Adjunct Superintendent Resolution on Prudential Supervision No. 062-2025-SMV — SMV — PE

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SMV
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Adjunct Superintendent Resolution SMV
No. 062-2025-SMV/10
Lima, December 30, 2025

Sumilla: The reconsideration appeal filed by Promotores e Inversiones Investa S.A. Sociedad Agente de Bolsa (Broker Agent Company) against the Adjunct Superintendent Resolution SMV No. 032-2024-SMV/10 is declared unfounded.

Administered Entity: Promotores e Inversiones Investa S.A. Sociedad Agente de Bolsa Subject: Reconsideration appeal against Adjunct Superintendent Resolution SMV No. 032-2024-SMV/10 File No.: 2024010956

The Adjunct Superintendent of Prudential Supervision

HAVING SEEN:
Administrative File No. 2024010956, the reconsideration appeal presented by Promotores e Inversiones Investa S.A. Sociedad Agente de Bolsa, and Report No. 1131-2024-SMV/10.3, issued by the General Superintendent of Prudential Compliance; and

CONSIDERING:

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

I. BACKGROUND

By Adjunct Superintendent Resolution SMV No. 032-2024-SMV/10 of June 18, 2024 (hereinafter, RESOLUTION), it was resolved to sanction Promotores e Inversiones Investa S.A. Sociedad Agente de Bolsa (hereinafter, INVESTA SAB) with a reprimand for having committed one (1) minor infringement typified in Annex I, numeral 3, clause 3.1 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), for failing to submit its individual financial statements corresponding to the close of May 2021 (hereinafter, financial statements) within the deadline established in the applicable regulations;
On June 25, 2024, INVESTA SAB filed a reconsideration appeal against the RESOLUTION;

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The reconsideration appeal was subject to evaluation by the General Superintendent of Prudential Compliance in Report No. 1131-2024-SMV/10.3, which was submitted to the knowledge of this Adjunct Superintendence;
In observance of the Principle of Due Process contemplated in Article IV, clause 1, numeral 1.2, of the Preliminary Title, as well as in Article 248, clause 2 of the Single Text of the General Administrative Procedure Law, Law No. 27444, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO LPAG) and Article 18 of the SANCTIONS REGULATION of the SMV, via Office No. 3842-2024-SMV/10, the administrative file to which this resolution refers was made available to INVESTA SAB for its review;
On September 9, 2024, the intermediary presented additional written arguments. Also, on that date, it requested the use of the floor, which was granted for October 10, 2024 via Office No. 4255-2024-SMV/10; however, INVESTA SAB requested that the presentation of its oral report be rescheduled;
Via Office No. 447-2025-SMV/10, the broker agent company was informed that the rescheduled date for the use of the floor would be January 31, 2025. Notwithstanding the above, on January 30, 2025, INVESTA SAB sent a letter stating that it would not attend and that the additional written arguments presented on that date should be considered;

II. ON THE ADMISSIBILITY OF THE RECONSIDERATION APPEAL

According to what is established in Article 32, numeral 27 of the Regulation of Organization of Functions of the SMV, approved by Supreme Decree No. 216-2011-EF, it is the function of the Adjunct Superintendence of Prudential Supervision to resolve reconsideration appeals against the resolutions it issues;
Likewise, Article 2181 numeral 218.2 of the TUO LPAG establishes that the term for filing appeals is fifteen (15) peremptory days. In this regard, it has been verified that the reconsideration appeal was filed within said deadline;
Pursuant to Article 219 of the TUO LPAG, the reconsideration appeal is filed before the same body that issued the act subject to challenge and must be supported by new evidence. However, in the case of administrative acts issued by bodies that constitute a single instance, new evidence is not required;

III. ON THE ARGUMENTS PRESENTED BY INVESTA SAB

INVESTA SAB presents its arguments so that the nullity of the RESOLUTION is declared. Regarding the time of submission of the interim financial statements corresponding to the month of May 2021, the broker agent company states that by considering 27 of the RESOLUTION2, the reference to the time of submission of said interim financial statements made in considering 11 is dismissed, arguing that any submission outside the regulatory deadline constitutes a non-compliance, lacking foundation the alleged;

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"Article 218. Administrative Appeals
218.1 The administrative appeals are:
a) Reconsideration appeal b) Appeal
Only in the case that a law or legislative decree expressly establishes, the filing of the administrative appeal for review is admissible.
218.2 The term for filing the appeals is fifteen (15) peremptory days, and they must be resolved within thirty (30) days."

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Nevertheless, it is not taken into account that by considering 49 and 50 of the same resolution, the imposed sanction is based on the fact that the late submission has affected the transparency of the securities market, affecting investors' right to access timely information to make investment decisions;
In this regard, INVESTA SAB refers that, thus posed, the decision to impose a sanction becomes unjustified, in principle because, on the one hand, the information was submitted at 03:41:32 hours on July 1, 2021, and therefore was available from the first usual hours in the activity of those interested in the market, as the information received by the MVNet system is immediately made available to the public; consequently, it is not possible that those interested were affected in their right to market transparency;
On the other hand, the broker agent company states that the RESOLUTION is also based on the "affectation of investors' right to have timely information to make investment decisions." In this regard, it reiterates that investors could not have been affected because they had timely access to the information. Additionally, it indicates that they cannot be affected either, as it is usual and normal for investors to make their decisions based on information supplied by securities issuers "listed" on the Stock Exchange, in observance of the Regulation of Material Facts and not the Regulation of Intermediation Agents;
With regard to the exemption from liability provided for in Article 28, first paragraph of the SANCTIONS REGULATION, INVESTA SAB cites the first paragraph of Article 28:
"Article 28°.- SCENARIOS IN WHICH REMEDIATION DOES NOT APPLY AS AN EXEMPTION FROM LIABILITY Remediation prior to the notification of the charge of offenses is not considered as an exemption from liability, when a communication demanding compliance with the obligation had been issued.
Voluntary remediation is not applicable for the purposes of the provisions of clause f) of Article 27:
(…) c) The late or incomplete submission, or the non-submission of material facts, financial information, and annual reports." (Underlined and highlighted by INVESTA SAB);
INVESTA SAB states that Article 28 comprises two norms. The first refers to exempting the obligated subject from liability, if prior to the formulation of charges no communication demanding compliance with the obligation had been directed to it; and, the second, descriptive of the non-compliances;

2 27. Regarding this matter, it must be indicated that Article 95 of the RAI expressly and clearly establishes that the maximum date for the submission of monthly financial statements is within thirty (30) calendar days following the close of the month. In this sense, any submission of said financial statements outside the regulatory deadline constitutes a non-compliance with the regulations; therefore, what the broker agent company alleges in this regard lacks foundation;

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17. However, the broker agent company maintains that despite the undeniable will of the legislator to establish two norms, the sanctioning body considers that the broker agent company is indeed subject to sanction, as it would fall within the scope of clause c) of said Article 28, that is, that the non-compliance referred to in Article 27, literal f) is not subject to remediation. Nevertheless, INVESTA SAB points out that the sanctioning body would have overlooked that mutatis mutandi said literal f) reiterates the exemption from liability provided for in the first paragraph of Article 28:
"Article 27.- EXEMPTIONS FROM LIABILITY FOR OFFENSES The following constitute conditions exempting from liability for offenses:
(…) f) Voluntary remediation by the possible sanctioned party of the act or omission imputed as constituting an administrative offense, prior to the notification of the charge of offenses referred to in the LPAG and provided that no communication demanding compliance with the obligation had been issued.
Article 28.- SCENARIOS IN WHICH REMEDIATION DOES NOT APPLY AS AN EXEMPTION FROM LIABILITY
Remediation prior to the notification of the charge of offenses is not considered as an exemption from liability, when a communication demanding compliance with the obligation had been issued." (Underlined by INVESTA SAB);

18. Consequently, INVESTA SAB states that the legislator's will to reiterate the transcribed texts does not admit under any circumstances an interpretation to the contrary that, as in the case of INVESTA SAB, it is not subject to sanction because it remedied the submission without having been issued a communication demanding compliance with the obligation;

19. Regarding a supposed contradiction between what is established in the TUO LPAG and the SANCTIONS REGULATION, the broker agent company refers that in considering 30 to 36 of the RESOLUTION it is expressed as follows:
"30. Additionally, INVESTA SAB alleges that there would be a supposed antinomy or contradiction between what is established in the TUO OF THE LPAG regarding the exemption from liability for voluntary remediation (clause f) of Article 257 of the TUO OF THE LPAG) and between Article 28 of the SANCTIONS REGULATION by establishing scenarios in which voluntary remediation does not operate before the communication of charges;
31. In this regard, it must be clarified that in the second paragraph of Article 28 of the SANCTIONS REGULATION are collected those conducts that are not subject to voluntary remediation, because in these cases it is not possible to reverse, repair or compensate for the damage produced as a consequence of the commission of the offense. Such is the case of offenses for not timely submitting interim financial statements by broker agent companies, due to their late submission causes immediate harm to the transparency of the market, which is the legal good protected by the SMV; (Underlined by INVESTA SAB);

20. The broker agent company reiterates that it submitted the information at 03:41:32 hours on July 1, 2021, which rules out an affectation on the decisions of those interested since the MVNet system made the information available to them in a timely manner. It adds that the sanctioning body would consider that the SANCTIONS REGULATION prevails over the Law of Sanctioning Administrative Procedure, which would generate the nullity of everything done since, in accordance with what is established by Article II of the TUO LPAG and Article 247 of the same normative text, what is established in the TUO LPAG prevails over all regulations in the scope of public administration:
"Article II.- Content

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1. This Law contains common norms for the actions of the administrative function of the State and regulates all administrative procedures developed in the entities, including special procedures.
2. Laws that create and regulate special procedures cannot impose less favorable conditions on the administered parties than those provided in this Law.
3. Administrative authorities, when regulating special procedures, must comply with following administrative principles, as well as the rights and duties of the subjects of the procedure, established in this Law.
CHAPTER III
Sanctioning Procedure
Article 247.- Scope of application of this chapter
247.1 The provisions of this Chapter discipline the faculty attributed to any of the entities to establish administrative offenses and the consequent sanctions to the administered parties.
247.2 The provisions contained in this Chapter apply with a supplementary character to all procedures established in special laws, including tax ones, which must necessarily observe the principles of the administrative sanctioning power referred to in Article 248, as well as the structure and guarantees provided for the administrative sanctioning procedure. Special procedures cannot impose less favorable conditions on the administered parties than those provided in this Chapter.
247.3 The disciplinary sanctioning power over the personnel of the entities is governed by the regulations on the matter." (Emphasis by INVESTA SAB);

21. Additionally, in its additional written arguments, the broker agent company indicates that the scope of Article 40 of the TUO of the LPAG refers exclusively to administrative procedures, and consequently excludes any possibility of elaborating complementary norms related to sanctioning bodies;

22. Regarding the inapplicability of Article 28 of the SANCTIONS REGULATION, INVESTA SAB alleges that between October 2, 2019 and September 4, 2023, during the dissemination of the project "Gradual Sanctions Regime for Late Submission of Financial Information, Annual Report and Material Facts" via Resolution No. 024-2019-SMV/01, the application of Article 28 of the SANCTIONS REGULATION was suspended for purposes of imputations regarding late submission of financial information:
"Article 2.- APPLICATION OF EXEMPTIONS AND MITIGATING FACTORS The provisions established in Articles 26, 27 and 28 of the Sanctions Regulation are applicable to the non-compliances subject of this regime.
Voluntary remediation is not applicable in accordance with the Sanctions Regulation in cases subject to this norm.
The instructing bodies of the SMV will not initiate an administrative sanctioning procedure if they consider that any of the conditions established as exemptions are evidenced, in which case they will dispose of the archiving of the corresponding file through a motivated decision.
Likewise, in case the existence of the exemption is verified during the processing of the sanctioning procedure, they will recommend the archiving of the file." (Underlined by INVESTA SAB);

23. INVESTA SAB states that if the late submission subject of the charge of offenses occurred between June and July 2021, it is not legally possible to apply said Article 28 of the SANCTIONS REGULATION; therefore, the broker agent company would be exempt from administrative liability;

24. According to the broker agent company, this is explained by the considerations exposed by the SMV for purposes of consulting the modification of the Gradual Sanctions Regime for Late Submission of Financial Information, Annual Report and Material Facts:

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INVESTA SAB refers that the SMV justifies the modification of the then valid gradual regime, motivated by the protection of the administered party in adequacy to the criteria introduced in the General Administrative Procedure Law;
Therefore, the broker agent company considers it incongruent to pretend that during the validity of the dissemination of the project that differed the validity of Article 28 of the SANCTIONS REGULATION until the approval of the "project", at the same time, said Article 28 remained in force;

IV. EVALUATION OF THE ARGUMENTS PRESENTED

INVESTA SAB alleges that the present administrative sanctioning procedure must be declared null, because, although in accordance with considering 27 of the RESOLUTION any submission outside the regulatory deadline constitutes a non-compliance, it has not been taken into account that, in accordance with what is stated in considering 49 and 50 of the RESOLUTION, the imposed sanction is based on the fact that the late submission of the information has affected the transparency of the securities market, affecting in turn investors' right to access timely information to make investment decisions;
In that sense, the broker agent company argues that the decision to impose a sanction would be unjustified since, in principle, the FINANCIAL STATEMENTS were submitted at 03:41:32 hours on July 1, 2021, and therefore were available from the first usual hours of activity of those interested in the market, so it considers that those interested have not been affected, nor has the transparency of the market been affected. On the other hand, it states that investors have not been affected either by not having timely information to make investment decisions, since it is usual for investors to make their decisions based on information supplied by securities issuers "listed" on the Stock Exchange in observance of the Regulation of Material Facts and not the Regulation of Intermediation Agents;
In this regard, it must be reiterated, in accordance with what is indicated in considering 27 of the RESOLUTION3, Article 95 of the Regulation of Intermediation Agents, approved by SMV Resolution No. 034-2015-SMV-01 (hereinafter, RAI) establishes clearly and expressly that the maximum date for the submission of monthly financial statements is within thirty (30) calendar days following the close of the month. Therefore, any submission of said financial statements outside the regulatory deadline constitutes a non-compliance with the regulations. Additionally, it must be taken into account that the deadline established in said Article 95 of the RAI constitutes a maximum deadline in which broker agent companies must submit their monthly financial statements; therefore, in the present case, it is observed that INVESTA SAB had from June 1 to June 30, 2021 to submit the FINANCIAL STATEMENTS, however, it submitted said information outside said deadline;

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"27. Regarding this matter, it must be indicated that Article 95 of the RAI expressly and clearly establishes that the maximum date for the submission of monthly financial statements is within thirty (30) calendar days following the close of the month. In this sense, any submission of said financial statements outside the regulatory deadline constitutes a non-compliance with the regulations; therefore, what the broker agent company alleges in this regard lacks foundation;"

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