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"

Deputy Superintendency Resolution SMV

No. 045-2024-SMV/10

Lima, 02 August 2024

Summary: Plan Rentable Perú S.A.C. ex EAFC is sanctioned with a fine amounting to six (6) UIT for having incurred in two (2) serious infractions typified in Annex XVI, numeral 2, subparagraph 2.10, of the Sanctions Regulation, for having failed to submit the Annual Special Audit Plan for the year 2022 and the Independent Annual Compliance Report for 2021, in accordance with the term established in the Norms for the Prevention of Money Laundering and Financing of Terrorism.

Administrated
: Plan Rentable Perú S.A.C. ex EAFC
Subject
:
Administrative sanctioning procedure
File No. : 2023047632

The Deputy Superintendent of Prudential Supervision

VIEWS:

The administrative file No. 2023047632, the Report No. 920-2024-SMV/10.3, issued by the General Intendancy of Prudential Compliance; and,

CONSIDERING:

1. In accordance with Article 1 of Law No. 29782, Law for the Strengthening of the Supervision of the Securities Market, 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. FACTS

2. As a result of the supervision and control activities, and under the protection of the provisions of the Single Ordered Text of the General Administrative Procedure Law, Law No. 27444, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO DE LA LPAG), through Official Letter No. 5139-2023- SMV/10.3, notified on 15 November 2024 (hereinafter, OFFICIAL LETTER OF CHARGES), it filed charges against Plan Rentable Perú S.A.C. ex EAFC (hereinafter, PLAN RENTABLE) for infractions to the Norms for the Prevention of Money Laundering and Financing of Terrorism, approved by CONASEV Resolution No. 033-2011- EF/94.10 and its amendments (hereinafter, NORMAS PLAFT).;

3. PLAN RENTABLE has not submitted its defenses to the administrative sanctioning procedure initiated through the OFFICIAL LETTER OF CHARGES, up to the date of issuance of this resolution;

4. The charges filed against PLAN RENTABLE and their evaluation have been the subject of analysis in Report No. 920-2024-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, numeral 1.2, of the Preliminary Title and in article 248, subparagraph 2, of the TUO LPAG, through Official Letter No. 2928-2024-SMV/10, it was made available to PLAN RENTABLE;

II. ISSUES TO BE DETERMINED

6. In this administrative procedure, in the opinion of this Deputy Superintendency of Prudential Supervision, it corresponds to determine the following:

a. Whether or not PLAN RENTABLE incurred in an infraction provided in Annex XVI, numeral 2, subparagraph 2.10, of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), for having failed to submit the Annual Special Audit Plan for the year 2022 in accordance with the term established in the NORMAS PLAFT;

b. Whether or not PLAN RENTABLE incurred in an infraction provided in Annex XVI, numeral 2, subparagraph 2.10 of the SANCTIONS REGULATION, for having failed to submit the Independent Annual Compliance Report for 2021 in accordance with the term established in the NORMAS PLAFT;

c. Whether or not it corresponds to impose a sanction on PLAN RENTABLE;

III. ANALYSIS

3.1 Of the applicable Normative

A. OF THE ANNUAL SPECIAL AUDIT PLAN

7. Regarding the Annual Special Audit Plan, article 32 of the NORMAS PLAFT states the following:

"Article 32.- Annual Special Audit Plan The Internal Audit Area or the official exercising internal control functions, in accordance with the provisions of numeral 30.2 of article 30 of this norm, must prepare an Annual Special Audit Plan of the money laundering and terrorism financing detection system, aimed at improving the internal control system for prevention, which must be approved by the Board of Directors or equivalent body of the obligated subjects before 31 December of each year and submitted to CONASEV within the same term for presentation of the report of the Compliance Officer corresponding to the second semester of the year, for which it must be delivered in a timely manner to the Compliance Officer. (...)".

8. In relation to the term for presentation of the Semiannual Report of the Compliance Officer, the provisions of article 29, numerals 29.1 and 29.2 of the NORMAS PLAFT must be taken into account:

"Article 29.- Terms for the presentation of the semiannual reports of the Compliance Officer

29.1 The semiannual reports of the Compliance Officer must be brought to the knowledge of the Board of Directors or equivalent body of the obligated subject, within the calendar month following the expiration of the respective semiannual period, before being presented to CONASEV and the UIF-Perú.

29.2 The semiannual reports must be presented to CONASEV and the UIF-Perú no later than within the fifteen calendar days following the date on which the reports have been brought to the knowledge of the Board of Directors or similar body of the obligated subject. Such reports must present evidence of having been presented in advance to the Board of Directors of the obligated subject.

(...)".

B. OF THE INDEPENDENT ANNUAL COMPLIANCE REPORT

9. Regarding the Independent Annual Compliance Report, article 35, numeral 35.2, of the NORMAS PLAFT states the following:

"Article 35.- Independent Annual Compliance and Special Compliance Report

(...)

35.2 The obligated subjects must submit to CONASEV the Annual Independent Compliance Report on the evaluation of the anti-money laundering and/or terrorist financing prevention system, within the period regulated by CONASEV for the annual submission of audited financial statements

(…)”.

10. Regarding the deadline for submitting annual audited financial statements, the provisions of Article 6 of the “Rules on the preparation and submission of Financial Statements and Annual Report by entities supervised by the Superintendency of the Securities Market”, approved by SMV Resolution No. 016-2015-SMV/01, must be taken into account, which provides the following:

“Article 6.- Deadline for the approval of annual financial information

Issuing companies with securities registered in the RPMV, legal entities registered in the RPMV, as well as collective fund management companies must submit to the SMV and, if applicable, to the entities responsible for the operation of centralized trading mechanisms, their annual audited individual or separate financial information, on the day it has been approved by the corresponding body, with the deadline for its respective approval being 31 March of each year. In the case of collective fund management companies, the deadline is 30 April of each year.”

3.2 Of the Charges Filed

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

“Decade of Equality of 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"

A. OF THE ANNUAL SPECIAL AUDIT PLAN

11. The Annual Special Audit Plan, corresponding to fiscal year 2022, submitted to the SMV on 13 April 2022 1 . However, according to the applicable regulations, the deadline for submitting said information was 15 February 2022 2 ;

B. OF THE ANNUAL INDEPENDENT COMPLIANCE REPORT

12. The Annual Independent Compliance Report, corresponding to fiscal year 2021, submitted to the SMV on 9 May 2022 3 . However, according to the applicable regulations, the deadline for submitting said information was 2 May 2022 4 ;

3.4 Of the defenses

13. In this regard, it must be noted that PLAN RENTABLE, as of the date of issuance of this resolution, has not submitted defenses to the observations made through the OFFICIAL LETTER OF CHARGES;

3.5 Of the analysis of the charges

14. It is necessary to state that PLAN RENTABLE, at the date of commission of the imputed infractions, had operating authorization granted by Superintendency Resolution No. 057-2015-SMV/02 of 3 June 2015 5 , which authorization was revoked by Superintendency Resolution No. 093-2023-SMV/02 of 06 November 2023 (hereinafter, REVOCATION RESOLUTION) 6 ; therefore, it was and is aware of the applicable regulations for the submission of the Annual Special Audit Plan and the Annual Independent Compliance Report, and thus was obligated to timely submit the aforementioned information. However, this did not occur, since PLAN RENTABLE incurred the two (2) infractions that are the subject of charges;

15. Indeed, in the present case, PLAN RENTABLE submitted the Annual Special Audit Plan, corresponding to fiscal year 2022, on 13 April 2022, with fifty-seven (57) days of delay, and the Independent Report of

[1] PLAN RENTABLE sent to the SMV the Annual Special Audit Plan corresponding to fiscal year 2022 when responding to Official Letter No. 1609-2022-SMV/10.2, notified on 11 April 2022, through which it was required to submit the aforementioned plan (File No. 2022014424).

[2] It should be noted that, in accordance with the provisions of Article 32 of the PLAFT RULES, PLAN RENTABLE should have submitted the Annual Special Audit Plan for fiscal year 2022 within the same deadline for submitting the Compliance Officer's Report for the second half of fiscal year 2021, in accordance with the provisions of Article 29, numeral 29.2 of the PLAFT RULES.

[3] PLAN RENTABLE sent to the SMV the Annual Independent Compliance Report corresponding to fiscal year 2021 when responding to Official Letter No. 2143-2022-SMV/10.2, notified on 5 May 2022, through which it was required to submit the aforementioned plan (File No. 2022019841).

[4] It should be noted that, in accordance with the provisions of Article 35, numeral 35.2, of the PLAFT RULES, PLAN RENTABLE should have submitted the Annual Independent Compliance Report corresponding to fiscal year 2021 within the deadline for the annual submission of audited financial statements. Likewise, in application of numeral 145.2 of Article 145 of the Single Ordered Text of the General Administrative Procedure Law, Law No. 27444, approved by Supreme Decree No. 004-2019-JUS, the information may be submitted until the next business day after the expiration of the deadline when the last day of the deadline or the determined date is non-business or for any other circumstance public attention that day does not function during normal hours.

[5] Published in the Official Gazette El Peruano on 10 June 2015.

[6] Published in the Official Gazette El Peruano on 09 November 2023.

Annual Compliance corresponding to fiscal year 2021, on 9 May 2022, with seven (7) days of delay;

16. Thus, it has been established that PLAN RENTABLE failed to comply with the provisions of Articles 32 and 35 of the PLAFT RULES;

17. Consequently, PLAN RENTABLE incurred two (2) infractions of a serious nature, in accordance with the provisions of Annex XVI, numeral 2, subsection 2.10, of the SANCTIONS REGULATION according to which it constitutes an infraction: “Failure to submit in a timely manner, or doing so without observing the regulations on prevention of money laundering and terrorist financing, to the SMV or the UIF-Peru, as the case may be, the respective reports or the Annual Special Audit Plan”;

IV. EVALUATION OF THE SANCTION

18. In accordance with article 7 of Decreto Ley N° 21907 on Collective Fund Companies and article 25 of the SANCTIONS REGULATION; in accordance with article 248, numeral 37 of the Single Ordered Text of Ley N° 27444, General Administrative Procedure Law, approved by Decreto Supremo N° 004-2019-JUS (hereinafter, TUO DE LA LPAG), and article 2578 of the aforementioned normative body; the administrative sanctions that are imposed must take into account the criteria set forth by Decreto Ley N° 21907, the SANCTIONS REGULATION and the TUO DE LA LPAG;

[7] “Article 248.- Principles of administrative sanctioning power The sanctioning power of all entities is additionally governed by the following special principles: (…) 3. Reasonableness.- The authorities must foresee that the commission of the sanctionable conduct does not prove 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 qualified as an infraction, observing the following criteria that are indicated for its gradation: a) The illicit benefit resulting from the commission of the infraction; b) The probability of detection of the infraction; c) The severity of the damage to the public interest and/or protected legal right; d) The economic harm caused; e) Recidivism, for the commission of the same infraction within the term of one (1) year from when the resolution that sanctioned the first infraction became final. f) The circumstances of the commission of the infraction; and g) The existence or not of intentionality in the conduct of the offender”.

[8] “Article 257°.- Exemptions and mitigating circumstances of liability for infractions 1.- The following constitute conditions exempting liability for infractions: a) Fortuitous event or duly proven force majeure. 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 it affects the aptitude to understand the infraction. d) The mandatory order of a competent authority, issued in the exercise of its functions. e) The error induced by the Administration or by a confusing or illegal administrative provision. f) The voluntary correction by the possible sanctioned party of the act or omission imputed as constituting an administrative infraction, prior to the notification of the imputation of charges referred to in subsection 3) of article 255. 2.- The following constitute mitigating conditions of liability for infractions: a) If, once an administrative sanctioning procedure has been initiated, the offender acknowledges their responsibility expressly and in writing. In cases where the applicable sanction is a fine, it is reduced to an amount not less than half of its amount. b) Others established by special norm”.

19. Within that framework, the evaluation of the sanction must consider: a) Offender's background; b) Recidivism; c) Circumstances of the commission of the infraction; d) Economic harm caused and its repercussion on the market; e) Illicit benefit resulting from the commission of the infraction; f) Probability of detection of the infraction; g) Severity of the damage to the public interest and/or protected legal right; h) Existence or not of intentionality in the conduct of the offender;

20. In that sense, in order to reconcile the criteria of the TUO DE LA LPAG with those indicated in Decreto Ley N° 21907 and in the SANCTIONS REGULATION, and so that these criteria are adequately considered so that their assessment observes the principle of reasonableness and the sanction to be imposed adapts to them, the following criteria are analyzed;

21. With regard to the sanction background, it must be noted that in accordance with the provisions of article 25° of the SANCTIONS REGULATION, the sanctions firmly imposed by the SMV within the term of four (4) years prior to the commission of the infraction to be sanctioned with respect to any type of infraction constitute background;

22. In that sense, from the review carried out in said period, it has been verified that PLAN RENTABLE records the following final sanctions:

No.	Resolution	Resolved	Finality	Background (*)
i	Deputy Superintendent of SMV Resolution No. 007-2019-SMV/109	PLAN RENTABLE was sanctioned with a fine of 12 UIT, for having incurred seven (07) infractions of a serious nature typified in Annex XIX, numeral 2, subsection 2.12 of the Sanctions Regulation approved by Resolución CONASEV N° 055-2001-EF/94.10 and its amending norms (hereinafter OLD SANCTIONS REGULATION). It should be noted that said sanction was subject to appeal which was resolved by Resolución de Superintendente N° 80-2020-SMV/02 of 24 August 2020, by which it was resolved to declare the appeal filed by PLAN RENTABLE partially founded.	25/08/2020	A and B

[*] Literals of recital number 7 of this Resolution.

23. With regard to recidivism for the commission of the same infraction, account is taken of that final sanction imposed by the SMV within the term of one (1) year prior to the commission of the infraction to be sanctioned. Within this framework, it must be stated that PLAN RENTABLE does not present sanctions within the aforementioned term, for the commission of the same infraction under analysis, in the present administrative sanctioning procedure, therefore recidivism is not configured;

24. Regarding the circumstances of the commission of the infractions, it must be mentioned that PLAN RENTABLE is aware of the rules that regulate the collective funds system, in that sense, it knows the PLAFT NORMS and

[9] Notified on 12 March 2019.

the obligations that derive from said norms; however, it incurred in the infractions subject to observation in the present administrative procedure;

25. PLAN RENTABLE failed to submit the Annual Special Audit Plan, corresponding to fiscal year 2022 and the Independent Annual Compliance Report corresponding to fiscal year 2021 within the term established in the applicable regulations, the company submitted the information to the SMV with fifty-seven (57) and seven (7) days of delay, after the requirements made through Official Letter No. 1609-2022-SMV/10.2, notified on 11 April 2022 (File No. 2022014424) and Official Letter No. 2143-2022-SMV/10.2, notified on 5 May 2022 (File No. 2022019841).

26. It should be taken into account that through Superintendent Resolution No. 029-2021-SMV/02 of 28 April 2021, it was ordered, among others, the suspension of the operating authorization granted to PLAN RENTABLE for a term of ninety (90) calendar days due to its net equity deficit situation, said suspension was extended by Superintendent Resolutions No. 070-2021-SMV/02, No. 092-2021-SMV/02 and No. 120-2021-SMV/02.

27. Consequently, PLAN RENTABLE maintained the suspension of its operating authorization from 28 April 2021 until 24 February 2022, that is, approximately ten (10) months.

28. Subsequently, Superintendent Resolution No. 043-2023-SMV/02 of 31 May 2023, ordered, among others, the suspension of the operating authorization granted to PLAN RENTABLE, during the term of thirty (30) business days or until said company accredited the removal of some shareholders. The suspension of the operating authorization was extended by Superintendent Resolution No. 054-2023-SMV/02, Superintendent Resolution No. 067-2023-SMV/02 and Superintendent Resolution No. 085-2023-SMV/02. It should be noted that, considering the REVOCATION RESOLUTION, PLAN RENTABLE maintained a suspension of its operating authorization from 31 May until 06 November 2023, that is, approximately five (05) months.

29. Through the REVOCATION RESOLUTION it was resolved to revoke the operating authorization of PLAN RENTABLE, and consequently, exclude said company from the corresponding section of the Special Registry of Other Entities under the competence of the Superintendency of the Securities Market – SMV;

30. Regarding the economic damage caused and the repercussion in the market, in the present case, it has not been evidenced that the infraction incurred by PLAN RENTABLE has produced a concrete quantifiable damage in the market; however these facts affect the trust of the associates or potential associates in the collective funds system;

31. Regarding the illicit benefit resulting from the commission of the infraction, it must be pointed out that it has not been proven that PLAN RENTABLE has obtained a benefit that bears a direct relation to the infractions under analysis in the present administrative procedure;

32. Regarding the probability of detection of the infractions, it must be indicated that the facts constituting the infractions committed by PLAN RENTABLE were evidenced as a result of the supervision and control actions carried out by the SMV regarding compliance with the submission of information to which the administered entities are obliged by the PLAFT NORMS, therefore the probability of detection of the infractions was high;

33. As for the severity of the damage to the public interest and/or protected legal good, it must be pointed out that the system for the prevention of money laundering and terrorist financing has the purpose of allowing obligated subjects to detect unusual operations and the prevention or timely detection of suspicious operations, carried out or intended to be carried out; through the establishment of procedures, policies and controls detailed in the norms, and thus prevent the products and/or services they offer to the public from being used for illicit purposes linked to money laundering and/or terrorist financing;

34. In this sense, the non-compliance with the obligations established in the PLAFT NORMS implies that the purpose of the money laundering prevention system is not fully complied with; which affects the integrity of the market and the trust that investors and associates may have in the collective funds management companies, in the diligent development of their functions;

35. Regarding the existence or not of intentionality in the conduct of the offender, it must be specified that no intentionality has been verified in the conduct of PLAN RENTABLE regarding the infractions under analysis;

36. In addition to the foregoing, it corresponds to analyze the exonerating and mitigating assumptions of responsibility established in article 257 of the TUO OF THE LPAG, as well as the mitigating and exonerating conditions of responsibility established in articles 26 and 27 of the SANCTIONS REGULATION;

37. Therefore, in accordance with the provisions of 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 exonerating conditions of responsibility has been configured;

38. In relation to the voluntary declaration of the commission of the infraction and the offender's contribution to its clarification, established in article 257°, numeral 2, subparagraph a) of the TUO of the LPAG and in article 26°, literals a) and b) of the SANCTIONS REGULATION, it must be indicated that PLAN RENTABLE did not present defenses, therefore, it has not expressly acknowledged the commission of the infraction under evaluation, nor has it contributed to its clarification;

39. According to the foregoing, it is concluded that PLAN RENTABLE has incurred in the commission of two (2) infractions classified as serious in Annex XVI, numeral 2, subparagraph 2.10, of the SANCTIONS REGULATION, for which a sanction corresponding to infractions classified as serious must be imposed on PLAN RENTABLE in accordance with article 38° of the SANCTIONS REGULATION;

40. However, according to the sanction criteria analyzed in application of the Principle of Reasonableness contemplated in article 248°, numeral 3 of the TUO OF THE LPAG, which states that sanctions must be proportional to the non-compliances classified as infractions, in accordance with the foregoing, considering that the company is not a repeat offender in the infractions under analysis, the circumstances of the commission of the infractions, that no concrete harm has been evidenced, and that there was no intentionality nor any illicit benefit resulting from the infractions, it is concluded that a sanction corresponding to a classification lower than that provided for serious infractions must be imposed on PLAN RENTABLE, in accordance with the provisions of article 6°, third paragraph of the SANCTIONS REGULATION and in article 25°, last paragraph, of the SANCTIONS REGULATION; therefore, it is possible to impose on the company the sanctions applicable to minor infractions, in accordance with the provisions of article 38° of the SANCTIONS REGULATION;

41. In this sense, considering the analysis carried out, it is proposed to impose on PLAN RENTABLE six (6) Tax Units (UIT)10, applicable to minor infractions, in accordance with the provisions of article 39° of the SANCTIONS REGULATION;

In accordance with the provisions of articles 32°, numeral 16, of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF and its amendments.

RESOLVES:

Article 1°.- Declare that Plan Rentable Perú S.A.C. ex EAFC has incurred in one (1) infraction classified as serious as established in Annex VII, literal A), numeral 2, subparagraph 2.8 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for having failed to submit the Annual Special Audit Plan for the year 2022 in accordance with the deadline established in the Norms for the Prevention of Money Laundering and Terrorist Financing, approved by CONASEV Resolution No. 033-2011-EF/94.10 and its amendments.

Article 2°.- Declare that Plan Rentable Perú S.A.C. ex EAFC has incurred in one (1) infraction classified as serious as established in Annex VII, literal A), numeral 2, subparagraph 2.8 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for having failed to submit the Annual Independent Compliance Report for the year 2021 in accordance with the deadline established in the Norms for the Prevention of Money Laundering and Terrorist Financing, approved by CONASEV Resolution No. 033-2011- EF/94.10 and its amendments.

Article 3°.- Sanction Plan Rentable Perú S.A.C. ex EAFC with a fine amounting to two (2) UIT for the commission of the infractions indicated in article 1° and 2°.

Article 4°.- This resolution does not exhaust the administrative remedy, unless it becomes final, and may be challenged before the Deputy Superintendency of Prudential Supervision by filing a motion for reconsideration or appeal before the same, within a period of fifteen (15) business days counted from the day following its notification.

Article 5°.- In the event that this resolution is not challenged by means of a motion for reconsideration or appeal within fifteen (15) business days of notification and becomes final, it must be published on the

[10] For payment purposes, the UIT in force at the time of effective payment of the fine shall apply.

Institutional Page of the SMV 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 6°.- Transcribe this resolution to Plan Rentable Perú S.A.C. ex EAFC.

Register, communicate and publish.

Signed by: GUTIERREZ OCHOA Omar Dari Reason:

Omar Gutiérrez Ochoa
Deputy Superintendent
Deputy Superintendency of Prudential Supervision