Adjunct Superintendent Resolution on Market Conduct Supervision No. 008-2025-SMV/11

PERU Ministry of Economy and Finance

That, the IGCC – the instructing body of the administrative sanctioning procedures (hereinafter, the PAS) referred to in this case – has brought to the knowledge of the Adjunct Superintendence of Market Conduct Supervision of the SMV (hereinafter, SASCM), the PAS of administrative file No. 2024036497 with the aim of issuing a decision as

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendence
"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho" 2 Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml first-instance administrative sanctioning body for the present PAS. In this way, the SASCM assumes competence in observance of the exercise of the supervision function and the sanctioning power of the SMV, established through the Concorded Single Text of its Organic Law, Decree Law No. 26126 (hereinafter, LOSMV) and the Unified Text of the Securities Market Law, Legislative Decree No. 861, approved by Supreme Decree No. 020-2023-EF-1 1 (hereinafter, TUO LMV); as well as by what is provided in the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, Sanctions Regulation); and in articles 42 and 43 of the Organization and Functions Regulation of the SMV, approved by Supreme Decree No. 216-2011-EF (hereinafter, ROF-SMV), in the sense that it is a specific function of the SASCM, to impose sanctions in first administrative instance for the commission of infractions whose compliance control corresponds to said Adjunct Superintendence. Likewise, the SASCM has the powers to issue corrective measures aimed at reversing the situation altered by the commission of the infraction;
II. FACT, CHARGE AND DEFENSES OF THE ADDRESSEE
2.1 Fact
2. That, it was evaluated whether SOA Durand complied with its obligation to present documentation or information requested by the SMV;
2.2 Charge
3. That, as a result of said evaluation, through Letter No. 3742-2024-SMV/11.2 of September 03, 2024 (hereinafter, the Charge Letter), the charge detailed below was formulated:
In the framework of compliance supervision actions of the International Auditing Standards (ISA), in the audit performed on the financial statements of the 2021 exercise of Agrícola Cayaltí S.A.A. (hereinafter, Cayaltí), the General Intendancy of Conduct Supervision (hereinafter, IGSC) requested information from its representative through the following letters:
(i) Through Letter No. 187-2022-SMV/11.1 of January 19, 2022, the IGSC reiterated to SOA Durand that within three (03) business days of notification of said letter, it comply with attending the requests formulated in Letter No. 4633-2021- SMV/11.1 of November 26, 2021, whose deadline for attendance expired on December 20, 2021; however, the information request has not been attended (File No. 2021036544). (ii) Through Letter No. 4266-2023-SMV/11.1 of September 15, 2023, in response to the written submission presented by SOA Durand on January 24, 2023, it was specified that partial compliance had been given to the information request formulated in Letter No. 5177-2022-SMV/11.1 of October 11, 2022. In light of this, the IGSC reiterated to SOA Durand to comply with sending the information that remains pending from Letter No. 5177-2022- SMV/11.1, granting a deadline of five (05) business days from the notification of said letter for its proper attendance. Nevertheless, the information requested in Letter No. 5177-2022- SMV/11.1 was not sent completely. (File No. 2022039168).

1 Through Supreme Decree No. 020-2023-EF, published on February 10, 2023 in the Official Gazette El Peruano, the Unified Text of the Securities Market Law, Legislative Decree No. 861, was approved.

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendence
"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho" 3 Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml (iii) In addition to the above, in said Letter No. 4266-2023-SMV/11.1, a new information request was formulated to SOA Durand in order for it to be attended within a deadline not greater than ten (10) business days of notification of said letter; however, this new information request was also not attended by SOA Durand. (File No. 2022039168). In accordance with the above, SOA Durand would not have complied with attending the information requests formulated by the SMV through (i) Letter No. 4633- 2021-SMV/11.1, (ii) Letter No. 5177-2022-SMV/11.1., and (iii) Letter No. 4266-2023- SMV/11.1;
4. That, the presentation within the stated deadline of the documentation or information requested by the SMV, is typefied in item 3.6 of numeral 3 of Annex I of the Sanctions Regulation;
2.3 Defenses and Allegations
5. That, SOA Durand was validly notified with the Charge Letter on September 04, 2024 personally via physical means. However, to date, SOA Durand has not sent defenses regarding the imputed infraction;
6. That, through Supreme Decree No. 004-2019-JUS, the Unified Text of the General Administrative Procedure Law, Law No. 27444 (hereinafter, TUO of the LPAG), was approved, which contains common rules for the actions of the administrative function of the State and regulates all administrative procedures developed in the entities, including special procedures. Likewise, numeral 3) of article 248 of the TUO of the LPAG, indicates the criteria regarding the graduation of the sanction: (a) The illicit benefit resulting from the commission of the infraction, (b) The probability of detection of the infraction, (c) The severity 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 sanctioning 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 infringer;
7. That, the charge formulated and the criteria regarding the graduation of the sanction have been the subject of evaluation in the Report, which has been brought to the knowledge of the SASCM;
8. That, in observance of what is provided by numeral 5 of article 255 of the TUO of the LPAG, through Letter No. 5370-2024-SMV/11 of November 26, 2024, the Report was sent to SOA Durand so that it may formulate its allegations within a deadline of five (05) business days. It should be specified that said letter was validly notified personally via physical means on November 28, 2024. However, to date SOA Durand has not presented allegations to the Report;
III. MATTERS TO BE DETERMINED
9. That, in the present PAS it corresponds to determine the following:
(i) Whether SOA Durand incurred or did not incur the infraction indicated in the Charge Letter and Report; (ii) Whether it corresponds or does not correspond to impose a sanction on SOA Durand;
IV. ANALYSIS

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendence
"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho" 4 Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml
4.1 Applicable Normativity
10. That, article 1 of the LOSMV, states that the SMV has the function: "(…) supervise the compliance of international auditing standards by auditing societies enabled by a College of Public Accountants of Peru and contracted by natural or legal persons subject to the supervision of the SMV in compliance with the norms under their competence, for which it may issue general provisions concordant with said international auditing standards and request any information or documentation to verify such compliance.(…)". (Underline added);
11. That, likewise, the penultimate paragraph of numeral 7, article 3 of the LOSMV, establishes, among others, that: "(…). In the framework of the celebration of agreements and/or for the fulfillment of its institutional purposes, the SMV as the securities market authority may, within or outside an investigation or inspection, request any auditing society, the documentation related to the audit or review of financial statements that they had performed, including copies of any information or documentation related to this service, from any legal person or autonomous patrimony, even when they do not participate in the securities market. (…)". (Underline added);
12. That, in item 3.6 of numeral 3 of Annex I of the Sanctions Regulation, it has been established that it constitutes a minor infraction: "Present outside the established deadline, or not present, the documentation or information, other than that indicated in the preceding numeral 3.1 to which they are obligated by the regulation or by request of the SMV or not send it according to the technical specifications, when applicable, or send it incompletely". (Underline added);
13. That, according to article 35 of the Sanctions Regulation, minor infractions are sanctionable with a warning or a fine not less than one (1) UIT and up to twenty-five (25) UIT;
4.2 Evaluation of the case
14. That, in administrative file No.
2024036497, which contains the documentation of the present PAS, it is appreciated that through Report No. 91-2024-SMV/11.1 of January 22, 2024 (File No.
2022028911), the IGSC – the body of the SMV that has within its functions and powers, the supervision of compliance with the norms applicable to auditing societies contracted by companies with securities registered in the RPMV, evaluating the indications of possible infractions, and sends, for its consideration, the reports of indications of infractions respectively, to the IGCC – sent to the IGCC, the result of its evaluation, and specifically what refers to the present case;
15. That, it must be kept in mind that the procedures and legal forms with which the IGSC conducts its inspection and/or supervision activity and upon concluding it with a report of indications of infraction, determine that its pronouncement or opinion on a specific supervision topic – which can even contain a decision, such as, for example, the adoption of corrective measures – be an opinion on the merits of the matter; it must be specified that said opinion and the report of indications of infraction of the IGSC, is not binding for the IGCC,

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendence
"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho" 5 Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml as established in the second paragraph of article 9 of the Sanctions Regulation 23 ;
16. That, in this way it is had that in the evaluation of the facts related to the present PAS have intervened and participated previously to the issuance of this Resolution, two (2) other administrative bodies of the SMV, functionally independent from each other and from this Office; first the IGSC which at its time reported the indications of infraction and then the IGCC which, as a result of its evaluation, formulated the Charge Letter and the Report; and at this point of the PAS it corresponds to the Office of the SASCM to issue a pronouncement containing its decision regarding the mentioned charge, being precise to indicate that by the nature of the same, as previously stated, it will be a first-instance administrative decision;
17. That, at the date of elaboration of the Report, it has been verified in the receipt charge that is in the PAS file, that SOA Durand has not sent the corresponding defenses to the charge formulated, it being necessary to take into account that the deadline granted for the sending of its defenses has passed, since SOA Durand was notified on September 04, 2024;
18. That, it has been verified in the receipt charge that is in the PAS file, that SOA Durand has not sent the corresponding allegations to the Report, it being necessary to take into account that the deadline granted for the sending of its allegations has passed, since SOA Durand was notified personally via physical means on November 28, 2024;
19. That, in that sense, according to what is provided by numeral 4 of article 255 of the TUO of the LPAG and, what is stated in item b) of article 16 of the Sanctions Regulation, , the evaluation of the charge subject of the present PAS was proceeded with;
20. That, in the concrete case, the following information has been verified:
(i) Regarding Letter No. 4633-2021-SMV/11.1 of November 26, 2021 Regarding this, through said letter the IGSC requested from SOA Durand, as part of the preliminary supervision actions of compliance with the ISA in the audit on the Annual Financial Statements 2021, information related to the audit that was going to be carried out on the Annual Financial Statements 2021 of Cayaltí, such as, the

2 In article 245 of the TUO of the LPAG it indicates as forms or modes in which the inspection activity could conclude the following: 1) Certificate of conformity of the activity developed by the addressee; 2) Recommendation of improvements or corrections of the activity developed by the addressee; 3) The warning of the existence of non-compliances not susceptible of meriting the determination of administrative responsibilities; 4) The recommendation of the start of a procedure in order to determine the administrative responsibilities that correspond; 5) The adoption of corrective measures and 6) Other forms as established by special laws. 3 «Article 9.- PRELIMINARY INQUIRIES AS A CONSEQUENCE OF SUPERVISION ACTIONS (…) When said bodies conclude that there are sufficient indications of possible administrative infractions they send the corresponding reports to the General Intendancies of Compliance, which determine if it corresponds to start or not an administrative sanctioning procedure. If the case, the General Intendancies of Compliance may carry out additional inspections or investigations of the reported indications. In the case of possible infractions in the scope of the Regulation of the Participatory Financial Financing Activity and its Managing Societies, the preliminary inquiries are carried out by the General Intendancy of Investigation and Innovation, a dependency that if there are sufficient indications of possible administrative infractions will determine if it corresponds to start or not an administrative sanctioning procedure. (…)».

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendence
"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho" 6 Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml valid habilitation certificates of the auditing society, of the partner in charge of the audit and of the quality control reviewer, granted by a College of Public Accountants of Peru, as well as the dates of signature of the audit contract, of start of the audit work, of delivery of the audit report, among others, with the aim of taking knowledge about the timely planning of the audit, by SOA Durand, among others. Likewise, it is observed in File No. 2021027933, that Letter No. 4633- 2021-SMV/11.1 was notified on November 26, 2021 at the address that appears in the web portal “Consultas RUC” of the National Superintendence of Customs and Tax Administration – SUNAT. The response deadline to said letter expired on December 20, 2021; however, SOA Durand did not respond to it. Thus, through Letter No. 187-2022-SMV/11.1, the IGSC reiterated said requests and granted a deadline of three (03) additional business days for its compliance, whose attendance deadline expired on January 24, 2022; nevertheless, SOA Durand also did not respond to what was requested. (ii) Regarding Letter No. 5177-2022-SMV/11.1 of October 10, 2022 As for the letter in question, this was sent by the IGSC to SOA Durand in order to request information and documentation related to the planning and execution of the audit, such as: (i) copy of the audit contract or engagement letter, (ii) copy of the written communications to the Board of Directors and to the Management of the company for significant deficiencies identified in internal control, as well as the respective receipt, (iii) copy of the written manifestations sent by the Board of Directors or another corporate body with appropriate responsibilities on the financial statements, (iv) copy of the memorandum or audit summary on the conclusions that support the type of opinion contained in the audit report issued; and, (v) copy of the document that evidences the quality control review of the audit. From the review of File No. 2022039168, it is adviced that SOA Durand gave response to said request on January 24, 2023; however, the information presented was incomplete. (iii) Regarding Letter No. 4266-2023-SMV/11.1 of September 15, 2023 In virtue that SOA Durand did not send the information completely, through Letter No. 4266-2023-SMV/11.1, the IGSC requested from SOA Durand (i) the missing information, granting it a deadline of five (05) business days; and, (ii) additional information, granting it a deadline of ten (10) business days. Taking into account that said
letter was notified on September 18, 2023, the expiration dates were September 25 and October 02, 2023, respectively; nevertheless, SOA Durand did not comply with presenting the requested information.
21. That, it is worth highlighting that, in the framework of the Sanctions Regulation, it is established in its article 4, item q), that the participants of the securities market comprise both natural or legal persons that directly or indirectly intervene in said market 4
. Consequently, SOA Durand qualifies

4
“Article 4.- Terms and definitions
For the effects of the present Regulation, the following words have the scope indicated:
(…)

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
“Decenio de la Igualdad de Oportunidades para Mujeres y Hombres” "Año del Bicentenario, de la consolidación de nuestra Independencia, y de la conmemoración de las heroicas batallas de Junín y Ayacucho" 7 Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml as an indirect participant in the securities market, having audited the financial statements of supervised issuers, thereby assuming responsibilities before the applicable regulatory standards;
22. That, it should be clarified that the Issuer has not presented its arguments regarding the Report to date, as has already been detailed in this Resolution;
23. That, therefore, the conduct constituting the offense contained in the charge imputed has been proven and the administrative responsibility of SOA Durand is determined; for which reason, it corresponds to analyze the sanction proposal in accordance with the principle of reasonableness and the sanctioning criteria, which will be evaluated in the following section;
V. DETERMINATION OF THE SANCTION
24. That, the failure to present within the specified deadline the documentation or information requested by the SMV is typified in paragraph 3.6 of numeral 3 of Annex I of the Sanctions Regulation, which states that it constitutes a minor offense: "To present outside the established deadline, or not to present, the documentation or information, other than that indicated in the preceding numeral 3.1 to which they are obligated by the regulations or by request of the SMV or not to send it according to the technical specifications, when applicable, or to send it incompletely". (Underline added);
25. That, in accordance with Article 35 of the Sanctions Regulation, minor offenses are punishable with a reprimand or a fine not less than one (1) UIT and up to twenty-five (25) UIT;
26. That, for the purpose of analyzing the corresponding sanction for this type of non-compliance, what is established in Article 25 of the Sanctions Regulation must be taken into account; in this sense, we proceed to analyze: (i) the sanctioning antecedents; (ii) recidivism, for the commission of the same offense within a period of one (1) year from when the resolution sanctioning the first offense became final; the harm caused and its repercussion in the market; (iii) the circumstances of the commission of the offense; (iv) the economic harm caused and its repercussion in the market; (v) the illicit benefit resulting from the commission of the offense; (vi) the probability of detection of the offense; (vii) the seriousness of the damage to the public interest and/or the protected legal good; and, (viii) the existence or non-existence of intent in the conduct of the offender, in accordance with what is established in numeral 3) of Article 248 of the TUO of the LPAG and Article 348 of the LMV;
SANCTIONING CRITERIA
27. That, regarding the seriousness of the damage to the public interest and/or the protected legal good, it must be indicated that the presentation of documentation or information requested by the SMV constitutes a fundamental obligation in the transparency of the securities market, since with this it is sought to guarantee that market participants make their investment decisions of such or such value adequately informed. Likewise, the lack of attention to the requests made by the SMV affects the supervision work of the SMV. In

q) Participant: Natural or legal person who directly or indirectly participates in the securities market or in the collective fund system. Includes, as applicable, the directors of: i) the legal entities of the entities to which the SMV grants operating authorization and ii) the issuers of securities for public offering. (…)”. (Underline added).

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
“Decenio de la Igualdad de Oportunidades para Mujeres y Hombres” "Año del Bicentenario, de la consolidación de nuestra Independencia, y de la conmemoración de las heroicas batallas de Junín y Ayacucho" 8 Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml consequence, although no seriousness of damage to the public interest is evidenced, the non-compliance with the obligation to inform the market within the deadline limits by participants affects the transparency of the market, which is considered a protected legal good;
28. That, regarding the sanctioning antecedents, it has been verified that SOA Durand does not have sanctioning antecedents, in the terms referred to in letter a) of Article 25 of the Sanctions Regulation, which establishes that the antecedents of the offender are the sanctions that have been imposed by the SMV and that became final within four (4) years prior to the moment of the commission of the offense to be sanctioned;
29. That, regarding recidivism for the commission of the same offense, it has been verified that there is no recidivism on the part of SOA Durand, in the terms referred to in letter b) of Article 25 of the Sanctions Regulation, which provides that there is recidivism, for the commission of the same offense within a period of one (01) year from when the resolution sanctioning the first offense became final;
30. That, in relation to the circumstances of the offense, it is worth noting that, to date, SOA Durand has not complied with attending the information requests formulated by the SMV through (i) Official Letter No. 4633-2021-SMV/11.1, (ii) Official Letter No. 5177-2022-SMV/11.1., and (iii) Official Letter No. 4266-2023-SMV/11.1;
31. That, regarding the economic harm caused and its repercussion in the market, it has not been evidenced that the aforementioned non-compliance has produced a quantifiable harm, understood as an economic damage caused to one or more investors;
32. That, regarding the illicit benefit resulting from the commission of the offense, it has not been proven that the offense committed by SOA Durand has generated an illegal benefit;
33. That, on the other hand, regarding the probability of detection of the offense, it should be noted that to detect this type of non-compliance, the SMV has carried out various actions, among them, the diligence of substantiation of working papers and issuing various official letters requesting information, therefore, there is a low probability of detection of non-compliance in the presentation of documentation or information requested by the SMV;
34. That, regarding the existence or non-existence of intent in the conduct of the offender, it has not been evidenced by this non-compliance that SOA Durand has acted intentionally or fraudulently;
35. That, in addition to the above, it corresponds to indicate that in the present PAS it has been verified that no assumptions of exonerating or mitigating factors of responsibility established in Article 257 of the TUO of the LPAG 5,

5
“Article 257°.- Exonerating and mitigating factors of responsibility for offenses 1.- The following constitute conditions exonerating responsibility for offenses:
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 offense. d) Mandatory order of competent authority, issued in the exercise of its functions. e) Error induced by the Administration or by confusing or illegal administrative provision.

PERÚ Ministry of Economy and Finance

f) Voluntary remediation by the possible sanctioned party of the act or omission imputed as constitutive of an administrative offense, prior to the notification of the charge imputation referred to in paragraph 3) of Article 235.
2.- The following constitute mitigating conditions of responsibility for offenses:
a) If an administrative sanctioning procedure has been initiated, the offender recognizes their responsibility expressly and in writing.
In cases where the applicable sanction is a fine, this is reduced to an amount not less than half of its value. b) Others that are established by special regulation.”
6
“Article 26.- MITIGATING CONDITIONS OF RESPONSIBILITY FOR OFFENSES The following constitute mitigating conditions of responsibility for offenses:
a) Recognition of responsibility of the offender expressly and in writing, once the administrative sanctioning procedure has been initiated.
When the applicable sanction is a fine, it is reduced, taking into account the following:
(…)
3. If the recognition is presented after the expiration of the deadline granted to formulate arguments regarding the instruction report and before the issuance of the sanctioning resolution, the reduction amount will be ten percent (10%).”
7
“Article 27.- EXONERATING CONDITIONS OF RESPONSIBILITY FOR OFFENSES The following constitute exonerating conditions of responsibility for offenses:
a) Force majeure, fortuitous event or another exceptional situation that, in the opinion of the SMV, is equivalent to force majeure or fortuitous event duly proven. b) Acting in compliance with a legal duty or the legitimate exercise of a right of defense. c) Mental incapacity duly proven by the competent authority, provided that this affects the aptitude to understand the offense. d) Mandatory order of 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 an administrative offense, prior to the notification of the charge imputation referred to in paragraph 3) of Article 253 of the LPAG and provided that no communication demanding compliance with the obligation has been issued.”

PERÚ Ministry of Economy and Finance

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