the Resolution of Assistant Superintendency SMV No. 004-2020-SMV/10 was modified, reducing it from three (3) UIT to two (2) UIT, valid at the moment of effective payment of the fine; and, revoke the corrective measure established in article 4° of the mentioned Assistant Superintendency Resolution. 01/12/2020 A, B and C v Resolution of the Assistant Superintendency SMV No. 013- 2021-SMV/10 11 AUTOPLAN EAFC is sanctioned with three (03) warnings and a fine of 28.0045 UIT for having incurred in twenty (20) infractions of a minor nature typified in Annex XIV, numeral 3, item 3.1 of the PREVIOUS SANCTIONS REGULATION and in two (02) infractions of a minor nature typified in Annex I, numeral 3, item 3.1, of the SANCTIONS REGULATION, for not having complied with presenting periodic information within the deadline established by the applicable regulation referred to intermediate financial information and management report. 21/04/2021 A, B and C vi Resolution of the Assistant Superintendency SMV No. 060- 2021-SMV/10 12 AUTOPLAN EAFC is sanctioned with a fine of 18.3345 UIT for having incurred in twelve (12) infractions of minor nature typified in Annex I, numeral 3, item 3.1, of the SANCTIONS REGULATION, for not having complied with presenting periodic information within the deadline established by the applicable regulation. 24/01/2022 A and B

9 Notified on March 21, 2019.
10 The resolution was subject to appeal by AUTOPLAN EAFC. Subsequently, through the Resolution of Superintendent No. 119-2020-SMV/02, the appeal was declared founded in part. 11 Notified on March 26, 2021. 12 Notified on December 29, 2021.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría (*) Literals of consideration 11.
50. With regard to recidivism for the commission of the
same infraction, the final sanction imposed by the SMV within a period of one (1) year prior to the commission of the infraction to be sanctioned is taken into account. Within this framework, it must be stated that AUTOPLAN EAFC does not present sanctions within the period indicated above, for the commission of the same infractions subject of analysis, in the present administrative sanctioning procedure, so that recidivism is not configured;
51. With regard to the circumstances of the commission of the
infractions, it must be mentioned that AUTOPLAN EAFC, in its capacity as a company supervised by the SMV, knows the norms that regulate the system of collective funds and in that sense, the norms that oblige it to communicate and proceed with the return of contributions as established in the REGULATION and in the contracts it administers;
52. Notwithstanding the above, in the present case it has been
proven that AUTOPLAN EAFC did not comply with delivering the account statements to the COMPLAINANT during the validity of the CONTRACT, nor did it deliver the assembly calendars corresponding to the assemblies held between September 2021 to February 2022, nor the entirety of the payment receipts corresponding to the CONTRACT;
53. On this matter, it should be noted that AUTOPLAN
EAFC in the development of its activities is obliged to comply with the norms that regulate the exercise of its activities and its own internal procedures established in the corresponding manuals. Regarding this, the administrator company must implement the procedures and controls necessary for their due observance. Likewise, it must be reiterated that AUTOPLAN EAFC has the obligation to comply with the contract signed with its associated parties, which establishes the rights and obligations of the associated parties and the administrator company and whose model is authorized by the SMV, at the request of the administrator company;
54. Without prejudice to the foregoing, it should be added that in the
present case the administrator company has celebrated the extrajudicial transaction (hereinafter, TRANSACTION) of May 20, 2022 with the COMPLAINANT through which AUTOPLAN EAFC committed to grant to the COMPLAINANT, only once, the fixed, total and invariable sum of US$ 3,000.00 (Three thousand and 00/100 US dollars), sum equivalent to the entirety of contributions made by virtue of the CONTRACT without the application of penalties. It should be indicated that the Transaction was carried out 14 days after the transfer of the complaint by the SMV to the administrator and prior to the imputation of charges;
55. Regarding this, AUTOPLAN EAFC has presented copies
of bank transfer records for the amount of US$ 3,000.00 (Three thousand and 00/100 US dollars) made in favor of the COMPLAINANT on May 20, 2022, in accordance with what is established in Clause Second, numeral 2.1 of the TRANSACTION, which is in File No. 2022018765;
56. With regard to the harm caused and the repercussion
on the market, in the present case, it has not been evidenced that the infractions in which AUTOPLAN EAFC has incurred have produced a concrete quantifiable

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría in the market; however, these facts affect the confidence of the associated parties or potential associated parties in the system of collective funds;
57. Regarding the illicit benefit resulting from the
commission of the infractions, it must be noted that it has not been proven that AUTOPLAN EAFC has obtained a benefit that is directly related to the infractions subject of analysis in the present administrative procedure;
58. With regard to the probability of detection of the
infractions, it must be indicated that the facts constitutive of the infractions committed by AUTOPLAN EAFC were evidenced when verifying compliance with the applicable regulation for the development of its functions, based on the facts exposed by the COMPLAINANT in the complaint filed against the administrator company, so that the probability of detection of the infraction was low;
59. As for the seriousness of the damage to the public interest
and/or protected legal good, in the present case it has not been possible to prove that the action of AUTOPLAN EAFC in the commission of the infractions subject of analysis in the present sanctioning procedure have caused damage to the public interest determinable;
60. However, a protected legal good has been affected,
consisting in the protection of the associated party, since AUTOPLAN EAFC has failed to comply with the obligation to provide periodic information to the associated party. The obligation not fulfilled aims to prevent the affectation of the interests of the associated parties, particularly their confidence in the system of collective funds, since the remission of account statements allows the former to verify the detail of their contributions based on the paid quotas, the administration expenses charged by the society and to carry out the control of their payments made monthly, as well as the other information established in Annex 8 of the REGULATION.
61. Likewise, according to what is provided in
clause 7, numeral 7.6, of the CONTRACT, the administrator company was obliged to send the payment receipts corresponding to the payments made by the associated parties. In this sense, and in order to avoid possible harm to its clients, AUTOPLAN EAFC had to establish procedures in order to comply with the obligations established in the contract and the norms of the system of collective funds;
62. In this way, taking into account that the
administrator companies of collective funds have the obligation to act in strict compliance with the regulation applicable to them, such as the provisions established in the CONTRACT and the REGULATION, in safeguarding the system of collective funds, the transgression of said regulation affects the legal good referred to the integrity of the market, that is, of the system of collective funds and especially affects the confidence of the associated parties or potential associated parties in the system of collective funds;
63. Regarding the existence or non-existence of intent in
the conduct of the offender, it must be specified that no intent has been verified in the conduct of AUTOPLAN EAFC regarding the infractions subject of analysis;
64. In addition to the above, it corresponds to analyze the
exemptions and mitigating factors of responsibility established in article 257

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría of the TUO LPAG as well as the mitigating and exempting conditions of responsibility established in articles 26 and 27 of the SANCTIONS REGULATION;
65. In accordance with what has been analyzed, in accordance
with what is determined in article 257, numeral 1 of the TUO LPAG and article 27 of the SANCTIONS REGULATION, it is not observed that in the present case any of the scenarios that constitute conditions exempting responsibility have been configured;
66. With regard to the voluntary declaration of the
commission of the infractions (article 257, numeral 2 of the TUO LPAG) and the contribution of the offender to their clarification, established in article 26, literals a) and b) of the SANCTIONS REGULATION, it must be indicated that AUTOPLAN EAFC did not present defenses. Consequently, it has not expressly recognized the commission of the infractions subject of evaluation, nor has it contributed to the clarification of the facts imputed as charges;
67. From the above, it is concluded that AUTOPLAN EAFC
has incurred the commission of two (2) infractions qualified as minor in Annex XIII, numeral 3, item 3.7 of the SANCTIONS REGULATION and one (1) infraction qualified as serious in Annex XIII, numeral 2, item 2.16 of the SANCTIONS REGULATION, regarding which it corresponds to impose on AUTOPLAN EAFC a sanction corresponding to the infractions qualified as serious according to article 38 of the SANCTIONS REGULATION;
68. Regarding this, it should be noted that since the
determined infractions are of different nature, it corresponds to impose the sanction for the infraction of greater gravity, as indicated in the second paragraph of article 29 13 of the SANCTIONS REGULATION;
69. However, taking into account the analyzed sanction
criteria, and in application of the Principle of Reasonableness contemplated in
article 248, numeral 3 of the TUO LPAG which states that the sanctions to be applied
must be proportional to the non-compliance qualified as an infraction, it must be considered that regarding the infractions subject of charges, it has not been evidenced that these have caused economic harm or that they have had repercussion on the market. Likewise, it has not been verified that the administrator company has obtained any illicit benefit with the commission of the infractions subject of charges, nor that it has had intent in its actions regarding this. Likewise, it has been verified that AUTOPLAN EAFC is not a recidivist with respect to the infractions;
70. In addition to the above, it should be highlighted that
AUTOPLAN EAFC reached a TRANSACTION with the complainant and effected the return of its contributions to the COMPLAINANT, through a bank transfer for the amount of US$ 3,000.00 dated May 20, 2022, whose transfer record has been presented as support for the total return made in favor of the COMPLAINANT;
71. In this sense, considering the analysis carried out,
this Assistant Superintendency considers that it corresponds to impose on AUTOPLAN EAFC

13
“Article 29.- CONCOURSE OF INFRACTIONS
(…)
Likewise, when several conduct qualify as more than one infraction, the sanction corresponding to the most serious infraction is imposed.”

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Document electronically signed digitally within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and the authorship a sanction applicable to minor infractions, in accordance with what is established in
Article 39 of the SANCTIONS REGULATION;
72. Being in accordance with the provisions of Article 32, paragraph
16, of the Organization and Functions Regulation of the SMV, approved by Supreme Decree No. 216-2011-EF and its amendments; RESOLVES:
Article 1st.- Declare that Autoplan Empresa
Administradora de Fondos Colectivos S.A. has committed one (1) infraction classified as serious as established in Annex XIII, paragraph 2, item 2.16 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for not having fulfilled the obligation to remit all payment receipts to the associate.
Article 2nd.- Declare that Autoplan Empresa
Administradora de Fondos Colectivos S.A. has committed one (1) infraction classified as minor as established in Annex XIII, paragraph 3, item 3.7 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, since it did not comply with sending the monthly account statements to the associate, corresponding to the contract signed, during its validity.
Article 3rd.- Declare that Autoplan Empresa
Administradora de Fondos Colectivos S.A. has committed one (1) infraction classified as minor as established in Annex XIII, paragraph 3, item 3.7 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for not sending to the associate the assembly calendars, corresponding to its contract for the assemblies held from September 2021 to February 2022.
Article 4th.- Sanction Autoplan Empresa
Administradora de Fondos Colectivos S.A. with a reprimand for the commission of the infractions referred to in Articles 1st, 2nd and 3rd of this resolution.
Article 5th.- This resolution does not exhaust the administrative
channel, unless it is consented to, and may be challenged before the Deputy Superintendent of Prudential Supervision by filing the reconsideration or appeal appeal submitted before the same, within the term of fifteen (15) business days counted from the day following its notification.
Article 6th.- In the event that this resolution is not
subject to challenge through reconsideration or appeal within the term of fifteen (15) business days of being notified and becomes final, it must be published on the SMV Institutional Website on the Single Digital Platform of the Peruvian State, in observance of what is provided in paragraph 1, Article 7th of the Policy on dissemination of regulatory projects, legal norms of a general nature, early agenda and other administrative acts of the SMV, approved by SMV Resolution No. 014-2014-SMV/01 and its amendment, and by what is provided in Article 14th of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01.

PERU Ministry of Economy and Finance

Lineage