PERÚ Ministry of Economy and Finance
SMV
Superintendency of the Market in Securities

"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"

Deputy Superintendency Resolution SMV

No. 036-2024-SMV/10

Lima, 01 July 2024

Summary: The reconsideration appeal filed by Inversión y Desarrollo Sociedad Agente de Bolsa S.A.C. against Deputy Superintendency Resolution SMV No. 013-2022-SMV/10 is declared unfounded. However, by application of the principle of non-retroactivity set forth in numeral 5 of article 248 of the Single Ordered Text of the General Administrative Procedure Law; it is appropriate to modify the sanction established in article 2 of the aforementioned resolution.

Administered party
:
Inversión y Desarrollo Sociedad Agente de Bolsa S.A.C.
Subject
:
Reconsideration appeal filed against the Resolution of Deputy Superintendency SMV No. 013-2022-SMV/10 File No.:
2021044151

The Deputy Superintendent of Prudential Supervision

WHEREAS:

The administrative file No. 2021044151, the reconsideration appeal filed by Inversión y Desarrollo Sociedad Agente de Bolsa S.A.C. against Deputy Superintendency Resolution SMV No. 013-2022-SMV/10 and Report No. 798-2024-SMV/10.3, issued by the General Intendancy of Prudential Compliance; and

CONSIDERING:

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

I. BACKGROUND

2. By Deputy Superintendency Resolution SMV No. 013-2022-SMV/10 (hereinafter, RESOLUTION), it was resolved to sanction INVERSIÓN Y DESARROLLO SAB with a fine of 2.1115 Tax Units (UIT), for having incurred in one (1) infraction of a minor nature classified in Annex I, numeral 3, subparagraph 3.1 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), for having failed to submit the periodic financial information within the term established in the applicable regulations;

3. On 13 September 2022 Inversión y Desarrollo Sociedad Agente de Bolsa S.A.C. (hereinafter, INVERSIÓN Y DESARROLLO SAB) filed a reconsideration appeal against the RESOLUTION;

4. The reconsideration appeal has been evaluated by the General Intendancy of Prudential Compliance in Report No. 798-2024-SMV/10.3, which has been submitted to the knowledge of this Deputy Superintendency;

5. In observance of the Principle of Due Process contemplated both in article IV, subparagraph 1, numeral 1.2, of the Preliminary Title, as well as in article 248, subparagraph 2 of the Single Ordered 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 SMV SANCTIONS REGULATION, by means of Official Letter No. 2556-2024-SMV/10, the administrative file to which this resolution refers was made available to INVERSIÓN Y DESARROLLO SAB for its review;

II. ON THE ADMISSIBILITY OF THE RECONSIDERATION APPEAL

6. According to the provisions of article 32, numeral 27 of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF, it is the function of the Deputy Superintendency of Prudential Supervision to resolve reconsideration appeals against the resolutions it issues;

7. Likewise, article 218 numeral 218.2 of the TUO LPAG establishes that the term for filing appeals is fifteen (15) peremptory days. According to the provisions of article 144 of the TUO LPAG, the aforementioned term shall begin to be counted from the day following the legal notification of the challenged administrative act;

8. In this regard, it has been verified that the reconsideration appeal was filed within the term established by article 218 of the TUO LPAG;

9. 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 cases of administrative acts issued by bodies that constitute a single instance, new evidence is not required;

III. ON THE ARGUMENTS PRESENTED BY INVERSIÓN Y DESARROLLO SAB

10. INVERSIÓN Y DESARROLLO SAB states that in accordance with the provisions of article 6, literal a) fourth paragraph of the SANCTIONS REGULATION, 1 which it cites, the General Intendancy of Prudential Compliance is obliged to grant administered parties a term of no less than five (5) days for the submission of defenses, if during the respective sanctioning procedure other possible infractions are identified. It adds that on 19 November 2021, by means of Official Letter No. 4569-2021-SMV/10.3 (hereinafter, OFFICIAL LETTER OF CHARGES), charges were formulated against it in the following terms:

"I. ON THE FACTS THAT OCCURRED From the verification in the SMV records, it has been observed that your represented company would not have complied with submitting within the term established by the regulations its individual financial statements corresponding to the closing of the month of December 2020. It should be noted that the deadline for the submission of this information was 30 January 2021; however, it was submitted on 2 February 2021, the day following its approval.

II. ON THE APPLICABLE REGULATIONS Regarding the observations indicated in the preceding section, INVERSIÓN Y DESARROLLO SAB would have failed to comply with the provisions of article 95 of the RAI, which provide the following:

"Article 95.- Obligations The Agents must submit to the SMV their financial statements and Complementary Information corresponding to each month-end, within the following thirty (30) calendar days. (...)".

III. INFRINGEMENT THAT INVERSIÓN Y DESARROLLO SAB WOULD HAVE COMMITTED The non-compliance indicated in section I of this official letter is classified as an infringement of a minor nature, in accordance with the provisions of Annex I, numeral 3, subparagraph 3.1 of the SANCTIONS REGULATION, according to which the following constitutes an infringement: "Submitting after the established deadline, or doing so incompletely, or, without observing the technical specifications approved by the SMV or without communicating the approval by the corresponding corporate body, to the SMV, to the Exchange, to the entity in charge of the centralized negotiation mechanism or to any other entity or subject of the securities market, the audited individual or consolidated financial information, the individual or consolidated interim financial statements, management report, special audit report, material events and annual reports". (Emphasis added by INVERSIÓN Y DESARROLLO SAB);

11. In this regard, the stock brokerage company states that the transcribed paragraphs show that by way of charge it was only accused of not submitting within the established deadline its individual financial statements closed as of December 2020. Furthermore, it cites recital 10 of RESOLUCIÓN2 ;

12. However, it alleges that both in Report No. 39-2022-SMV/10.3 (hereinafter, REPORT) of the instructing body and in the RESOLUCIÓN

[1] Article 16.- INSTRUCTING PHASE a) The instructing phase begins with the imputation of charges by the General Compliance Intendancies, initiating the administrative sanctioning procedure. (...). The General Compliance Intendancies grant the administered parties a period of five (5) to fifteen (15) days for the submission of defenses, (...). (...) If once the sanctioning procedure has begun, acts or facts that constitute other possible infringements are identified, the General Compliance Intendancies must impute the corresponding charges, in accordance with the provisions of the preceding paragraph. (...)

[2] II. ISSUES TO BE DETERMINED (...) 10. Whether INVERSIÓN Y DESARROLLO SAB incurred or not in an infringement by not having submitted the individual financial statements corresponding to the month-end of December 2020, subject of charges, within the deadline established in article 95° of the RAI, in force at the date of the events;

infringements that were not previously communicated as charges to INVERSIÓN Y DESARROLLO SAB would have been incorporated, rendering the RESOLUCIÓN null and void with inexcusable and irreversible nullity since it is based on the aforementioned infringements:

REPORT RESOLUCIÓN
ON THE DUTY OF DILIGENCE
Pág. 6, paragraph in fine
It is pertinent to point out that INVERSIÓN Y
DESARROLLO SAB is a company supervised by the
SMV, with operating authorization granted through Resolución CONASEV No.
900-91-EF/94.10, dated 17 December 1991 and is aware of the applicable regulations for the submission of its financial statements corresponding to each month-end, for which it has the obligation to act diligently in the communication of the aforementioned information. Not withstanding, this did not occur, since said lack of diligence led to INVERSIÓN Y DESARROLLO SAB incurring in the infringement subject of charges.
31. (...)
therefore, since the referred schedules are of knowledge of the stock brokerage company, its duty of diligence, foreseeing some contingency, should have led it to adopt measures that would allow it to submit, if applicable, its communication within said schedule, which did not occur in the present case;
39. It should be noted that INVERSIÓN Y DESARROLLO SAB
is a company supervised by the SMV, with operating authorization granted through Resolución CONASEV No. 900-91-EF/94.10, dated 17 December 1991 and is aware of the applicable regulations for the submission of its financial statements corresponding to each month- end, for which it has the obligation to act diligently in the communication of the aforementioned information. Notwithstanding, this did not occur, since said lack of diligence led to INVERSIÓN Y DESARROLLO SAB incurring in the infringement subject of charges.
ON THE SIGNATURE OF A CERTIFIED PUBLIC ACCOUNTANT Pág. 5 In addition to the aforementioned, the last paragraph of
article 95° of the RAI establishes the following:
"Article 95.- Obligations
The Agents must submit to the SMV their financial statements and Complementary Information corresponding to each month-end, within the following thirty (30) calendar days.
(...)
The financial statements mentioned in the present article, to be submitted to the SMV, must bear the signature of a certified public accountant registered.” (Underline added) Taking this into account, it has been verified in SIRYS that Ms. SEÑORA GALVEZ is the General Accountant of INVERSIÓN Y DESARROLLO SAB and it was also her signature that was required in order to be able to send the financial information; however,
36. As regards the fact that Mr. LUYO, although
he entered the MVNet System and validated and signed the financial information, he was unable to send the information; which would constitute evidence of the recorded contingency; it should be noted that in order for the financial information of a regulated entity to be sent to the SMV, it must bear the digital signature of both the legal representative, as well as that of the accountant, as provided in article 95 of the RAI and article 4 of the NORMAS; therefore, what was stated by the intermediary regarding the actions of Mr. Luyo does not constitute evidence of a contingency that prevents the use of MVNet for purposes of sending information; it being necessary to indicate that the condition of the two signatures was fulfilled with the sending of the information on 02 February 2021.

(Emphasis added by INVERSIÓN Y DESARROLLO SAB);

13. In this regard, the stock brokerage company states that there is a contravention of the SANCTIONS REGULATIONS, article 16, which is evident if it is considered that, mutatis mutandis, considerations developed in the REPORT have been reproduced as recitals in the RESOLUTION. Likewise, the sanctioning body incorporated motu proprio into the applicable (enforceable) regulations article 4 of the Rules on the Preparation and Presentation of Financial Statements and Annual Report by Entities Supervised by the SMV, approved by SMV Resolution No. 016-2015-SMV-01 (hereinafter, NORMAS), the contravention of article 16 of the SANCTIONS REGULATIONS being tangible;

14. Likewise, INVERSIÓN Y DESARROLLO SAB states that the enforceability of notifying it of the other infractions derives from the sanctioning principle “joinder of infractions”, determined by the REPORT and the RESOLUTION; in this regard, it cites the provisions of article 248, paragraph 6, of the TUO LPAG;

15. Consequently, INVERSIÓN Y DESARROLLO SAB states that the contravention of the aforementioned article 16 of the SANCTIONS REGULATIONS is demonstrated and therefore the nullity of the RESOLUTION, in application of article 10, literal a) of the TUO LPAG3 ;

16. On the other hand, the stock brokerage company considers that account should be taken of the legitimate use of the exception assumption provided by the Regulations of the MVNet and SMV Virtual System, approved by Superintendente Resolution No. 092-2020-SMV/02, (hereinafter, MVNET REGULATIONS) that INVERSIÓN Y DESARROLLO SAB made on 21 January 2022, which is challenged through reiterative arguments of nullities supported in the preceding section, the improper application of the SMV's internal regulations, as well as contradictions in argumentation;

17. Regarding the lack of objectivity, INVERSIÓN Y DESARROLLO SAB states that through recitals 26 and 27 of the RESOLUTION, what is clearly and expressly established in articles 25 and 26 of the MVNET REGULATIONS is denied. In this regard, it states that according to recital 26, the aforementioned articles 25 and 26 do not establish exceptions to the financial presentation deadlines, therefore one cannot be exempted from timely presentation compliance:

“26. In principle, it should be indicated that articles 25 and 26 of the MVNET SYSTEM REGULATIONS regulate aspects related to the assumptions of exception to the use of Mvnet and to the use of contingency Mvnet, respectively; however, they do not establish exceptions to the deadlines for presentation of financial information provided by article 95 of the RAI; therefore, based on their application, regulated entities cannot be exempted from timely compliance with the presentation of the information to which they are obligated;” (Emphasis added by INVERSIÓN Y DESARROLLO SAB);

18. In this regard, the stock brokerage company alleges that the transcribed argument does not take into account that articles 25 and 26 of the MVNET REGULATIONS constitute exception rules and therefore reveals that it is not considered that if the only means to send financial information is precisely MVNet (its use is mandatory), if due to a circumstance of material impossibility to send the information the regulated entity is excepted from using it, at the same time it is being excepted from compliance with the respective presentation deadline;

“Article 25.- Assumptions of exception to the use of MVNet The use of MVNet is mandatory by the obligated Entities. However, the obligated Entities are excepted from using it, for the sending of information, in the following situations: (…)

[3] Article 10.- Grounds for nullity The following are defects of the administrative act, which cause its nullity by operation of law: 1. The contravention of the Constitution, the laws or the regulatory norms. (…)

b) When the personal or laptop computer of the person authorized to digitally sign the documents, on behalf of the obligated Entity, is disabled for technological reasons of installation, configuration or application of the obligated Entity's information security policies.” (Emphasis added by INVERSIÓN Y DESARROLLO SAB);

19. On the other hand, INVERSIÓN Y DESARROLLO SAB states that, incurring an insurmountable contradiction (in cases where an exception to the use of MVNet corresponds, precisely because the corresponding electronic signatures are not available) with recitals 27 and 35, it is intended that an exception (excluding someone from something from the common rule, in this case from presenting the information on the established date) is at the same time the negation of it. It cannot be understood in any other way that an obligation is deemed fulfilled on a date different from the established one, and at the same time it is suggested that said fulfillment should have been made on the regulatoryly foreseen date:

“27. In the present case, it is an objective fact that the information subject to the charge was sent on 02 February 2021 in the manner and through the channels required by the regulations, so it is considered that the information was submitted one day late with respect to the deadline; it should be noted that in cases where an exception to the use of MVNet applies, the obligation to submit is deemed fulfilled on the date of sending the information with the corresponding electronic signature(s) (user and password); a situation that is not observed in the present case for 01 February 2021;

35. Regarding the fact that the request sent by email on 01 February 2026 complied with the provisions of article 26 of the MVNET SYSTEM REGULATIONS, and therefore, since the contingency presented was resolved on 02 February 2022 with the support of the SMV Help Desk Service, it must lead to the conclusion that the information was submitted in a timely manner; it should be reiterated that the aforementioned article 26 does not establish exceptions to the deadline set by article 95 of the RAI; therefore, if any contingency within the scope of article 25, literal b) of the MVNET SYSTEM REGULATIONS were to arise, the information subject to the charge, in order to be considered timely submitted, should have been sent electronically signed (user and password) on 01 February 2021; for which, as established by the aforementioned article 26, the Information Technology Office (OTI) of the SMV would have had to verify on that date whether the request fell within the scope of the aforementioned article 25, literal b), so that, if that were the case, it would determine the contingency period and enable the stock brokerage firm the option of sending by electronic signature, which did not occur on 01 February 2021 given the sending of the request at 23:47 hours; therefore, from the submission of a request, it cannot be intended that extensions of deadlines not contemplated by the regulations be established;” (Emphasis added by INVERSIÓN Y DESARROLLO SAB);

20. Additionally, the stock brokerage firm maintains that the reasoning set forth in recitals 27 and 35 does not take into account that through the final paragraph of article 26 of the MVNET REGULATIONS, in the case of literal b) of article 25, a period of five (5) business days is extended to regularize (legalize, bring a situation or irregular fact into compliance with law) the sending of information:

“Article 26.- Use of the contingency MVNet (…) In the preceding cases, by exception, the obligation to submit shall be deemed fulfilled on the date of sending the information with the corresponding electronic signature(s). Without prejudice to this, the Entities obligated in the cases of a) and b) of article 25 have a maximum period of five (5) business days to regularize the sending of information. The system will give you the option to sign the same information sent digitally.” (Emphasis added by INVERSIÓN Y DESARROLLO SAB);

21. Inversión Y Desarrollo SAB points out that through recital 33 of the RESOLUTION it reveals a contradiction between articles 1 and 6 of the MVNET REGULATIONS and articles 25 and 26 of the same regulations, since it is evident to show that the former prevail over the latter:

“33. With respect to articles 1 and 6 of the MVNET SYSTEM REGULATIONS, it should be noted that they define that they regulate the use of the MVNet System and the SMV Virtual, as well as the exchange of information through them, establishing the referred articles that the sending of information or documentation, by the obligated entities, through the MVNet or SMV Virtual, may be carried out, from Monday to Sunday, during the twenty-four (24) hours of the day; that is, a schedule is established for the sending and exchange of information, and not for the technical support that the SMV may provide to its administered entities in the event of any contingency they may have related to the MVNet and SMV system. In the present case, the MVNet System was operational, with no technical limitation observed for its use as a means of sending information to the SMV; it was functioning and available to the administered entities 24 hours a day on 01 February 2021;”. (Emphasis added by INVERSIÓN Y DESARROLLO SAB);

22. In this regard, INVERSIÓN Y DESARROLLO SAB maintains that antinomies are resolved by applying the principles of hierarchy and specialty of norms, so that if in this case the norms under which its case should have been or should be resolved are articles 25 and 26;

23. Likewise, it points out that it should be taken into account that in order to rebut the application of articles 25 and 26 of the MVNET REGULATIONS to the circumstances surrounding the submission of the financial information on 1 February 2021, recitals 31, 32, 34, 36 and 37 reveal arguments that, on the one hand, reiterate the requirement of compliance with additional obligations. Also the contravention of article VII of the Preliminary Title of the TUO LPAG, as well as a contravention between recitals 37 and 36;

“31. In this regard, it should be noted that the referred email was not sent within the working hours that apply to SMV officials, that is, from 08:45 to 17:00 according to the provisions of article 30 of the Internal Regulations of the Civil Servants of the SMV approved by Superintendency Resolution No. 056-2016-SMV/02, nor within the hours of the Help Desk Service that the SMV has implemented as technical support for administered entities, a schedule that was communicated to INVERSIÓN Y DESARROLLO SAB through Circulars No. 216-2015-SMV/09 and No. 312-2021-SMV/09, establishing the first as service hours from Monday to Friday from 09:00 a.m. 10:00 p.m. and the second Monday to Friday from 08:00 a.m. 10:00 p.m.; therefore, since the aforementioned schedules were known to the brokerage firm, its duty of diligence, foreseeing any contingency, should have led it to adopt measures that would allow it to submit, if applicable, its communication within said schedule, which did not occur in the present case; 32. For its part, it should be noted that the email atenciónSMV@smv.gob.pe is a means that allows the exchange of communication between the SMV and its administered entities, a means and functionality that, given current technological development, is operational 24 hours a day; which does not imply, as INVERSIÓN Y DESARROLLO SAB assumes in its arguments, that the officials of the aforementioned Help Desk Service are available 24 hours a day, insofar as they are subject to the schedules indicated above; (Emphasis added by INVERSIÓN Y DESARROLLO SAB);

24. INVERSIÓN Y DESARROLLO SAB states that the assertions made in the transcribed recitals 31 and 32 constitute a contravention of article VII of the Preliminary Title of the TUO LPAG, since the purpose of the norm (internal regulation) is to regulate the internal activity of SMV workers, so that in accordance with numeral 1 of the aforementioned article it cannot generate obligations for administered entities4 ;

“34. For its part, it should be indicated that article 13° of the REGLAMENTO DEL SISTEMA MVNET establishes that administered entities must have a Technical Manager, who is responsible for coordinating with the authorized personnel of their entity the use of Mvnet, in order to resolve technological aspects associated with the use of Mvnet, such as: installation, configuration, digital certificate, secure storage device software, digital signature software, document characteristics, among others, that contribute to the proper use of the system; therefore, in the event of any eventuality in the submission of its information, it is the Technical Manager responsible for helping to resolve it; the technical support that the SMV may provide does not imply a substitute for the functions and responsibilities of the aforementioned Technical Manager;

36. Regarding the fact that Mr. LUYO, despite having entered the MVNet System and validated and signed the financial information, could not submit the information; which would constitute evidence of the contingency recorded; it should be noted that in order for the financial information of an administered entity to be submitted to the SMV, it must have the digital signature of both the legal representative and the accountant, as provided in article 95 of the RAI and article 4 of the NORMAS; therefore, what was indicated by the intermediary regarding the actions of Mr. Luyo does not constitute evidence of a contingency that prevents the use of MVNet for the purpose of submitting information; it being necessary to indicate that the condition of the two signatures was fulfilled with the submission of the information on 02 February 2021;” (Emphasis added by INVERSIÓN Y DESARROLLO SAB);

25. It adds that in recitals 34 and 36 the attribution of new charges is outlined, which were not communicated in accordance with article 16 of the REGLAMENTO DE SANCIONES and consequently, vitiate the sanctioning procedure with nullity:

“37. Likewise, regarding the fact that the validation of the structured file presented errors, which would constitute evidence of the occurrence of a contingency that did not allow it to submit the information in a timely manner; it should be indicated that according to the BITACORA; although on 01 February 2021 at 21:49 and 22:03 hours, when validating the aforementioned file, MVNet evidenced the existence of errors, they were resolved by INVERSIÓN Y DESARROLLO SAB on that date at 22:51 as detailed below, so what was indicated also does not constitute evidence of a contingency that would prevent the submission of information;” (Emphasis added by INVERSIÓN Y DESARROLLO SAB);

26. INVERSIÓN Y DESARROLLO SAB points out that the comment expressed in recital 37 reveals a contradiction in the RESOLUCIÓN since it is not taken into account that according to recital 36 it is considered a contingency that the digital signature of the company's accountant could not be obtained;

27. On the other hand, the brokerage firm points out that with recitals 63 and 64 it is maintained that the exemption from liability provided in literal f), numeral 1, of article 257 of the TUO LPAG is not applicable:

“24. For its part, the brokerage firm indicates that notwithstanding the foregoing, the exemption from administrative liability referring to voluntary correction, established by literal f) of numeral 1 of article 257° of the TUO of Law No. 27444, approved by Supreme Decree No. 004-2019-JUS, is fully applicable. It should be noted that INVERSIÓN Y DESARROLLO SAB specifies that it must be considered that, strictly speaking, the submission of information on 02 February 2021 does not constitute a correction, since the

[4] Article VII.- Function of general provisions 1. Higher authorities may direct or guide in a general manner the activity of their subordinates through circulars, instructions and other similar ones, which, however, cannot create new obligations for administered entities

corresponding information uploaded on the first of February did not undergo modifications, which can be verified from the respective records held by the SMV since the aforementioned day 01 February 2021;

63. In addition to the foregoing, it is appropriate to analyze the exempting and mitigating grounds for liability established in article 257° of the TUO DE LA LPAG as well as the mitigating and exempting conditions of liability established in articles 26° and 27° of the REGLAMENTO DE SANCIONES.

64. In that sense, in accordance with the provisions of article 257°, numeral 1 of the TUO DE LA LPAG and article 27° of the REGLAMENTO DE SANCIONES, it is not observed that in the present case any of the assumptions that constitute conditions exempting from liability have been configured.

Likewise, it must be indicated that article 28°, literal b) of the REGLAMENTO DE SANCIONES establishes that the following are not subject to correction for the purposes of the provisions of article 27°, literal f): the late or incomplete presentation, or the non-presentation of important facts, financial information and annual reports;” (Emphasis own of INVERSIÓN Y DESARROLLO SAB);

28. However, INVERSIÓN Y DESARROLLO SAB points out that it is not taken into account that with the approval of the draft of the Sanction Criteria (SMV Resolution 024-2019 which remains published since 7 October 2019) legally article 28 of the REGLAMENTO DE SANCIONES will only become applicable to the presentation of financial information;

29. In this way, according to the stock brokerage company, currently literal f) of article 257 of the TUO LPAG is fully applicable by virtue of which, having presented the financial information before the charges were communicated, the imputed infraction is considered corrected, and therefore the imposed sanction is null;

IV. EVALUATION OF THE ARGUMENTS PRESENTED

30. INVERSIÓN Y DESARROLLO SAB alleges that the present administrative sanctioning procedure must be declared null, because the provisions of article 16 of the REGLAMENTO DE SANCIONES would have been breached. On the matter, the stock brokerage company points out that although through the OFICIO DE CARGOS it was imputed for not presenting within the established term its individual financial statements of December 2020, both in the INFORME and in the RESOLUCIÓN infractions would have been incorporated that were not previously communicated as charges to INVERSIÓN Y DESARROLLO SAB, vitiating the RESOLUCIÓN with nullity;

31. With regard to the foregoing, regarding the duty of diligence, the stock brokerage company refers to the final paragraph of page 6 of the INFORME and recitals 31 and 39; and, regarding the signature of a certified public accountant, to page 5 of the INFORME, as well as recital 36 of the RESOLUCIÓN. Additionally, INVERSIÓN Y DESARROLLO SAB points out that the referred article 16 of the REGLAMENTO DE SANCIONES is breached because the considerations developed in the INFORME have been included in the RESOLUCIÓN; and that the sanctioning body included article 4 of the NORMAS in the applicable regulations of the RESOLUCIÓN;

32. It adds that the enforceability of communicating the other infractions derives from the principle of concurrence of infractions established in article 248 of the TUO LPAG;

33. On the matter, it should be noted that both in the last paragraph of page 6 of the INFORME5 and recital 39 of the RESOLUCIÓN6, cited by the stock brokerage company, it is specified that INVERSIÓN Y DESARROLLO SAB, in its capacity as a company supervised by the SMV with authorization of operation granted through Resolution CONASEV N° 900-91-EF/94.10, dated 17 December 1991, that is, with more than twenty-eight years in the market, at the date of commission of the infraction subject to charges, has knowledge of the applicable regulations regarding the presentation of its financial statements at the close of each month; and by virtue of this, it had the obligation to act diligently in compliance with the communication of its individual financial statements corresponding to the close of December 2020 (hereinafter, ESTADOS FINANCIEROS);

34. It should be noted that the foregoing is indicated in attention to the determination of liability on the part of INVERSIÓN Y DESARROLLO SAB in the commission of the infraction subject to charges. In this regard, it must be specified that the liability of legal persons for the commission of an infraction is based on culpability for “organizational defects”, that is, in the lack of care that is evidenced by not having taken the necessary measures for the correct development of its activities in accordance with the regulations, that is, its lack of diligence7;

35. On the other hand, it should be noted that in recital 31 of the RESOLUCIÓN8 cited by INVERSIÓN Y DESARROLLO SAB, it is indicated that the service hours of the officials of the SMV Help Desk (service hours Monday to Friday from 09:00 a.m. 10:00 p.m. and the second Monday to Friday from 08:00 a.m. 10:00 p.m.) was informed through Circulars N° 216-2015-SMV/09 and N° 312-2021-SMV/09, therefore, INVERSIÓN Y DESARROLLO SAB should have adopted the necessary measures that would allow it to present some communication to said area of the SMV within said schedule, reason for which it is observed that in said recital it is not being stated that any provision has been breached by INVERSIÓN Y DESARROLLO SAB or expressly indicated that it is incurring in any administrative infraction;

[5] “It is pertinent to point out that INVERSIÓN Y DESARROLLO SAB is a company supervised by the SMV, with authorization of operation granted through Resolution CONASEV N° 900-91-EF/94.10, dated 17 December 1991 and has knowledge of the applicable regulations for the presentation of its financial statements corresponding to the close of each month, for which it has the obligation to act diligently in the communication of the aforementioned information. However, this did not occur, given that said lack of diligence led INVERSIÓN Y DESARROLLO SAB to incur in the infraction subject to charges.”

[6] 39. It should be noted that INVERSIÓN Y DESARROLLO SAB is a company supervised by the SMV, with operating authorization granted by CONASEV Resolution No. 900-91-EF/94.10, dated 17 December 1991, and is aware of the regulations applicable to the submission of its financial statements corresponding to the close of each month, and therefore has the obligation to act diligently in the communication of said information. However, this did not occur, since said lack of diligence led INVERSIÓN Y DESARROLLO SAB to incur the infringement that is the subject of the charges;

[7] Morón Urbina, J., 2019. Comments on the General Administrative Procedure Law. Volume II. 14th ed. Lima: Gaceta Jurídica, p. 458.

[8] “31. In this regard, it should be noted that the aforementioned email was not sent within the working hours that apply to SMV officials, that is, from 08:45 to 17:00 according to the provisions of article 30 of the Internal Regulations for Civil Servants of the SMV approved by Superintendent Resolution No. 056-2016-SMV/02, nor within the hours of the Help Desk Service that the SMV has implemented as technical support for the administered, hours that were communicated to INVERSIÓN Y DESARROLLO SAB through Circulars No. 216-2015-SMV/09 and No. 312-2021-SMV/09, the first establishing as service hours Monday to Friday from 09:00 a.m. 10:00 p.m. and the second Monday to Friday from 08:00 a.m. 10:00 p.m.; therefore, since the aforementioned hours were known to the stock brokerage company, its duty of diligence, foreseeing any contingency, should have led it to adopt measures that would allow it to submit, if applicable, its communication within said hours, which did not occur in the present case.”

36. Therefore, contrary to what was indicated by the stock brokerage company, it is not observed that in the recitals of the RESOLUTION an additional non-compliance was imputed to the accused through the OFFICIAL LETTER OF CHARGES;

37. In addition to the foregoing, it should be noted that considering within the “Applicable Regulations” section of the RESOLUTION article 4 of the NORMS does not constitute a change in the imputation of charges made through the OFFICIAL LETTER OF CHARGES, because the aforementioned article 4 is part of the regulations that were applied in the present case in the evaluation of the defenses submitted by INVERSIÓN Y DESARROLLO SAB carried out in the RESOLUTION in order to determine whether the stock brokerage company had indeed failed to comply with the provisions of article 95 of the RAI;

38. On this point, it should be highlighted that the only charge imputed in this administrative sanctioning procedure constitutes the untimely submission of the FINANCIAL STATEMENTS, failing to comply with the provisions of article 95 of the RAI, which in turn constitutes a minor infringement classified in Annex I, numeral 3, subparagraph 3.1 of the SANCTIONS REGULATIONS, as can be seen in recitals 40 and 41 of the RESOLUTION:

“40. Indeed, in the present case, INVERSIÓN Y DESARROLLO SAB, as has been stated, submitted the information described in the third recital of this resolution one (1) day late with respect to the deadline;

41. In view of the foregoing, it is concluded that INVERSIÓN Y DESARROLLO SAB incurred an infringement of a minor nature, in accordance with the provisions of Annex I, numeral 3, subparagraph 3.1 of the SANCTIONS REGULATIONS, according to which it constitutes an infringement: “To submit outside the established deadline, or to do so incompletely, or, without observing the technical specifications approved by the SMV or without communicating the approval by the corresponding corporate body, to the SMV, to the Exchange, to the entity in charge of the centralized negotiation mechanism or to any other entity or subject of the securities market, the audited individual or consolidated financial information, the individual or consolidated interim financial statements, management report, special audit report, material events and annual reports”; (Underline added);

39. In accordance with the foregoing, it is not observed that the provisions of article 16 of the SANCTIONS REGULATIONS have been breached, so it is not appropriate to declare the nullity of the RESOLUTION in accordance with the provisions of article 10, literal a), of the TUO LPAG;

40. On the other hand, INVERSIÓN Y DESARROLLO SAB alleges an alleged improper application of the internal regulations of the SMV, as well as contradictions in the argumentation in the RESOLUTION. In this regard, it states that in recitals 26 and 27 it denies what is clearly or expressly established in articles 25 and 26 of the MVNET REGULATIONS, since recital 26 would indicate that the cited articles of the MVNET REGULATIONS do not establish exceptions to the financial submission deadlines, so it cannot be exempted from timely submission compliance;

41. On this point, the stock brokerage company alleges that it has not been taken into account that articles 259 and 2610 of the MVNET REGULATIONS constitute exception rules and therefore considers that if for some circumstance it is not possible to use the only means to submit information, the MVNet system, the administered is exempted from using it, and at the same time is exempted from compliance with the respective submission deadline;

42. On this matter, it is reiterated that, in accordance with the provisions of recital 26 of the RESOLUTION11, article 25 of the MVNET REGULATIONS includes those cases in which entities under the supervision of the SMV are excepted from the use of the MVNet system, that is, it regulates aspects related to the cases of exception to the use of MVNet; and in accordance with the foregoing, article 26 of the MVNet Regulations establishes that the procedure to be followed, for certain cases, in order to use the Contingency MVNet. However, said articles do not expressly establish exceptions to the deadlines for submitting financial information set forth in article 95 of the RAI, contrary to what INVERSIÓN Y DESARROLLO SAB alleges;

43. In that sense, what INVERSIÓN Y DESARROLLO SAB alleges on this point lacks merit;

[9] Article 25.- Cases of exception to the use of MVNet The use of MVNet is mandatory for obligated Entities. However, obligated Entities are exempted from using it, for the submission of information, in the following situations: a) When the digital certificate of the person authorized to digitally sign documents, on behalf of the obligated Entity, has expired. b) When the personal or laptop computer of the person authorized to digitally sign documents, on behalf of the obligated Entity, is disabled for technological reasons of installation, configuration or application of the obligated Entity's information security policies. c) When a National State of Emergency or another similar one has been declared that prevents the obligated Entities from having availability of the digital certificate. d) When the information to be submitted to the SMV exceeds the maximum limit of the digital Document to be transmitted through MVNet. This limit will be published on the main page of MVNet and communicated by the OTI by circular. e) When the obligated Entity is unable, due to technical problems, to use all the functionalities of MVNet for the submission of information and documentation, and it is considered that such situation will continue for a period greater than three (3) business days. f) When technical problems or inconveniences not foreseen, attributable to the SMV, arise that affect the availability of the MVNet service.

[10] Article 26.- Use of contingency MVNet In the case indicated in subsection a) of article 25, the legal representative or stock market representative of the obligated Entity, as the case may be of the person whose digital certificate has expired, through the option provided by MVNet, may request that the Contingency MVNet be enabled for them. In view of this, the system automatically verifies that the digital certificate has expired and enables them, exceptionally, to submit for a period of twenty-four (24) hours information or documentation with the electronic signature (user and password), without the digital signature (digital certificate). If the case indicated in subsection b) of article 25 occurs, the obligated Entity must request the OTI, immediately, through the option provided by MVNet, to enable the Contingency MVNet, attaching the corresponding support, which may be the screenshot of the screens showing the technical problems or inconveniences that arose. The OTI, after verification, will determine the contingency period in which the obligated Entity may submit information by electronic signature (user and password). In the case indicated in subsection c) of article 25, the OTI will communicate through MVNet and by circular to the obligated Entities the conditions of use of the contingency MVNet, and other conditions related to the application of this case. In the preceding cases, by exception, the submission obligation will be deemed fulfilled on the date of submission of the information with the corresponding electronic signature(s). Without prejudice to this, the obligated Entities in cases a) and b) of article 25 have a maximum period of five (5) business days to regularize the submission of information. The system will give you the option to sign the same information submitted digitally.

[11] “26. In principle, it should be indicated that articles 25 and 26 of the REGLAMENTO DEL SISTEMA MVNET regulate aspects related to the cases of exception to the use of Mvnet and to the use of contingency Mvnet, respectively; however, they do not establish exceptions to the deadlines for submitting financial information set forth in article 95 of the RAI; therefore, from their application, the administered parties cannot be exempted from timely compliance with the submission of the information they are obligated to provide”

44. On the other hand, INVERSIÓN Y DESARROLLO SAB maintains that in recitals 2712 and 3513 of the RESOLUCIÓN an insurmountable contradiction would have been incurred, regarding the cases in which an exception to the use of the MVNet system corresponds when the corresponding electronic signatures are not available, because otherwise an obligation could not be deemed fulfilled on a date different from the established one (1 February 2021) and at the same time it is suggested that said compliance should have been made on the regulatory date;

45. On this matter, it should be noted that although INVERSIÓN Y DESARROLLO SAB states that from the aforementioned recitals it would be deduced that the obligation would be deemed fulfilled on a date different from the one established in article 95 of the RAI, it is noted that the stock brokerage company has not taken into account that the maximum deadline for the submission of the FINANCIAL STATEMENTS was 1 February 2021, as indicated in recital 35 of the RESOLUCIÓN, because the deadline established in article 95 of the RAI (within the thirty calendar days following the close of each month) expired, in the specific case, on 30 January 2021; however, according to article 145, numeral 145.2 of the TUO LPAG14, in force at the time the events occurred, when the last day of the deadline is non-business, it is understood to be extended to the first following business day. Therefore, since 30 January 2021 was a non-business day, Saturday; the deadline for the submission of the FINANCIAL STATEMENTS in the present case was 1 February 2021, Monday, which was the following business day, as indicated in recital 3 of the RESOLUCIÓN15:

“3. As a result of said evaluation (…) charges were filed against INVERSIÓN Y DESARROLLO SAB for an infraction of the Regulation of Intermediation Agents, approved by SMV Resolution No. 034-2015-SMV and its amendments, in force at the date of the commission of the facts (hereinafter, RAI), for having failed to timely submit the individual financial statements corresponding to the close of the month of December 2020. The aforementioned information should have been submitted on 1 February 20211 ; however, it was submitted on 2 February 20212 ”. (Underline added);

46. With regard to what was indicated by the stock brokerage firm regarding the fact that it has not been taken into account that, in accordance with article 26 of the MVNET REGULATION, in the case of subparagraph b) of article 25, a period of five (5) business days would be extended to regularize (legalize, bring into compliance with law a

[12] 27. In the present case, it is an objective fact that the information subject to the charge was sent on 02 February 2021 in the form and channels required by the regulations, for which reason it is considered that the information was submitted one day late with respect to the deadline; it should be noted that in cases in which an exception to the use of MVNet applies, the obligation to submit is deemed fulfilled on the date of sending the information with the corresponding electronic signature(s) (user and password); a situation that is not observed in the present case for 01 February 2021;

[13] “35. With regard to the fact that the request sent by email on 01 February 2026 complied with the provisions of article 26 of the MVNET SYSTEM REGULATION, and therefore, since on 02 February 2022 the contingency presented was resolved with the support of the SMV Help Desk Service, it must lead to the conclusion that the information was submitted in a timely manner; it should be reiterated that the aforementioned article 26 does not establish exceptions to the deadline established by article 95 of the RAI; (…)”.

[14] “Article 145.- Passage of the deadline (…) 145.2 When the last day of the deadline or the determined date is a non-business day or for any other circumstance public attention that day does not operate during normal hours, they are understood to be extended to the first following business day.”

[15] 3. As a result of said evaluation (…) charges were filed against INVERSIÓN Y DESARROLLO SAB for an infraction of the Regulation of Intermediation Agents, approved by SMV Resolution No. 034-2015-SMV and its amendments, in force at the date of the commission of the facts (hereinafter, RAI), for having failed to timely submit the individual financial statements corresponding to the close of the month of December 2020. The aforementioned information should have been submitted on 1 February 20211 ; however, it was submitted on 2 February 20212 . (Underline added).

irregular situation or fact) the sending of the information. However, it must be specified that said article provides that, in some cases of exception to the use of MVNet, among which is the case indicated by INVERSIÓN Y DESARROLLO SAB and when the contingency period has been determined in which the entity may send the information by electronic signature, it is expressly stated that the obligation to submit is deemed fulfilled on the date of sending the information with the corresponding electronic signature or signatures, granting a period of five (5) business days to regularize the submission of the information, specifying that the system will give the option to sign the same information sent digitally. Therefore, contrary to what was indicated by the stock brokerage firm, article 26 of the MVNET REGULATION does not refer to an extension to submit the information again;

47. With respect to an alleged antinomy between articles 1 and 6 of the MVNET REGULATION and articles 25 and 26 of the same regulation, which would be evidenced in recital 33 of the RESOLUTION, it should be noted that this is not the case, since recital 33 of the RESOLUTION16 specifies that articles 1 and 6 of the MVNET REGULATION regulate the use of the MVNet System and the SMV Virtual, as well as the exchange of information through them, establishing the aforementioned articles that the sending of information or documentation, by the obligated entities, through MVNet or SMV Virtual, may be carried out, from Monday to Sunday, during the twenty-four (24) hours of the day; that is, a schedule is established for the remission and exchange of information, and not for the technical support that the SMV may provide to its administered entities in the event of any contingency they may have related to the MVNet and SMV system. It should be reiterated that, in the present case, the MVNet System was operational, with no technical limitation observed for its use as a means of sending information to the SMV; it was functioning and available to the administered entities 24 hours a day on 01 February 2021. From the foregoing, it is not observed that any contradiction arises between the aforementioned legal provisions as alleged by the stock brokerage firm;

48. In addition to the foregoing, INVERSIÓN Y DESARROLLO SAB alleges that recitals 31 and 32 would constitute a contravention of article VII of the Preliminary Title of the TUO LPAG, since it would be generating obligations for the administered entities. In this regard, it should be specified that in said recitals it is not expressly indicated that said norm must generate any obligation on the part of the stock brokerage firm, but rather that, in view of the fact that INVERSIÓN Y DESARROLLO SAB assumed that the officials of the SMV Help Desk Service would be available 24 hours a day, it was explained to the stock brokerage firm that it should take into account that the aforementioned officials are subject to a determined schedule (Monday to Friday from 09:00 a.m. 10:00 p.m. and the second Monday to Friday from 08:00 a.m. 10:00 p.m.), reason for which they are not available 24 hours17;

[16] 33. With respect to articles 1 and 6 of the REGLAMENTO DEL SISTEMA MVNET, it must be indicated that they define that they regulate the use of the MVNet System and the Virtual SMV, as well as the exchange of information through them, establishing the referred articles that the sending of information or documentation, by the obligated entities, through the MVNet or Virtual SMV, may be carried out, from Monday to Sunday, during the twenty-four (24) hours of the day; that is, a schedule is established for the submission and exchange of information, and not for the technical support that the SMV may provide to its administered entities in the event of any contingency they may have related to the MVNet and SMV system. In the present case, the MVNet System was operational, with no technical limitation observed for its use as a means of submitting information to the SMV; it was functioning and available to the administered entities 24 hours on 01 February 2021

[17] “31. In this regard, it should be noted that the referred email was not sent within the working hours that govern the officials of the SMV, that is, from 08:45 to 17:00 according to the provisions of article 30 of the Internal Regulations

49. Additionally, the stock brokerage company alleges that considerations 34 and 36 set out the attribution of new charges that were not communicated to it. On this point, it is specified that in said considerations the stock brokerage company was reminded that in the event of any eventuality in the submission of its information, its Technical Manager is responsible for helping to resolve it, and that the technical support that the SMV may provide does not imply a substitute for the functions and responsibilities of the referred Technical Manager. Likewise, it was specified to INVERSIÓN Y DESARROLLO SAB that in order for the financial information of an administered entity to be submitted to the SMV, it must have the digital signature of the legal representative and the accountant, in accordance with the provisions of article 95 and article 4 of the NORMAS. From the foregoing, it is proven that no additional non-compliances are being attributed in this administrative sanctioning procedure;

50. It should be noted that the obligation of intermediaries to have a technical manager in relation to the use of MVnet is established in article 13 of the REGLAMENTO MVNET, which requires the administered entity to designate its primary and alternate manager, who is responsible for resolving technological aspects associated with the use of MVNet, such as: installation, configuration, digital certificate, secure storage device software, digital signature software, document characteristics, among others, that contribute to the proper use of the system;

51. With regard to what was indicated by INVERSIÓN Y DESARROLLO SAB regarding that in consideration 37 of RESOLUCIÓN18 a contradiction would be revealed with respect to consideration 36, because it is considered as a contingency that the digital signature of the company's accountant could not be obtained, it should be noted that in the referred consideration 36 of RESOLUCIÓN19 it is not stated that said assumption represents a contingency, but rather that, in light of what was alleged by the general manager of the stock brokerage company, regarding that on 01 February 2021 he entered the MVNet system, prepared, validated and signed the financial information, but could not submit the information, it was specified that this does not constitute evidence of a contingency that prevents the use of MVNet for purposes of submitting information, since in order for the financial information of an administered entity to be submitted to the SMV, it must have the signature of the legal representative and the accountant;

[18] of the Civil Servants of the SMV approved by Superintendente Resolution No. 056-2016-SMV/02, nor within the hours of the Help Desk Service that the SMV has implemented as technical support for administered entities, a schedule that was communicated to INVERSIÓN Y DESARROLLO SAB through Circulars No. 216-2015-SMV/09 and No. 312-2021-SMV/09, establishing the first as service hours Monday to Friday from 09:00 a.m. 10:00 p.m. and the second Monday to Friday from 08:00 a.m. 10:00 p.m.; therefore, since the referred schedules were known to the stock brokerage company, its duty of diligence, foreseeing any contingency, should have led it to adopt measures that would allow it to submit, if applicable, its communication within said schedule, which did not occur in the present case.” 18 “37. Likewise, with regard to the fact that the validation of the structured file presented errors, which would constitute evidence of the occurrence of a contingency that did not allow it to submit the information in a timely manner; it should be noted that according to the BITACORA; although on 01 February 2021 at 21:49 and 22:03 hours, when validating the referred file, MVNet evidenced the existence of errors, they were resolved by INVERSIÓN Y DESARROLLO SAB on that date at 22:51 as detailed below, so the aforementioned does not constitute evidence of a contingency that prevented the submission of information;”

[19] “36. As for the fact that Mr. LUYO, despite having entered the MVNet System and validated and signed the financial information, was unable to submit the information; which would constitute evidence of the recorded contingency; it should be noted that in order for the financial information of a regulated entity to be submitted to the SMV, it must have the digital signature of both the legal representative and the accountant, as provided in article 95 of the RAI and article 4 of the NORMAS; therefore, what was indicated by the intermediary regarding the actions of Mr. Luyo does not constitute evidence of a contingency that prevents the use of MVNet for the purpose of submitting information; it being necessary to indicate that the condition of the two signatures was fulfilled with the submission of the information on 02 February 2021”

52. On the other hand, the stock brokerage firm invokes the application of the exemption from liability provided in literal f) of numeral 1 of article 257 of the TUO LPAG, insofar as it states that it has voluntarily remedied the infraction under analysis, because it maintains that with the approval of the project Criterios de Sanción (Resolution SMV 024-2019 published since 7 October 2019) from that date article 28 of the REGLAMENTO DE SANCIONES would be applicable with respect to the submission of financial information;

53. On this matter, it is appropriate to indicate that Resolution SMV Nº 024-2019-SMV/01 does not establish that article 28 of the REGLAMENTO DE SANCIONES cannot be applied to the submission of financial and occasional information, but rather that, through said norm, the dissemination of the draft “Régimen de Gradualidad de Sanciones por presentación extemporánea de información financiera, memoria anual y hechos de importancia” was authorized, so that within thirty (30) calendar days following its publication in the Official Gazette “El Peruano”, any interested person may submit to the SMV their comments and observations regarding said draft, in accordance with the provisions of articles 1 and 2 of the Política sobre publicidad de proyectos normativos, normas legales de carácter general y otros actos administrativos de la SMV, approved by Resolution SMV Nº 014-2014-SMV-01;

54. Consequently, it should be noted that in accordance with the provisions of article 28, literal c), of the REGLAMENTO DE SANCIONES, the late or incomplete submission; or the non-submission of material events, financial information and annual reports, constitutes one of the cases in which voluntary remediation does not apply as an exemption from liability, which is why it is not possible to apply the exemption from liability invoked by the stock brokerage firm;

55. Based on the foregoing, it is concluded that the arguments raised by INVERSIÓN Y DESARROLLO SAB in its reconsideration appeal have not disproved the grounds supporting the RESOLUCIÓN, in order to determine that INVERSIÓN Y DESARROLLO SAB breached the provisions of article 95 of the RAI, incurring in one (01) infraction of a minor nature classified in Annex I, numeral 3, subparagraph 3.1 of the REGLAMENTO DE SANCIONES, for not having timely submitted the individual interim financial statements corresponding to the close of December 2020;

56. Without prejudice to the foregoing, it should be noted that although in accordance with recital 58 of the RESOLUCIÓN, at the time of determining the sanction, consideration was given to the provisions of the “Criterios Aplicables al Procedimiento Administrativo Sancionador por Incumplimiento de las Normas que regulan la Remisión de Información Periódica o Eventual”, approved by Resolution SMV N° 006-2012-SMV/01 and its amendment20 (hereinafter, CRITERIOS DE SANCIÓN), in force at the time the events occurred, which establish that a warning sanction may be imposed when the following guidelines set forth in subparagraph 4.2, numeral (ii) of said criteria are concurrently met: (i) the impact on market transparency is minimal; (ii) the infraction committed has not caused a specific harm to investors or associates; (iii) the subject

[20] Amended by article 3 of Resolution SMV N° 010-2014-SMV/01 of 22 May 2014, in force as of 25 May 2014. Said resolution amended the first paragraph of the Fourth Criterion of subparagraph 4.1, numerals (ii), (iv), (v) (vi) and (vii) of subparagraph 4.2 of the Criteria applicable to the administrative sanctioning procedure for non-compliance with the norms regulating the submission of periodic or occasional information, approved by Resolution SMV N° 006-2012-SMV/01.

infractor does not have a prior record or, if having one, it involves infractions classified as minor offenses imposed in the four (4) years prior to the commission of the infraction being evaluated; (iv) the infractor has not obtained a benefit from its illegal conduct; and, (v) it has not been proven that the infractor acted with intent in the commission of the infraction;

57. Likewise, said CRITERIOS DE SANCIÓN establish that if a warning sanction is not applicable, a fine sanction must be imposed;

58. On the other hand, by Resolution SMV N° 007-2023-SMV/01 the Régimen de Gradualidad de Sanciones por presentación extemporánea de información financiera, memoria anual y hechos de importancia21 (hereinafter, RÉGIMEN DE GRADUALIDAD) was approved, which entered into force on 1 January 2024;

59. Now then, in accordance with the principle of non-retroactivity, contained in numeral 5 of article 248 of the TUO DE LA LPAG22, the sanctioning provisions in force at the time the infraction was incurred apply, unless subsequent norms are more favorable;

60. Considering the aforementioned principle, the SANCTION CRITERIA (currently repealed) must be applied to this case, unless the GRADUALITY REGIME23 contains provisions more favorable to INVERSIÓN Y DESARROLLO SAB;

61. Regarding the guidelines for the application of the warning sanction, Article 6, paragraph 6.1, of the GRADUALITY REGIME24 prescribes that a warning sanction may be applied when the following conditions are concurrently met: a. When the impact on market transparency is minimal. This statement is linked to the criterion of the severity of the damage to the public interest and/or the protected legal right; b. The infringement committed has not

[21] Published in the Official Gazette “El Peruano” on 8 September 2023.

[22] “Article 248.- Principles of the administrative sanctioning power The sanctioning power of all entities is additionally governed by the following special principles: (…) 5.- Non-retroactivity.- The sanctioning provisions in force at the time the administered party engages in the conduct to be sanctioned are applicable, unless subsequent ones are more favorable. Sanctioning provisions have retroactive effect insofar as they favor the alleged offender or the offender, both with regard to the classification of the infringement and to the sanction and its limitation periods, including with respect to sanctions in execution when the new provision enters into force.

[23] It should be noted that the application of the GRADUALITY REGIME, like the SANCTION CRITERIA, observes the principle of proportionality established in the TUO DE LA LPAG, since it allows determining in a predictable manner for the administered party the sanctions to be imposed on securities issuers and persons registered in the RPMV for non-compliance with the deadlines for submitting information to which they are obligated by the rules and for omission in submitting information requested by the SMV.”

[24] “Article 6.- GUIDELINES FOR THE APPLICATION OF THE GRADUALITY REGIME 6.1 CONSIDERATIONS FOR THE APPLICATION OF THE WARNING SANCTION The warning sanction may be applied when the following conditions are concurrently met: a. When the impact on market transparency is minimal. This statement is linked to the criterion of the severity of the damage to the public interest and/or the protected legal right; b. The infringement committed has not caused a concrete detriment to investors or associates; c. The offending subject has no prior record or, if any, they are sanctions corresponding to minor infringements imposed by the SMV that have become final in the four (4) years prior to the commission of the infringement being evaluated; d. The offending subject is not a repeat offender; e. The offender has not obtained benefits from its administrative infringement; and, f. It has not been proven that the offender acted with intent in the commission of the infringement.”

caused a concrete detriment to investors or associates; c. The offending subject has no prior record or, if any, they are sanctions corresponding to minor infringements imposed by the SMV that have become final in the four (4) years prior to the commission of the infringement being evaluated; d. the offending subject is not a repeat offender; e. The offender has not obtained benefits from its administrative infringement; and, f. It has not been proven that the offender acted with intent in the commission of the infringement;

62. In this regard, it should be noted that the GRADUALITY REGIME establishes as one of the conditions for the application of a warning fine that, even if the offending subject has a prior record, these are sanctions corresponding to minor infringements imposed by the SMV that have become final in the four (4) years prior to the commission of the infringement under evaluation. Consequently, the provisions of Article 6, paragraph 6.1, of the GRADUALITY REGIME are applicable to the infringement subject to charges, insofar as they are more favorable, with respect to the conditions established for imposing a warning sanction;

63. In this regard, it should be noted that with respect to the sanction record, it must be stated that in accordance with Article 25, literal a) of the SANCTIONS REGULATION, final sanctions imposed by the SMV within the four (4) years prior to the commission of the infringement to be sanctioned constitute a record, and the commission of the same infringement in the year prior to the infringement to be sanctioned is not considered a record;

64. Accordingly, from the review carried out in said period, in relation to the charge under evaluation, it has been verified that INVERSIÓN Y DESARROLLO SAB has the following record:

No.	Resolution	Resolved	Finality
i	Deputy Superintendency Resolution SMV No. 089-2017-SMV/1025	INVERSIÓN Y DESARROLLO SAB is sanctioned with two (02) warnings, for having incurred two (02) infringements of a minor nature classified in Annex X, paragraph 3, subparagraph 3.14 of the Sanctions Regulation, approved by CONASEV Resolution No. 055-2001-EF/94.10 and its amendments, for failing to timely communicate two (02) relevant facts referring to changes in shareholder participation.	13/10/2017
ii	Deputy Superintendency Resolution SMV No. 123-2017-SMV/1026	INVERSIÓN Y DESARROLLO SAB is sanctioned with a fine of 8 UIT for having incurred in one (01) infraction of a serious nature typified in Annex X, numeral 2, subsection 2.10 and in one (01) infraction of a minor nature typified in Annex X, numeral 3, subsection 3.5 of the Sanctions Regulation, approved by CONASEV Resolution No. 055-2001-EF/94.10 and its amendments; for failing to send its clients the information it is obliged to (account statements), or for not doing so in the form and opportunity required by the regulations; and, for failing to collect orders, respectively.	16/11/202027

[25] Notified on 21 September 2017.

[26] Notified on 29 December 2017.

[27] It became final when the appeal filed by INVERSIÓN Y DESARROLLO SAB was declared unfounded.

No.	Resolution	Resolved	Finality
iii	Deputy Superintendent Resolution SMV No. 056-2018-SMV/1028	INVERSIÓN Y DESARROLLO SAB is sanctioned with a fine of 7.60 UIT equivalent to S/ 28,880.00 (twenty-eight thousand eight hundred eighty and 00/100 soles) for having incurred in five (5) infractions of a minor nature typified in Annex I, numeral 3, subsection 3.1 of the Sanctions Regulation by having communicated eventual information outside the period established by the regulations.	13/11/2018

65. From the foregoing, it is observed that INVERSIÓN Y DESARROLLO SAB has a record, which consists of sanctions imposed corresponding to minor infractions (warning or fine of not less than one (1) and up to twenty-five (25) Tax Units) that have become final in the four (4) years prior to the commission of the infractions being evaluated;

66. Likewise, it has not been proven that the infractions committed have caused a specific harm to investors, nor is it observed that INVERSIÓN Y DESARROLLO SAB is a repeat offender in the commission of the infractions under analysis, nor is it evident that the brokerage firm has obtained a benefit from its illegal conduct, as well as it has not been proven that it acted with intent in the commission of the infractions;

67. Regarding the condition that the impact on market transparency be minimal (linked to the severity of the damage to the public interest and/or protected legal interest), it must be noted, in principle and as mentioned in the evaluation of the sanction criteria, that any non-compliance with the regulations regarding the deadlines established to present eventual information affects the transparency of the securities market (protected legal interest), even more so if this non-compliance is prolonged over time; since such information is relevant to the market in general. In that sense, it is the obligation of every brokerage firm to present the eventual information required by the regulations within the established deadlines, that is, in a timely manner;

68. However, it must be noted that the FINANCIAL STATEMENTS, under evaluation in this sanctioning procedure, were presented on 2 February 2021, that is, one (1) day late with respect to the deadline (1 February 2021), it can be seen that during the period in which INVERSIÓN Y DESARROLLO SAB did not report said material facts to the SMV, the degree of impact on market transparency has been minimal. Without prejudice that in similar cases, a greater delay in the presentation of said information may determine a greater degree of impact on the transparency of the securities market;

69. In that sense, as a result of the evaluation carried out, it is observed that INVERSIÓN Y DESARROLLO SAB complies with the conditions established in article 6, numeral 6.1, of the GRADUALITY REGIME. Consequently, it is proposed to modify the sanction imposed on IINVERSIÓN Y DESARROLLO SAB, through the RESOLUTION, to a warning for the infraction committed;

In accordance with the provisions of article 32, numeral 27, of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree

[28] Notified on 18 October 2018.

PERU Ministry of Economy and Finance
SMV
Superintendency of the Market in Securities
"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"

No. 216-2011-EF;

RESOLVES:

Article 1.- Declare unfounded the reconsideration appeal filed by Inversión y Desarrollo Sociedad Agente de Bolsa S.A.C. for the reasons set forth in this resolution.

Article 2.- Order that the sanction imposed on Inversión y Desarrollo Sociedad Agente de Bolsa S.A.C. through article 2 of the Deputy Superintendent Resolution SMV No. 013-2022-SMV/10 be modified to one (1) warning for the infraction committed.

Article 3.- Declare that the administrative remedy has been exhausted since the Deputy Superintendent Resolution SMV No. 013-2022-SMV/10 has become final.

Article 4.- This resolution must be published on the SMV Institutional Page on the Single Digital Platform of the Peruvian State (www.gob.pe/smv), in observance of the provisions of numeral 1, article 7 of the Policy on dissemination of regulatory projects, general legal norms, early agenda and other administrative acts of the SMV, approved by SMV Resolution No. 014-2014-SMV/01 and its amendment, and by the provisions of article 14 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01.

Article 5.- Transcribe this resolution to Inversión y Desarrollo Sociedad Agente de Bolsa S.A.C. and to the Lima Stock Exchange S.A.

Register, communicate and publish.

Omar Gutiérrez Ochoa
Deputy Superintendent
Deputy Superintendency of Prudential Supervision

Signed by: GUTIERREZ OCHOA Omar Darío Reason: