PERÚ Ministerio de Economía y Finanzas
SMV
Superintendency of the Market de Valores

“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"

SMV Deputy Superintendency Resolution

No. 047-2024-SMV/10

Lima, 09 August 2024

Summary: The reconsideration appeal filed by MGI Sociedad Administradora de Fondos de Inversión S.A. against Deputy Superintendency Resolution SMV No. 012-2022-SMV/10 is declared founded, in the extreme referred to the infraction of not having timely communicated the material fact referred to the appointment of the members of the Investment Committee of a fund it manages.

Administered
:
MGI Sociedad Administradora de Fondos de Inversión S.A.
Subject
:
Reconsideration appeal against Resolution of
Deputy Superintendency SMV No. 012-2022-SMV/10 File No.:
2021044306

The Deputy Superintendent of Prudential Supervision

VIEWS:

Administrative file No. 2021044306, the reconsideration appeal filed by MGI Sociedad Administradora de Fondos de Inversión S.A. and Report No. 852-2024-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 Comisión Nacional Supervisora de Empresas y Valores (CONASEV) is replaced by that of Superintendencia del Mercado de Valores (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. 012-2022-SMV/10 of 22 August 2022 (hereinafter, RESOLUTION), it was resolved to sanction MGI Sociedad Administradora de Fondos de Inversión S.A. (hereinafter, MGI SAF) with a fine of 1.5 UIT, equivalent to S/ 6,300.00 (Six thousand three hundred and 00100 Soles), and two (2) warnings, for having incurred in three (3) infractions of a minor nature typified 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 not having complied with presenting eventual and periodic information within the term established by the applicable regulations; therefore, the administrator filed a reconsideration appeal against the RESOLUTION;

II. ON THE ADMISSIBILITY OF THE RECONSIDERATION APPEAL

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

4. Likewise, article 218 numeral 218.2 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), establishes that the term for the filing of 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 challengeable administrative act;

5. In this regard, it has been verified that the challenged resolution was presented within the term established by article 218 of the TUO LPAG;

6. According to article 219 of the TUO LPAG, the reconsideration appeal is filed before the same organ that issued the act subject to challenge and must be supported by new evidence. However, in cases of administrative acts issued by organs that constitute a single instance, new evidence is not required;

7. At this point, it should be noted that, although the writing of 15 September 2022 of MGI SAF was denominated by the administering company as if it were an appeal, attributing this fact to a material error by the appellant, the writing is considered a reconsideration appeal, since in the case of infractions for non-compliance with the norms on timeliness for the remission of periodic or eventual information, the Deputy Superintendency of Prudential Supervision acts as a single administrative instance, in accordance with article 14 of the SANCTIONS REGULATION1 ;

III. ON THE ARGUMENTS PRESENTED BY MGI SAF

8. Through the appeal, MGI SAF requests that the RESOLUTION be revoked in the extreme that sanctions the administering company with a fine of 1.5 UIT for presenting a material fact outside the term referred to the appointment of the members of the Investment Committee of the “Fondo Facilitador Renta Balanceada”;

[1] “Article 14.- SANCTIONING ORGANS Sanctions are imposed in first instance by the Deputy Superintendent of Prudential Supervision and the Deputy Superintendent of Market Conduct Supervision, each within the scope of their competence. In the case solely of infractions for non-compliance with the norms on timeliness for the remission of periodic or eventual information and the norms on protection of minority shareholders of open corporations, referred to in Annex XIV, the Deputy Superintendent of Prudential Supervision and the Deputy Superintendent of Market Conduct Supervision act as a single administrative instance, as applicable. Their pronouncement exhausts the administrative route. (…)”.

9. As factual grounds of its challengeable appeal, MGI SAF states that from the date of registration of the “Fondo Facilitador Renta Balanceada” (hereinafter, FUND), 11 March 2019, until the date of its exclusion, 23 December 2021, there was no variation of the members of the Investment Committee of the FUND. It also indicates that the infraction subject to charges originated from an operational error that was detected at the beginning of the administrative sanctioning procedure, that the reported fact does not qualify as a material fact.

10. For its part, MGI SAF points out that it must be taken into consideration that the appointment of the members of the investment committee of the FUND was public knowledge, recorded in the FUND's Participation Regulations, and predates its registration; since the appointment is made during the drafting of the Participation Regulations;

11. Furthermore, it highlights that since the FUND began operations, the sole participant has been MGi Group S.A.C., a shareholder of MGI SAFI; whose participation quotas, at no time, have been transferred, have not been offered, nor has the FUND made or attempted to make any capital increase during the period it was operational;

IV. ;EVALUATION OF THE ARGUMENTS PRESENTED

12. This analysis must begin by specifying that MGI SAF files the reconsideration appeal only regarding the parts of the RESOLUTION related to the sanction imposed for the failure to timely communicate the material fact regarding the appointment of the FUND's investment committee that occurred on 11 March 2019 and was communicated to the Public Registry of the Securities Market (RPMV) on 30 April 20192 ;

13. As for the management company's statement that since the date of appointment of the members of the FUND's investment committee there has been no change in them, it must be noted that such circumstance has been taken into account in the RESOLUTION, in whose recital number 32 it is stated that said circumstance has not been questioned, that is, it is clear that the material fact refers to the appointment of the members of the investment committee and not to any change in them;

14. MGI SAF has stated that the appointment of the members of the investment committee does not constitute a material fact. In this regard, the RESOLUTION has stated that since the appointment was qualified as a material fact by the management company itself and reported to the RPMV through File No. 2019017827, MGI SAF should have complied with the requirements set forth in the RHI. In that sense, as noted in recitals 32, 33 and 34 of the RESOLUTION, it should be noted that, although the fact regarding the appointment of the members of the investment committee is not contemplated in the list of Annex I of the Regulations on Material Facts and Reserved Information, approved by SMV Resolution No. 005-2014-SMV/01 and its amendments (hereinafter, RHI), nor in article 141° of the Regulations on Investment Funds and their Management Companies, approved by SMV Resolution No. 029-2014-SMV/01 and its amendments (hereinafter, INVESTMENT FUNDS REGULATIONS), the appointment of the members of the FUND's investment committee constitutes a material fact insofar as it was qualified as such by MGI SAF and was disseminated in such

[2] File No. 2019017827.

manner to the market, as indicated in recitals 32, 33, and 34 of the RESOLUTION;

15. Notwithstanding the foregoing, it should be noted that the information subject to charges was already public knowledge, to the extent that it was recorded in the FUND's Participation Regulations, and that information was in the Public Registry of the Securities Market at the time of the FUND's registration; since the appointment of the members of the investment committee is made prior to said registration. Therefore, the information on the appointment of the members of the FUND's Investment Committee had already been communicated to the market prior to its dissemination as a material fact, so investors and the market in general were already aware of said appointment;

In accordance with the provisions of article 32, numeral 27, of the Regulations on Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF;

RESOLVES:

Article 1.- To declare founded the reconsideration appeal filed by MGI Sociedad Administradora de Fondos de Inversión S.A. regarding the infraction for not having timely communicated the material fact regarding the appointment of the members of the Investment Committee of the “Fondo Facilitador Renta Balanceada”, declared in its article 1°, for the considerations set forth in this resolution.

Article 2.- To order that the fine imposed on MGI Sociedad Administradora de Fondos de Inversión S.A. by article 4° of the Deputy Superintendence Resolution SMV No. 012-2022-SMV/10 be left without effect.

Article 3.- To declare that the administrative remedy has been exhausted.

Article 4.- This resolution must be published on the Securities Market Portal of the Superintendence of the Securities Market, in observance of the provisions of numeral 1, article 7° of the Policy on dissemination of regulatory projects, general legal norms, regulatory agenda and other administrative acts of the SMV, approved by SMV Resolution No. 014-2014-SMV/01 and its amendment, and of the provisions of article 14° of the Sanctions Regulations, approved by SMV Resolution No. 035-2018-SMV/01.

Article 5.- To transcribe this resolution to MGI Sociedad Administradora de Fondos de Inversión S.A.

Register, communicate and publish.

Omar Gutiérrez Ochoa
Deputy Superintendent
Deputy Superintendence of Prudential Supervision