Assistant Superintendent Resolution N° 045-2025-SMV/10

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship. Assistant Superintendent Resolution SMV No. 45-2025-SMV/10 Lima, August 15, 2025 Summary: Fonbienes Perú EAFC S.A. is sanctioned with a reprimand for having committed one (1) serious infringement typified in Annex I, numeral 2, subsection 2.33 of the Sanctions Regulation for having captured and held funds that did not correspond to the specifications of the authorized program. Administered Entity: Fonbienes Perú EAFC S.A. Subject: Administrative sanctioning procedure File No.: 2024035952

The Assistant Superintendent of Prudential Supervision

SEEN:
The administrative file No. 2024035952 and Report No. 659-2025-SMV/10.3, issued by the General Intendancy of Prudential Compliance; as well as the defenses presented by Fonbienes Perú EAFC S.A.; and,

CONSIDERING:

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

I. FACTS
2. On November 23, 2021, the COMPLAINANT1 signed with Fonbienes Perú EAFC S.A. (hereinafter, FONBIENES EAFC) Collective Fund Administration Contract No. 83651, corresponding to “Program FBP006”, Group No. 30 – Vacancy No. 019, for the award of a purchase certificate for US$ 15,000.00 (Fifteen thousand and 00/100 American dollars) (hereinafter, CONTRACT)
2;
3. By letter received on June 16, 2022, the COMPLAINANT filed a complaint with the Securities Market Superintendency

1 In an annex attached to this resolution, the complete data of the natural persons to whom the designations used in this resolution belong are detailed, and likewise, if applicable, their email addresses. 2 The information was obtained from the copy of the CONTRACT sent by FONBIENES EAFC to the SMV. 3 File No. 2024001163. Digitally Signed by:
GUTIERREZ
OCHOA Omar
Dario FAU
20131016396 soft
Date: 15/08/2025
16:36:17

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship. (SMV) against FONBIENES EAFC, in which it states that the sales executive of FONBIENES EAFC assured him that he had been awarded and that in that sense she made him complete the deposit of US$ 6,000.00 (Six thousand and 00/100 American dollars);
4. Likewise, it states that, subsequently, at the office of
FONBIENES EAFC they explained the auction procedure, that is, that first an auction is proposed and if he wins, only then does he deposit the corresponding money. In this sense, it states that if he had known about it, he would not have deposited the US$ 6,000.00 (Six thousand and 00/100 American dollars);
5. In this sense, the COMPLAINANT requested from
FONBIENES EAFC the return of the deposit of the US$ 6,000.00 (Six thousand and 00/100 American dollars);
6. The COMPLAINANT attaches as part of his
complaint:
a. Copy of one (1) banking voucher for payment in favor of FONBIENES EAFC for US$ 6,000.00 (Six thousand and 00/100 American dollars); b. Copy of the Payment Schedule as of May 25, 2022;
c. Copy of the claim made through the Complaints Book, dated May 25,
2022 (hereinafter, CLAIM); d. Copy of the document titled “Letter for Request for Return” of the US$ 6,000.00 (Six thousand and 00/100 American dollars) dated May 26, 2022 (hereinafter, LETTER FOR RETURN REQUEST); e. Copy of the email sent by OFFICIAL1 - adjudications2@fonbienes.com.pe to other employees of FONBIENES EAFC, dated May 19, 2022, in which it states that the COMPLAINANT is not awarded (hereinafter, EMAIL OF MAY 19, 2022);
7. With Letter No. 3250-2022-SMV/10.3, notified on
June 20, 2022 (hereinafter, LETTER), the complaint filed by the COMPLAINANT was transferred, in order to send the corresponding comments and it was required, among other information, the following documentation and/or information:
“(…) b. Copy of the Collective Fund Administration Contract signed between FONBIENES EAFC and the [COMPLAINANT].
c. Copy of the current account statement of the [COMPLAINANT], from the month of his first contribution up to the date, corresponding to his contract.
(…) f. Copy of the response provided to the COMPLAINANT regarding the claim filed on May 25, 2022 with Complaint Sheet No. 000224 in the complaints book of FONBIENES EAFC and to the “Letter for Request for Return” of May 26, 2022. h. Any other information and/or documentation considered relevant to the case and that allows clarify the facts complained about.”.
8. On June 30, 2022, FONBIENES EAFC sent to
the SMV its comments and the information required via the LETTER (hereinafter, RESPONSE), presenting the following documentation that forms part of the file:
a. Copy of the CONTRACT.

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship. b. Copy of the Account Statements of the COMPLAINANT, from the month of his first contribution up to the date of the RESPONSE, corresponding to the CONTRACT.
c. Copy of the response provided to the COMPLAINANT, regarding the claim filed
on May 25, 2022 with Complaint Sheet No. 000224 in the Book of Complaints of FONBIENES EAFC and to the “Letter for request for Return” of May 26, 2022. This response was carried out through the authorized email and recorded in the CONTRACT.
9. Via email sent on June 24, 2024 to
the General Intendancy of Entity Supervision, FONBIENES EAFC sent updated information on the status of the COMPLAINANT's contract;
10. With Letter No. 3422-2024-SMV/10.3, notified on
August 08, 2024, additional information was requested from FONBIENES EAFC; therefore, on August 13, 2024, the administrator sent the required information via the referenced letter;
11. With Letter No. 3655-2024-SMV/10.3, notified on
August 21, 2024 (hereinafter, LETTER OF CHARGES), an administrative sanctioning procedure was initiated against FONBIENES EAFC; therefore, via writing presented on September 02, 2024, FONBIENES EAFC presented the defenses to the charges imputed;
12. The charges formulated have been subject to
evaluation by the General Intendancy of Prudential Compliance in Report No. 659- 2025-SMV/10.3, which has been submitted to the knowledge of this Assistant Superintendency;
13. In observance of the Principle of Due Process
contemplated in Article IV, subsection 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. 2872-2025-SMV/10, it was put at the disposal of FONBIENES EAFC the administrative file to which the present resolution refers for review;
14. With Assistant Superintendent Resolution SMV
No. 030-2024-SMV/10, notified on May 20, 2025, it was resolved to extend exceptionally for an additional period of three (03) months, the term for the resolution of the present administrative sanctioning procedure;
II. ISSUES TO DETERMINE
15. In the present administrative procedure, at
the discretion of this Assistant Superintendency, it corresponds to determine the following:
a) Whether FONBIENES EAFC incurred or not in the infringement established in Annex I, numeral 2, subsection 2.33 of the Sanctions Regulation, approved by SMV Resolution No. 035- 2018-SMV/01 (hereinafter, SANCTIONS REGULATION), for having captured and held funds from the COMPLAINANT that did not correspond to the specifications of the PROGRAM; b) Whether it is appropriate or not to impose a sanction on FONBIENES EAFC;

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship.
III. ANALYSIS
3.1. Of the Applicable Normative
ON THE CAPTURE AND CUSTODY OF FUNDS THAT DO NOT CORRESPOND TO THE SPECIFICATIONS OF THE AUTHORIZED PROGRAM
16. Article 33 of the REGULATION establishes the scope
of the corporate object of the collective fund administrator company, according to the following:
“Article 33.- Corporate Object
The Administrator is a joint-stock company whose object is the administration of collective funds under the terms of the Law and the Regulation.:
(…).” (Underline added)
17. In that context, Article 35 of the REGULATION
establishes the following:
“Article 35.- Functions and Obligations of the Administrator The following are the functions and obligations of the Administrator:
(…). b) Capture and hold funds, in national or foreign currency, in accordance with the specifications of the Program. (…).”
18. Likewise, in Clause 17, numeral 17.1, literal
b) of the CONTRACT it states the following:
“17. OF THE RIGHTS AND OBLIGATIONS
17.1 Functions and Obligations of FONBIENES
(…) b) Capture and hold funds, in national or foreign currency, in accordance with the specifications of the Program.
(…)”.
3.2. Of the Charges Formulated
ON THE CAPTURE AND CUSTODY OF FUNDS THAT DO NOT CORRESPOND TO THE SPECIFICATIONS OF THE AUTHORIZED PROGRAM
19. According to the complaint, the COMPLAINANT
stated that the sales executive of FONBIENES EAFC would have assured him that he had been awarded and that in that sense she made him complete the deposit of US$ 6,000.00 (Six thousand and 00/100 American dollars);
20. Nevertheless, the COMPLAINANT stated that,
subsequently, at the office of FONBIENES EAFC they explained the procedure of auction, that is, that first an auction is proposed and if he wins, only then does he deposit the corresponding money. Therefore, the COMPLAINANT states that if he had had knowledge of it, he would not have deposited the US$ 6,000.00 (Six thousand and 00/100 American dollars), since it would make no sense;

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship.
21. In this sense, the COMPLAINANT via the
CLAIM and LETTER FOR RETURN REQUEST, requested from FONBIENES EAFC, among others, the return of the deposit of the US$ 6,000.00 (Six thousand and 00/100 American dollars);
22. To prove said deposit, the COMPLAINANT
presented with his complaint a copy of the record of a bank deposit to the bank account of FONBIENES EAFC with the concept of Various Payments for the amount of US$ 6,000.00 (Six thousand and 00/100 American dollars) dated March 15, 2022;
23. Likewise, the COMPLAINANT presented a copy
of the document titled Payment Schedule issued by FONBIENES EAFC as of May 25 2022, in which it can be observed that the deposit made to the bank account of FONBIENES EAFC for the amount of US$ 6,000.00 (Six thousand and 00/100 American dollars) is registered as “Auction in Custody”. This is also appreciated in the email sent by FONBIENES EAFC to the SMV on June 24 2024, in which the Payment Schedule as of that date is observed;
24. Additionally, the COMPLAINANT presented the
EMAIL OF MAY 19, 2022 through which the Adjudications Analyst of FONBIENES EAFC, OFFICIAL1 - adjudications2@fonbienes.com.pe informed other employees of FONBIENES EAFC, that the COMPLAINANT was not awarded. This condition was confirmed by the administrator society in its writing presented on August 13, 2024;
25. Regarding this, via the RESPONSE, FONBIENES
EAFC stated that the COMPLAINANT made a payment for the concept of auction in custody amounting to US$ 5,999.99 (Five thousand nine hundred ninety-nine and 99/100). Likewise, in its RESPONSE it attached the image of a table in which it qualifies said payment as Auction in Custody;
26. Likewise, the administrator company manifested
that, insofar as the amount deposited for auction in custody was not applied in the purchase certificate of the COMPLAINANT and according to his request; on June 13, 2022, FONBIENES EAFC proceeded to carry out the return thereof. Which was accredited via the image of a bank transfer dated June 13, 2022, made in favor of the COMPLAINANT for the amount of US$ 5,999.99 (Five thousand nine hundred ninety-nine and 99/100);
27. In this sense, FONBIENES EAFC presented the
writing dated June 13, 2022 sent to the COMPLAINANT on June 15, 2022 via his email recorded in the CONTRACT, with which it responded to the CLAIM made by the COMPLAINANT and regarding the payment of the amount of US$ 6,000.00 (Six thousand and 00/100 American dollars) it only stated the following:
“Regarding the return of your contributions, we inform you that, on June 13, 2022, FONBIENES proceeded to carry out the return of the payment made for the sum amounting to US$ 6,000.00.”;
28. In that context, it must be noted that from the
evaluation performed, although there was not sufficient support to allow accrediting the statements referred to that the sales executive of FONBIENES EAFC would have assured the COMPLAINANT that he was awarded and that she would have made him complete the deposit of US$ 6,000.00 (Six thousand and 00/100 American dollars) for said concept, it is necessary to indicate that, as read in the EMAIL OF MAY 19, 2022, the COMPLAINANT was not an awarded associate by auction, since

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship. he had not presented an auction proposal in accordance with what is established in clause 7, numeral 7.2 of the CONTRACT, so it did not correspond to FONBIENES EAFC to capture such funds and keep them in its accounts, since said payment did not correspond to the fulfillment of payment for auction or any other concept established in the REGULATION and CONTRACT;
29. Indeed, the concept Auction in Custody, which is the denomination that the administrator company according to the RESPONSE gives to the payment made by the COMPLAINANT in favor of FONBIENES EAFC is not regulated within the specifications of the Program titled “FBP006”,
authorized by General Intendancy of Entity Supervision Resolution No.
076-2014-SMV/10.2 of November 14, 2014 and its modifications (hereinafter, PROGRAM),4 so it is not a concept that is regulated in the CONTRACT, nor in the REGULATION;
30. It should be added that, although on June 13, 2022,
FONBIENES EAFC returned to the COMPLAINANT the amount of US$ 5,999.99 (Five thousand nine hundred ninety-nine and 99/100), according to what was stated by the administrator company itself, the return was made upon the request of the COMPLAINANT and not by initiative of the administrator company, keeping in custody such funds in its accounts without them having corresponded to any concept regulated in the PROGRAM and therefore in the CONTRACT, for almost three (3) months, considering that the payment was made on March 15, 2022;
31. It should also be noted that, according to the
account statements corresponding to the CONTRACT, sent by FONBIENES EAFC, it is observed that from the account statement corresponding to the month of April 2022 in the concept “Registration Fee” an amount of US$ 6,707.99 is seen, when according to the information sent by FONBIENES EAFC the amount for the concept of Registration Fee, paid by the COMPLAINANT, amounts to US$ 708.00, which, according to the CONTRACT, corresponds to Registration Fee A;
32. From this, it follows that FONBIENES EAFC not
only qualified the payment made by the COMPLAINANT as Auction in custody according to the RESPONSE and the Payment Schedule sent by the COMPLAINANT, but also in said account statements registered said payment as part of the Registration Fee, which not only contradicts what was stated by FONBIENES EAFC, but also did not correspond to the amount of the Registration Fee paid nor to the total of the Registration Fee, as established in the CONTRACT5;
33. Consequently, FONBIENES EAFC would have captured
and kept in its accounts, funds from the COMPLAINANT that did not correspond to any authorized concept with the PROGRAM, that is, that did not correspond to the specifications of the PROGRAM, so it would have failed to comply with what is established in article 35 of the REGULATION and Clause 17, numeral 17.1 of the CONTRACT;

4 Via General Intendancy of Entity Supervision Resolution No. 076-2014-SMV/10.2 of November 14, 2014, FONBIENES EAFC was authorized to administer the program titled “FBP006”, as well as its respective collective fund administration contract model, to which corresponds the Collective Fund Administration Contract No. 83651. Subsequently, via General Intendancy of Entity Supervision Resolution No. 070-2015-SMV/10.2 of July 22, 2015 and General Intendancy of Entity Supervision Resolution No. 091-2015-SMV/10.2 of September 10, 2015, the respective modifications were authorized. 5 According to the General Conditions of the Contract, Registration Fee A and B sum to a total of US$ 1,062.00.

PERU Ministry of Economy and Finance

SMV
Securities Market
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Electronically signed document within the framework of Law No. 27269, Law on Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship.
34. Therefore, it was imputed to FONBIENES EAFC that it would have
committed one (1) infringement classified as serious, according to Annex I, numeral 2, subsection 2.33 of the SANCTIONS REGULATION, according to which it constitutes infringement: “Not fulfill its functions or any of the other provisions contemplated in the normative or what is stipulated or required by the SMV in exercise of its functions, specifically to Participants.”;
3.3. Of the Defenses Presented
35. Regarding this, FONBIENES EAFC states that all
payments made by the COMPLAINANT were of his own free will, such as those made on March 15 and 30, 2022, for the amount of US$ 6,000.00 (Six thousand and 00/100 dollars American) and US$ 257.03 (Two hundred fifty-seven and 03/100 American dollars), respectively, after three (3) months of having signed his collective fund contract, as stated by FONBIENES EAFC;
36. In this sense, FONBIENES EAFC mentions that, although it is true that, regarding the amount of US$ 6,000.00 (Six thousand and 00/100 American
dollars), deposited by the COMPLAINANT on March 15, 2022, identified that it is recognized in the administrator company's system as “Auction in Custody”, it is a term or concept that is used to reconcile the payment identified by a surplus deposited by the associate; however, according to FONBIENES EAFC it was used the mentioned term because it is a payment that is deposited and kept in its accounts, so, according to the administrator company, it could not be identified with another term since its system does not allow it;
37. Additionally to this, FONBIENES EAFC maintains
that on May 26, 2022, the COMPLAINANT requested the return of the amount paid of US$ 6,000.00 (Six thousand and 00/100 American dollars), which, according to FONBIENES EAFC, was attended to; nevertheless, it states that an observation was presented, since the bank account had to be in the name of the holder and not of his spouse, since it was a third party unrelated to the contractual relationship;
38. Therefore, once the observed issue was remedied,
FONBIENES EAFC states that it proceeded to make the deposit of US$ 5,999.99 (Five thousand nine hundred ninety-nine and 99/100 American dollars), on June 13 2022 into the associate's account;
39. In that context, FONBIENES EAFC argues that
the term “Auction in Custody” does not mean that said concept is directed to end of keeping payments in its accounts for possible future auctions, since, according to the administrator company, it is not considered as capital applicable to any assembly, given that in no way, and according to the REGULATION, such figure is not in concordance with the same functioning of its system;
40. For which, FONBIENES EAFC mentions that for
greater support, it attaches the electronic sales receipt dated May 31, 2022 which, according to the administrator company, was prepared subsequent to the request for return of said contribution to the associate and in which it appears in its description the recognition of two (2) amounts described as “capital in custody” and “administration in custody”, accrediting, according to FONBIENES EAFC, that in no way was it a concept for the use or application of some possible future auction and only its use is strictly by the term of “custody” and justify the exit of money for accounting reasons. Therefore, according to FONBIENES EAFC, it complied with carrying out the

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 extorno por la totalidad del monto solicitado por el DENUNCIANTE, sin realizar ni aplicar descuento alguno sobre dicho concepto adicional pagado por el DENUNCIANTE;
41. In this line, FONBIENES EAFC specifies that the
COMPLAINANT not only duly signed the CONTRACT, but that, prior to the signing thereof, the COMPLAINANT signed the document known as proforma, which according to the administrator company, expressly stated that the allocation modalities were by lottery and auction. Therefore, according to the administrator company, it was known to the COMPLAINANT that no sales executive, direct or indirect, could commit to allocating or delivering the asset on a specific date;
42. On the other hand, regarding the start of the present
administrative sanctioning procedure, FONBIENES EAFC maintains that it must be taken into account that the administrator company complied with proceeding with the return of the additional payment held in its accounts. In this sense, FONBIENES EAFC states that it is not true that it captures and holds in its accounts credits that do not correspond to the fulfillment, whether by payment for auction or any other concept established in the REGULATION and/or CONTRACT. Since, according to the administrator company, it is the associate himself who makes his own payments and not at the request or express requirement of FONBIENES EAFC. Thus, the administrator company considers that there would have been no commission of the imputed offense;
43. Likewise, FONBIENES EAFC alleges that since
t he associate is the one who makes the payment of his credits, it is the same person entitled to request the return thereof and not on the initiative of FONBIENES EAFC, since, according to what stated by the administrator company, in such request the requirement and the number of the account to deposit the amount to be returned must be indicated, the same which according to FONBIENES EAFC was carried out without any complication, and before the filing of the complaint;
44. In this way, FONBIENES EAFC indicates that,
article 255, letter f), numeral 1 of the Single Text Ordered of Law N° 27444 - General Administrative Procedure Law, approved by Supreme Decree N° 004-2019-
JUS (hereinafter, TUO of the LPAG) establishes that the voluntary subsanation of an offending conduct prior to the start of an administrative sanctioning procedure constitutes an exemption from administrative responsibility. In this sense, FONBIENES EAFC requests that the voluntary subsanation of the imputed offense be taken into consideration and that it be determined that the application of a sanction to FONBIENES EAFC does not correspond;
45. FONBIENES EAFC indicates that, notwithstanding the above
exposed, in the event that a sanction is intended to be imposed for the commission of the imputed offense, it requests that the last paragraph of article 25 of the SANCTIONS REGULATION be applied to it, and in this sense, that a sanction lower than the legal minimum established for the offense imputed to it be imposed, this based on the
article 248, item 3 of the TUO of the LPAG;
3.4. Analysis of the Defenses
46. Regarding this, concerning the fact that the credits
made by the COMPLAINANT were of his own free will, and not at the request or requirement of FONBIENES EAFC; it is necessary to point out that although the COMPLAINANT made the credit of the amount of US$ 6,000.00, the capture by FONBIENES EAFC

PERÚ Ministerio de Economía y Finanzas

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 and maintenance in its accounts of said credit, could only occur due to the fulfillment of payment of some concept regulated in the CONTRACT, in accordance with the specifications of the PROGRAM approved;
47. However, the concept Auction in Custody,
nomenclature that the administrator company gives to the credit of the amount of US$ 6,000.00 made by the COMPLAINANT in favor of FONBIENES EAFC, is not found regulated within the specifications of the PROGRAM, so it does not constitute a payment concept that is regulated in the CONTRACT, nor in the REGULATION, and therefore, of a payment that the administrator company had been authorized to capture and hold in custody;
48. In this sense, FONBIENES EAFC should have acted
diligently proceeding with the necessary actions for the immediate return of said credit and not holding it in its accounts;
49. On the other hand, concerning the concept
“Auction in custody”, with which FONBIENES EAFC identified the credit of US$ 6,000.00 that the COMPLAINANT deposited in its favor, is the one that, according to the administrator company, allows its information system for the registration of credits in its bank accounts that correspond to an excess deposited by the associate, since according to what is sustained by FONBIENES EAFC, its information system does not allow them the registration or identification of these excesses with another term, it must be pointed out that the nomenclature “Auction in custody” given by FONBIENES EAFC, or any other that could or might have been given to said credit according to (or not) with the parameters of its information systems, does not change the offending fact imputed, regarding that FONBIENES EAFC captured and held in its accounts, funds of the COMPLAINANT for the amount of US$ 6,000.00, which did not correspond to any concept regulated by the REGULATION or specified in the PROGRAM and hence in the CONTRACT;
50. In this way, regardless of the concept
or term used by FONBIENES EAFC to register the credit of the COMPLAINANT, it did not correspond to the administrator company to capture and hold in its accounts said funds of the COMPLAINANT;
51. Additionally, regarding the amount of
US$ 6,000.00 corresponding to an “excess deposited by the associate”, that is, what would be a credit of the associate to identify, it must be pointed out that, according to what is observed in the statement of account of the COMPLAINANT as of April 1, 2022, presented by the administrator company, said credit had already been identified by FONBIENES EAFC as made by the COMPLAINANT, so that, the fact of having captured said funds of the COMPLAINANT without identifying its concept and having retained it for almost three (3) months, does not exempt it from the offense incurred, but rather confirms it;
52. Regarding this, it is necessary to mention that
FONBIENES EAFC did not accredit any management carried out, either internally or with the COMPLAINANT, with the aim of proceeding with its immediate return; but, on the contrary, once received the credit made by the COMPLAINANT, it maintained it for almost three (3) months, and only proceeded with the return after the claim and requirement of return by part of the COMPLAINANT;
53. Also, regarding what was stated by
FONBIENES EAFC concerning the Electronic Sales Receipt of May 31, 2022, which would have been drawn up subsequently to the request for return by part of the

PERÚ Ministerio de Economía y Finanzas

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 COMPLAINANT, and in which appear the concepts of capital in custody and administration in custody, prove that in no way were the US$ 6,000.00 received from the COMPLAINANT a concept for the use or application of any possible future auction and that their use was strictly for the term custody and to support the exit of money for accounting reasons, it must be reiterated that the charge imputed refers to the fact that FONBIENES EAFC received and held in its accounts funds of the COMPLAINANT without any support, for which reason, the issuance of payment receipts under the concepts indicated, to support the cash movements carried out and their accounting records, does not disprove in any way the charge imputed;
54. Additionally to this, and in accordance with the REGULATION,
the function of collective fund companies to capture and hold funds must be carried out in accordance with the specifications of the Approved Program, and therefore, in accordance with what is established in the collective fund administration contract; for which reason, the custody of funds of associates different from the specifications of the PROGRAM, is not proper to collective fund companies;
55. Without prejudice to this, it must be clarified that
FONBIENES EAFC has only presented attached to its defenses the Electronic Sales Receipt No. B003-00109725 of March 31, 2022 for the amount of US$ 5,735.13, and an Electronic Credit Note No. BC03-00004664 of May 31, 20226 for the amount of US$ 264.86. However, the return made by FONBIENES EAFC to the COMPLAINANT, was made on June 13, 2022, in accordance with what was accredited by the administrator society itself. Likewise, said receipts allow accrediting that the administrator company effectively maintained in its accounts the funds of the COMPLAINANT, without them corresponding to a concept supported in the approved program;
56. It should be noted that FONBIENES EAFC should reconcile
the amount of US$ 6,000.00 deposited in its bank account by the COMPLAINANT, identify its concept in accordance with what is established in the CONTRACT and REGULATION, and upon verifying that said deposit did not correspond to a valid support in accordance with the CONTRACT and PROGRAM, proceed with the necessary actions for its immediate return without it being necessary a request by part of the COMPLAINANT and not holding it in its accounts, as occurred in this case;
57. On the other hand, concerning that the
voluntary subsanation of the imputed offense be taken into consideration, since FONBIENES EAFC made the return to the COMPLAINANT of the amount of US$ 6,000.00 with prior to the start of the present administrative sanctioning procedure, it must be taken into account that, in accordance with the documents in the file, FONBIENES EAFC effected the return of said amount to the COMPLAINANT on June 13, 2022, with which, on that date, the administrator company ceased to hold said funds, this is, before the start of the present administrative sanctioning procedure; in this sense, in accordance with article 27, letter f) of the SANCTIONS REGULATION, it is established that the subsanation by part of the possible sanctioned person of the act or omission imputed as constitutive of an administrative offense, prior to the notification of the imputation of charges, must be voluntary, such that for it to have such condition, previously to the subsanation there must not occur the requirement of fulfillment of the obligation;
58. Thus, it must be pointed out that the COMPLAINANT,
through the LETTER OF REQUEST FOR RETURN (of May 26, 2022), required FONBIENES EAFC the return of said amount deposited in the accounts of the administrator company, in such a way that the mentioned return of the amount was as a consequence of a requirement of its fulfillment, so that said subsanation was not done voluntarily, and therefore, it does not correspond to apply the exemption from responsibility for voluntary subsanation, alleged by FONBIENES EAFC;
59. For the foregoing, FONBIENES EAFC has not
disproved the charge imputed and consequently it has been accredited that the administrator company did not comply with what is provided in article 35 of the REGULATION and Clause 17, numeral 17.1, letter b) of the CONTRACT;
60. Therefore, FONBIENES EAFC incurred one (1)
offense classified as serious, typified in Annex I, numeral 2, item 2.33 of the SANCTIONS REGULATION;
IV. EVALUATION OF THE SANCTION
61. In accordance with article 7 of Legislative Decree N°
21907 on Collective Fund Companies, modified by Law N° 27659 and article 25 of the SANCTIONS REGULATION; in concordance with article 248, numeral 37 of the TUO OF THE LPAG and article 2578 of the aforementioned normative body; the sanctions

7 “Article 248.- Principles of the administrative sanctioning power The sanctioning power of all entities is additionally governed by the following special principles:
(…)
3. Reasonableness.- Authorities must foresee that the commission of the sanctionable conduct does not result more advantageous 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 classified as an offense, observing the following criteria that are indicated for purposes of their graduation:
a) The illicit benefit resulting from the commission of the offense; b) The probability of detection of the offense; c) The gravity of the damage to the public interest and/or legal good protected; d) The economic harm caused; e) 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. f) The circumstances of the commission of the offense; and g) The existence or non-existence of intent in the conduct of the offender.” 8 “Article 257°.- Exemptions and mitigating conditions of responsibility for offenses 1.- The following constitute conditions exempting 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. f) Voluntary subsanation by part of the possible sanctioned person of the act or omission imputed as constitutive of administrative offense, prior to the notification of the imputation of charges referred to in item 3) of
article 255.
2.- The following constitute mitigating conditions of responsibility for offenses:
a) If an administrative sanctioning procedure has been started, the offender recognizes his responsibility expressly and in writing. In cases where the applicable sanction is a fine, this is reduced to an amount no less than half of its amount. b) Others that are established by special norm.”

PERÚ Ministerio de Economía y Finanzas

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 administrative sanctions that are imposed must take into account the criteria disposed by Legislative Decree N° 21907, the SANCTIONS REGULATION and the TUO OF THE LPAG;
62. Within that framework, the evaluation of the sanction
must consider: a) Antecedents of the offender; b) Recidivism; c) Circumstances of the commission of the offense; d) Economic harm caused and its repercussion in the market; e) Illicit benefit resulting from the commission of the offense; f) Probability of detection of the offense; g) Gravity of the damage to the public interest and/or legal good protected; h) Existence or non-existence of intent in the conduct of the offender;
63. In this sense, for purposes of harmonizing the criteria
of the TUO OF THE LPAG, with those indicated in Legislative Decree N° 21907 and in the SANCTIONS REGULATION, and for these criteria to be considered adequately for their valuation to observe the principle of reasonableness and that the sanction to be imposed adapts to these, it proceeds to analyze the following criteria;
64. Regarding antecedents, in conformity with
what is provided by article 25, letter a) of the SANCTIONS REGULATION, antecedents constitute firm sanctions imposed by the SMV within a period of four (4) years prior to the commission of the offense to be sanctioned. Said article specifies that the commission of the same offense in the year prior to the offense to be sanctioned is not considered antecedent. In this sense, from the review carried out in said period, it has been verified that FONBIENES EAFC registers the following firm sanctions:
No Resolution Resolved Finality i
Assistant Superintendent Resolution
SMV No. 049-
2020-SMV/109
FONBIENES EAFC is sanctioned with a fine of 7.44175 UIT for having incurred five (5) offenses of a nature light typified in Annex XIV, numeral 3, item 3.1 of the previous Sanctions Regulation and two (2) offenses of a light nature typified in Annex I, numeral 3, item 3.1, of the SANCTIONS REGULATION, for not having complied with present periodic information within the deadline established by the applicable regulation referred to intermediate financial information and management report. 14/12/2019 ii Assistant Superintendent Resolution SMV No. 038- 2021-SMV/1010 FONBIENES EAFC is sanctioned with a fine of 3 UIT for having incurred four (4) offenses of a light nature typified in Annex I, numeral 3, item 3.6 of the SANCTIONS REGULATION, for not complying with what is provided by articles 72° and 74° of the Regulation of the Collective Funds System and its Collective Fund Administrator Companies, as well as the Manual of Technical Specifications for the submission to the SMV of information from the Companies Collective Fund Administrators, for not sending promptly, in accordance with technical specifications, Information Files on the collective funds system. 05/11/2021
65. Concerning recidivism for the commission of the
same offense, the firm sanction imposed by the SMV within a period of one (1) year prior to the commission of the offense to be sanctioned is taken into account. Within this framework, it must be stated that FONBIENES EAFC does not present sanctions within the period indicated above, for the commission of the same offense subject of analysis, in the present administrative sanctioning procedure, so that recidivism is not configured;
66. Concerning the circumstances of the commission of
the offense, it must be mentioned that FONBIENES EAFC, in its capacity as a company supervised by the SMV, knows the norms that regulate the system of collective funds and in this sense, its obligations referred to complying with what is established in
article 35 of the REGULATION and Clause 17, numeral 17.1 of the CONTRACT. Notwithstanding, it captured and held in its accounts funds of the COMPLAINANT that did not correspond to any concept in accordance with the AUTHORIZED PROGRAM;
67. Likewise, it must be taken into account that
since the deposit of the amount of US$ 6,000.00 made by the COMPLAINANT on March 15, 2022, until the return thereof by part of FONBIENES EAFC on June 13, 2022, the administrator company maintained said funds for almost three (3) months; the respective return being made subsequent to the request for return made by the COMPLAINANT on May 26, 2022. It must be indicated that the COMPLAINANT deposited said funds in a collector account of the system administered by FONBIENES EAFC; and not in a current account of the administrator;
68. Without prejudice to the above, it should be noted that although
the COMPLAINANT made the deposit on March 15, 2022, the request for return of the funds he made on May 25, 2022 through a complaint; however in said complaint he does not indicate to which account FONBIENES EAFC should make the deposit of the US$ 6,000.00. Subsequently, through a letter of May 26, 2026, the COMPLAINANT indicates in which bank account the deposit should be made;
69. Notwithstanding what was stated, it must be indicated that the
COMPLAINANT was not the holder of the bank account that he indicated in his letter of May 26, 2022, which was observed by the administrator through a phone call11 of June 11, 2022; that is, between the request for return and the call by part of the administrator twelve (12) business days elapsed. Subsequently, two (2) days after the observation was remedied by part of the COMPLAINANT, in accordance with the documents in the file, FONBIENES EAFC accredited having made the return to the COMPLAINANT of the amount of US$ 5,999.99 (Five thousand nine hundred ninety-nine and 99/100) on June 13, 2022;
70. Concerning the harm caused and to the repercussion
in the market, it has not been evidenced that the offense in which FONBIENES EAFC has incurred has had repercussion in the system of collective funds nor produced a concrete quantifiable harm in the latter. Notwithstanding, this fact can affect the trust of the associates or potential associates in the system of collective funds;
71. Regarding the illicit benefit resulting from the
commission of the offenses, it must be pointed out that it has not been reached to accredit that FONBIENES EAFC has obtained a benefit that bears a direct relationship with the offense subject of analysis in the present administrative procedure;Concerning the probability of detection of the offenses, it must be indicated that the fact constitutive of the offense committed by FONBIENES EAFC was evidenced upon verifying compliance with the applicable regulation for the development of its functions, based on the facts exposed by the COMPLAINANT in his complaint filed against

11 According to telephone call records presented by FONBIENES EAFC in its defenses.

PERÚ Ministerio de Economía y Finanzas

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

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and the authorship the managing company, so the probability of detection of the infraction was low;
72. Regarding the gravity of the damage to the public interest
and protected legal interest, in the present case it has not been possible to prove that the action of FONBIENES EAFC in the commission of the infraction subject of analysis in the present sanctioning procedure has caused damage to the determinable public interest;
73. However, a protected legal interest has been affected,
consisting in the protection of the associate, since FONBIENES EAFC captured and safeguarded funds deposited by the COMPLAINANT that did not correspond to any concept in accordance with the specifications of the AUTHORIZED PROGRAM. It should be noted that the unfulfilled obligation aims to prevent the affectation of the interests of the associates, in particular their confidence in the collective fund system, since it is the function and obligation of collective fund managing companies to capture and safeguard funds only in accordance with the specifications of the authorized program, thus providing security to the associates and complying with what is provided in the REGULATION and in the CONTRACT;
74. In this way, taking into account that the
collective fund managing companies have the obligation to act in strict compliance with the regulations applicable to them, such as the provisions established in the REGULATION and in the CONTRACT, in safeguarding the collective fund system, the transgression of such regulations affects the legal interest referred to the integrity of the market, that is, of the collective fund system and especially affects the confidence of the associates or potential associates in the system of collective funds;
75. Regarding the existence or not of intent
in the conduct of the offender, it must be specified that no intent has been verified in the conduct of FONBIENES EAFC regarding the infraction subject of analysis;
76. In addition to the above, it corresponds to analyze the
assumptions of exemption and mitigation of responsibility established in article 257 of the TUO LPAG, as well as the conditions of mitigation and exemption of responsibility established in articles 26 and 27 of the SANCTIONS REGULATION;
77. In that sense, in accordance with what has been analyzed, and
with what is established in article 257, numeral 1 of the TUO OF THE LPAG and article 27 of the SANCTIONS REGULATION, it is not observed that in the present case any of the assumptions that constitute conditions exempting responsibility have been configured;
78. With regard to the voluntary declaration of the
commission of the infraction, the contribution of the offender to its clarification and the remediation carried out subsequently to its request, established in article 257, numeral 2, item a) and b) of the TUO of the LPAG and in article 26, letters a), b) and c) of the SANCTIONS REGULATION, it must be pointed out that FONBIENES EAFC has not recognized expressly its responsibility for the infraction in which it has incurred; however it has contributed to its clarification;
79. Likewise, it is considered that what is established
in article 26, letter c) of the SANCTIONS REGULATION, subject of the present sanctioning procedure, is applicable, since it made the return to the COMPLAINANT of the referenced amount, subsequent to the request made by the COMPLAINANT;

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and the authorship
80. From the above, it is concluded that FONBIENES EAFC
has committed one (1) infraction classified as grave typified in
Annex I, numeral 2, item 2.33 of the SANCTIONS REGULATION, so it corresponds
impose on FONBIENES EAFC a sanction corresponding to the infraction classified as grave in accordance with article 38 of the SANCTIONS REGULATION;
81. However, taking into account the sanctioning criteria
analyzed, and in application of the Principle of Reasonableness contemplated in article 248, numeral 3 of the TUO OF THE LPAG, which states that the sanctions to be applied must be proportional to the non-compliance classified as an infraction, it must be considered that it has not been possible to prove that the infraction analyzed has caused economic harm or that it has had repercussions in the market or that it has caused damage to the determinable public interest, that FONBIENES EAFC proceeded with the return to the COMPLAINANT after the request made by the same and that FONBIENES EAFC is not a recidivist regarding the infraction analyzed;
82. In that sense, this Adjunct Superintendence,
in accordance with what is provided in the last paragraph of article 25 of the SANCTIONS REGULATION, considers that it corresponds to impose on FONBIENES EAFC a sanction of fine applicable to minor infractions, in accordance with article 39 of the SANCTIONS REGULATION, for the infraction under evaluation in the present administrative sanctioning procedure;
83. Being in accordance with what is provided by article 32°, numeral
16, of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF and its modifications; RESOLVES:
Article 1º.- Declare that Fonbienes Perú EAFC S.A. has
incurred in one (1) infraction classified as grave as established in Annex I, numeral 2, item 2.33 of the Sanctions Regulation, approved by Resolution SMV No. 035-2018-SMV/01, by having captured and safeguarded funds from the COMPLAINANT that did not correspond to the specifications of the PROGRAM.
Article 2º.- Sanction Fonbienes Perú EAFC S.A. with
a reprimand for what is provided in article 1° of this resolution.
Article 3º.- This resolution does not exhaust the administrative
path, unless it is consented, being able to be challenged before the Adjunct Superintendence of Prudential Supervision by filing the reconsideration or appeal resource presented before the same, within the term of fifteen (15) business days counted from the day following its notification.
Article 4º.- In the event that this resolution is not
subject to challenge through reconsideration or appeal resource within the term of fifteen (15) business days of being notified and becomes final, it must be published in the Institutional Page of the SMV in the Unique Digital Platform of the Peruvian State, in observance of what is provided by numeral 1, article 7º of the Policy on diffusion of normative projects, general character legal norms, early agenda and other administrative acts of the SMV, approved by Resolution SMV No. 014-2014-SMV/01 and its modification, and by what is provided in article 14° of the Sanctions Regulation, approved by Resolution SMV No. 035-2018-SMV/01.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and the authorship
Article 5º.- Transcribe this resolution to
Fonbienes Perú EAFC S.A.
Register, communicate and publish.
Omar Gutiérrez Ochoa
Adjunct Superintendent
Adjunct Superintendence of Prudential Supervision