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. 051-2024-SMV/10

Lima, 11 October 2024

Summary: Plan Rentable Perú S.A.C, formerly Administradora de Fondos Colectivos, is sanctioned with a fine of four (04) UIT for having incurred four (04) infractions: three (3) serious ones typified in Annex XIII, numeral 2, subsection 2.16 and one (1) of a serious nature typified in Annex I, numeral 2, subsection 2.1 of the Sanctions Regulations for not complying with the provisions of the collective funds administration contract entered into with the associate and in the Regulations i) for not having resolved a contract at the appropriate time, ii) for not having considered the associate in the quarterly draws for the return of their contributions; and, iii) for not having attended to a claim within the legal term. Additionally, iv) for not having complied with delivering documentation and/or information required in response to the complaint presented; respectively.

Administered
:
Plan Rentable Perú S.A.C, formerly Administradora de Fondos Colectivos.
Subject
:
Administrative sanctioning procedure
File No. : 2024002213

The Deputy Superintendent of Prudential Supervision

SEEN:

Administrative file No. 2024002213, Report No. 580-2024-SMV/10.3, issued by the General Intendancy of Prudential Compliance, and the discharges presented by Plan Rentable Perú S.A.C, formerly Administradora de Fondos Colectivos1 ; and,

CONSIDERING:

[1] By Superintendency Resolution No. 093-2023-SMV/02 dated 06 November 2023, it was resolved to revoke the operating authorization of Plan Rentable SAC as Administradora de Fondos Colectivos. By Superintendency Resolution No. 012-2024-SMV/02 of 02 February 2024, the reconsideration appeal filed by Plan Rentable Perú S.A.C. against Superintendency Resolution No. 093-2023-SMV/02 was declared unfounded.

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 any reference to CONASEV in legal norms shall be understood as made to the SMV;

I. Facts

2. On 27 September 2018, the COMPLAINANT2 entered into with PLAN RENTABLE the Collective Funds Administration Contract, corresponding to the “Special Program Plan 60”, Group No. 6003, for the award of a purchase certificate of US$ 20,000.00 (Twenty thousand and 00/100 US dollars) (hereinafter, CONTRACT 1)3 ;

3. On 26 August 2019, the COMPLAINANT entered into with PLAN RENTABLE the Collective Funds Administration Contract, corresponding to the “Special Program Plan 60”, Group No. 6005, for the award of a purchase certificate of US$ 10,000.00 (Ten thousand and 00/100 US dollars) (hereinafter, CONTRACT 2);

4. By writings received on 02 February 2023, the COMPLAINANT filed a complaint before the Superintendencia del Mercado de Valores (SMV) against PLAN RENTABLE4 , in which it states with regard to CONTRACT 1, that on 29 April 2021 PLAN RENTABLE resolved CONTRACT 1, for having remained in default for more than three (3) months. Likewise, with regard to CONTRACT 2, it indicated that as of the date of the complaint PLAN RENTABLE did not resolve said contract, despite having remained in default for more than three (3) months;

5. Likewise, it states that for personal reasons and considering that it had pending payment of its social benefits for having been a worker of PLAN RENTABLE, it only paid up to installment No. 25 corresponding to CONTRACT 1 and up to installment No. 20 corresponding to Contract 2, made on 08 January 2021 and 16 July 2021, respectively;

6. In that sense, the COMPLAINANT complains that on 12 January 2023, it sent a letter to PLAN RENTABLE, both for CONTRACT 1 and for CONTRACT 2. With regard to CONTRACT 1, it indicated that on the PLAN RENTABLE website it could see that said contract participated only in assembly 32 of resolved contracts, thus losing the opportunity to be drawn in the following assemblies (assemblies 35, 38, 41, 44 and 47). Likewise, with regard to CONTRACT 2, it indicated that on the PLAN RENTABLE website it could see that said contract did not participate in the assemblies of resolved contracts;

7. However, it indicated, as of the date of the complaint, that 20 days elapsed and it did not receive a response from PLAN RENTABLE;

[2] The attached Annex details the complete data of the natural persons to whom the denominations used in this resolution belong, and similarly, if applicable, the email addresses

[3] The information was obtained from the files that PLAN RENTABLE has periodically sent to the SMV. Likewise, it should be noted that the contract model was approved by Resolution of the General Intendancy of Supervision of Entities No. 146-2017-SMV/10.2 of 16 October 2017.

[4] File No. 2023005070.

8. The COMPLAINANT attached as part of its complaint, a copy of the receipt of the Letter of 12 January 2023 addressed to PLAN RENTABLE, in relation to CONTRACT 1, a copy of the printout of the Report of Resolved Participants from the PLAN RENTABLE website, in relation to CONTRACT 1, a copy of the receipt of the Letter of 12 January 2023 addressed to PLAN RENTABLE, in relation to CONTRACT 2 and a copy of the printout of the Report of Resolved Participants from the PLAN RENTABLE website, in relation to CONTRACT 2;

9. By means of Official Letter No. 588-2023-SMV/10.3, notified on 07 February 2023 (hereinafter, OFFICIAL LETTER), the complaint filed by the COMPLAINANT was forwarded to PLAN RENTABLE, so that it may submit the corresponding comments, and it was requested, among other information, the following documentation and/or information:

"(…)

b. Indicate the current status of the Contract entered into between your company and the Complainant, as well as the grounds and the date of its termination (if applicable).

c. If the current status of the contracts is terminated, specify the time frame for the return of contributions; indicate from what date the Complainant was considered in the quarterly draws for the return of contributions to members with terminated contracts and whether, as of the date of your response, they have been a winner in any of said draws. Likewise, specify in which quarterly draws the Complainant has participated for each of the terminated contracts, presenting the relevant evidence.

(…)

e. The communications sent to the Complainant in response to the letters sent on 12 January 2023.

(…)";

10. On 16 February 2023, PLAN RENTABLE sent the SMV its comments and part of the requested information via the OFFICE. In this regard, PLAN RENTABLE submitted the following documentation, which forms part of the file: a) Copy of CONTRACT 2; b) Copy of the Associate's payment report as of 16 February 2023, corresponding to CONTRACT 2; c) Copy of the communication dated 04 November 2021, by which PLAN RENTABLE informs the COMPLAINANT that, in strict application of its CONTRACT 2, it proceeded to terminate the aforementioned contract;

11. With Office No. 4774-2023-SMV/10.3 notified on 19 October 2023 (hereinafter, OFFICE 1), the request for information related to the complaint filed by the COMPLAINANT, concerning CONTRACT 1, was reiterated to PLAN RENTABLE; as well as comments on the reported facts;

12. Likewise, as required in the OFFICE, concerning CONTRACT 2, the submission of the minutes of the assemblies corresponding to the quarterly draws in which the COMPLAINANT's participation is evidenced was requested, considering that, according to its response, PLAN RENTABLE stated the following “(…) if we must indicate that it is already participating in the draw of resolved said contract”;

13. Notwithstanding the foregoing, it must be specified that, as of the date of this resolution, PLAN RENTABLE has not responded to Office No. 4774-2023-SMV/10.3;

14. As a result of the foregoing and pursuant to the provisions of the Single Ordered Text of the General Administrative Procedure Act, Act No. 27444, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO DE LA LPAG), with Office No. 254-2024-SMV/10.3 notified on 22 January 2024 (hereinafter, CHARGES OFFICE), the administrative sanctioning procedure against PLAN RENTABLE was initiated, charging it with non-compliance with the regulations of the Collective Funds System;

15. On 24 January 2024, PLAN RENTABLE submitted the corresponding defense;

16. The charges formulated against PLAN RENTABLE, as well as the defense submitted by the aforementioned company, have been the subject of evaluation in Report No. 580-2024-SMV/10.3, which has been submitted to the knowledge of this Deputy Superintendency;

17. In compliance with the Principle of Due Process contemplated both in Article IV, numeral 1.2., of the Preliminary Title and in article 248°, subsection 2, of the TUO DE LA LPAG, through Official Letter No. 1929-2024-SMV/10, the administrative file to which this resolution refers was made available to PLAN RENTABLE for its review;

II. Issues to Determine

18. In this administrative proceeding, in the opinion of this Deputy Superintendency of Prudential Supervision, it is appropriate to determine the following:

a. Whether PLAN RENTABLE incurred or not in an infraction set forth in Annex XIII, numeral 2, subsection 2.16 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), for having failed to consider the COMPLAINANT in the quarterly draws for the return of their contributions;

b. Whether PLAN RENTABLE incurred or not in an infraction set forth in Annex XIII, numeral 2, subsection 2.16 of the SANCTIONS REGULATION, for having failed to have the COMPLAINANT's contract terminated at the appropriate time and for having failed to consider the COMPLAINANT in the quarterly draws for the return of their contributions;

c. Whether PLAN RENTABLE incurred or not in an infraction set forth in Annex XIII, numeral 2, subsection 2.16 of the SANCTIONS REGULATION, for having failed to meet the legal deadline established to provide a response to the claim filed by the COMPLAINANT;

d. Whether PLAN RENTABLE incurred or not in an infraction set forth in Annex I, numeral 2, subsection 2.1 of the SANCTIONS REGULATION, for having failed to deliver documentation and/or information required in response to the complaint filed.

e. Whether or not it is appropriate to impose a sanction on PLAN RENTABLE;

III. Analysis

3.1 Applicable Regulations

19. With respect to CONTRACT 1 and CONTRACT 2, article 21 of the Regulation of the System of Collective Funds and their Management Companies, approved by SMV Resolution No. 020-2014-SMV/01 and its amendments (hereinafter, REGULATION) provides:

“Article 21.- Contract The Contract is of a private nature and has a collective character, regulates the relationships between the Associates and the Management Company, and in it the rights and obligations of both parties are established; its content is governed by the provisions of article 95 of the Regulation. (…)”. (Underline added);

A. ON THE TERMINATION OF THE CONTRACT AND THE RETURN OF CONTRIBUTIONS THROUGH QUARTERLY DRAWS

20. With regard to the termination of the contract and the return procedure for non-awarded associates with terminated contracts, article 99, literal a)5 of the REGULATION states the following:

“Article 99.- Contract Termination The Administrator must unilaterally terminate the Contract when the Associate has failed to pay three (03) consecutive Total Installments. (...)

a) When it concerns a non-awarded Associate, (...). The Associate with a terminated Contract will participate in quarterly draws and if benefited by the draw, the Capital Installments contributed will be returned, deducting the penalties established in the Contract. If not benefited by the draw, the Associate with a terminated Contract will receive their contributions at the end of the Group, with the corresponding deductions as established in the Contract. (...)” (Underline added);

21. Article 122, fifth and sixth paragraph of the REGLAMENTO, establishes the applicable procedure for the return of contributions to non-awarded associates with terminated contracts after the first assembly in which they are to participate:

“Article 122.- Return of contributions (...) In other cases, when dealing with Associates with a non-awarded Contract, the return of their contributions may be made through draws in Assembly according to the provisions of literal a) of article 99 of the Reglamento, deducting the penalties established in the Contract. To the Associates with terminated contracts who were not benefited by the draw, their contributions will be returned at the end of the Group. (...).” (Underline added);

22. On the other hand, Clause 3 of CONTRACT 1 and CONTRACT 2 establishes:

[5] Text in force at the date on which the termination of the contracts corresponded.

“3. DELIVERY PLAN

3.0 (...)

EVERY THREE (03) MONTHS AND PRIOR TO THE FIRST AWARD, PLAN RENTABLE MUST CONDUCT A DRAW BEFORE A PUBLIC NOTARY AMONG THE TERMINATED COLLECTIVE CONTRACTS REMAINING IN THE GROUP. FOR THE PURPOSE OF THE PARTICIPANTS IN IT, THEY WILL BE ASSIGNED A CORRELATIVE NUMBER ACCORDING TO THEIR SENIORITY.

PLAN RENTABLE WILL PUBLISH THE LIST OF PARTICIPANTS IN SAID DRAW ON ITS WEBSITE THREE (03) DAYS BEFORE THE CELEBRATION THEREOF.

SAID LIST WILL BE DELIVERED TO THE NOTARY WHO WILL PROCEED TO CARRY OUT THE DRAW AMONG THE PARTICIPATING BALLS. THE WINNING NUMBER WILL BE INFORMED BY THE NOTARY AT THE SAME ASSEMBLY AND WILL BE PUBLICLY KNOWN ON THE COMPANY'S WEBSITE.

TO THE CONTRACT FAVORED IN THIS DRAW, THE CAPITAL INSTALLMENTS CONTRIBUTED WILL BE RETURNED IN ADVANCE, DULY PENALIZED ACCORDING TO THIS INSTRUMENT.

(...)”. (Underline added);

23. Likewise, Clause 4, numeral 4.3 of CONTRACT 1 and CONTRACT 2 establishes:

“4. OPERATION OF THE SYSTEM

(...)

4.3 TERMINATION OF CONTRACTS FOR NON-PAYMENT OF TOTAL INSTALLMENT:

PLAN RENTABLE WILL UNILATERALLY TERMINATE THE CONTRACT WHEN THE ASSOCIATE HAS FAILED TO PAY THREE (3) CONSECUTIVE TOTAL INSTALLMENTS. (...).

(...)”

24. In that context, Clause 7, numeral 7.1, literal i) of CONTRACT 1 and CONTRACT 2 establishes:

“7. OBLIGATIONS AND RIGHTS

(...)

7.1 THE FOLLOWING CONSTITUTE OBLIGATIONS OF PLAN RENTABLE:

(...)

i) IN THE CASE OF A NON-AWARDED ASSOCIATE WHOSE CONTRACT HAS BEEN TERMINATED, THE VALUE OF THE CAPITAL INSTALLMENTS CONTRIBUTED WILL BE RETURNED, DEDUCTING AS PENALTY THE EQUIVALENT OF TWO OF THEM. THIS RETURN WILL BE MADE AT THE LIQUIDATION STAGE OF THE GROUP AND/OR IN THE QUARTERLY DRAWS.

(...)”

7.3 THE ASSOCIATE HAS THE FOLLOWING RIGHTS:

(...)

b) RECEIVE THE RETURNS CORRESPONDING TO THEM IN THE CASES AND TERMS PROVIDED IN THE COLLECTIVE FUNDS ADMINISTRATION CONTRACT OR THE RETURN OF THE ENTIRE AMOUNT OF THEIR MONEY, IF THE WITHDRAWAL OCCURS BEFORE THE FIRST AWARD ASSEMBLY.

(...)”. (Underline added);

B. ON THE DEADLINE FOR HANDLING CLAIMS

25. Regarding the resolution of claims, article 68 of the REGLAMENTO provides the following:

“Article 68.- Resolution of claims The Administrator must have personnel responsible for attending to the claims of the Associates, subject to the provisions of the Norms applicable to complaints and claims against entities supervised by the Superintendency of the Securities Market - SMV, approved by SMV Resolution No. 006-2012-SMV-01, or the norm that replaces it.”;

26. In that sense, article 3 of the “Norms applicable to complaints and claims against entities supervised by the Superintendency of the Securities Market - SMV” approved by SMV Resolution No. 006-2012-SMV-01 (hereinafter, NORMS APPLICABLE TO COMPLAINTS AND CLAIMS) establishes the procedure for handling claims:

“Article 3.- Handling of claims by legal entities authorized by the SMV Without prejudice to compliance with the norms that determine the direct handling of claims that final consumers may file and the obligation to have a Complaints Book, within the framework of the provisions of articles 24 and 150 of the Consumer Protection and Defense Code, Law No. 29571, the legal entities to which the SMV has granted operating authorization are obliged to directly handle any claim by their clients regarding the services they provide, within a maximum period of thirty (30) calendar days from the date of submission of the respective claim. Said period may be extended for an equal period when the nature of the claim justifies it, a situation that is brought to the attention of the claimant before the end of the initial period. If the claimant requires it, the response must be made in writing.

(...).”(Underline added);

27. Likewise, clause 7, numeral 7.3, literal c) last paragraph of CONTRACT 1 and CONTRACT 2 establishes:

“7. OBLIGATIONS AND RIGHTS

(...)

7.3 THE ASSOCIATE HAS THE FOLLOWING RIGHTS:

(...)

c) BE ATTENDED BY PLAN RENTABLE UPON THE FILING OF ANY CLAIM OR INQUIRY WITHIN A MAXIMUM PERIOD OF THIRTY (30) CALENDAR DAYS”;

C. ON THE DOCUMENTATION AND/OR INFORMATION REQUIRED FROM PLAN RENTABLE IN RESPONSE TO THE COMPLAINT FILED

28. Article 54 of the REGLAMENTO establishes:

“Article 54.- Supervision and Control The Administrator must provide to the SMV officials the documentation, books, records, or other information required during inspections and other supervision and control actions. Consequently, the Administrator is prohibited from carrying out any action that could hinder, delay or impede the supervision and control actions of the SMV”;

3.2 Charges

A. ON THE NON-CONSIDERATION OF CONTRACT 1 IN THE QUARTERLY DRAWINGS OF RESOLVED CONTRACTS FOR THE REFUND OF CONTRIBUTIONS

29. According to what was indicated in the complaint, the COMPLAINANT made the last payment regarding the monthly installments corresponding to CONTRACT 1 on 08 January 2021, because –as indicated in his complaint brief- for personal reasons it was not possible for him to pay the subsequent monthly installments;

30. In this sense, from what was indicated by the COMPLAINANT and from the review of the information sent by PLAN RENTABLE to the SMV, through the “Associate Status File (SIT)” 6 and recorded in the SMV's collective funds information systems, it was verified that with regard to CONTRACT 1, the COMPLAINANT presents a “Resolved” status as of the date of the assembly of the month of January 2021 and with a withdrawal date7 of 29 April 2021; that is, according to what was reported by PLAN RENTABLE, in accordance with the provisions of clause 4.3 of the contracts, previously cited, CONTRACT 1 was resolved by PLAN RENTABLE on 29 April 2021;

31. In this context, taking into account that with regard to CONTRACT 1 the COMPLAINANT had the status of an associate without an awarded asset whose contract has been resolved and considering that CONTRACT 1 was resolved after the first assembly corresponding to Group No. 6003 in which the COMPLAINANT was to participate (28 September 2018), the application of article 122 of the REGULATION corresponds, for the refund of his contributions;

32. Article 122 of the REGULATION establishes that the refund of contributions to associates with any non-awarded contract may be made through quarterly drawings in assembly, in accordance with the provisions of literal a) of the aforementioned article 99 of the REGULATION, deducting the penalties established in the contract;

33. Likewise, Clause 3, numeral 3.0 of CONTRACT 1 establishes that every three (03) months and prior to the first award, PLAN RENTABLE must conduct a drawing among the resolved collective contracts held by the group and the contract favored in said drawing will be refunded in advance the contributed capital installments, duly penalized in accordance with the contract. Likewise, in accordance with Clause 7, numeral 7.1, literal i), to the

[6] In accordance with the provisions of the “Manual of Technical Specifications for the submission to the SMV of information from collective funds administration companies” approved by Superintendent Resolution No. 102-2016-SMV/02.

[7] Date on which the contract of an associate ceases to belong to a group, in this case it corresponds to a resolved contract.

non-awarded associate whose contract has been resolved, the value of the corresponding contributed capital installments will be refunded and said refund will be made in the quarterly drawings or in the group liquidation stage;

34. Notwithstanding the foregoing, the COMPLAINANT reported that on 12 January 2023 he sent a letter to PLAN RENTABLE, in which he indicated that from the review of the PLAN RENTABLE website he observed that CONTRACT 1 only participated in assembly 32 of resolved contracts, thus losing the opportunity to be favored in the drawings held in the following assemblies (35, 38, 41, 44 and 47). However, he did not receive a response from PLAN RENTABLE, according to what was indicated by the complainant;

35. In this sense, PLAN RENTABLE was requested to report on the assemblies corresponding to the quarterly drawings in which the complainant participated with regard to said contract and the minutes of said assemblies with the results of the quarterly drawings for the refund of contributions; as well as the response to the letter sent to PLAN RENTABLE on 12 January 2023. However, to date, PLAN RENTABLE has not responded to these requests;

36. Without prejudice to the foregoing, from the review carried out on 18 December 2023, of the list of assemblies of Resolved Participants, published on the PLAN RENTABLE website, it is observed that CONTRACT 1 participated, in addition to assembly 32, in quarterly assemblies 56 and 598, that is, it would not have additionally participated in assemblies 50 and 53;

37. In this sense, considering that CONTRACT 1 was resolved by PLAN RENTABLE on 29 April 2021 by application of Clause 4.3 of the aforementioned contract in accordance with article 99 of the REGULATION; in accordance with article 122 of the REGULATION, Clause 3, numeral 3.0, as well as Clause 7, numeral 7.1, literal i) and numeral 7.3, literal b) of CONTRACT 1, the COMPLAINANT in his capacity as an associate without an awarded asset with a resolved contract, should have participated in all quarterly drawings for the refund of his contributions, from the date of the resolution of CONTRACT 1, in accordance with the provisions of the REGULATION and CONTRACT 1. Therefore, in the event that he had been favored in the drawing, the contributed capital installments would have been refunded to him, with the corresponding deductions in accordance with CONTRACT 1;

38. Based on the foregoing, it is noted that although PLAN RENTABLE should have considered the participation of the COMPLAINANT, in accordance with the provisions of the REGLAMENTO and CONTRACT 1 in all quarterly draws, from the date of termination of CONTRACT 1, PLAN RENTABLE only considered the participation of the COMPLAINANT in relation to CONTRACT 1, in three (3) quarterly assemblies, disregarding the participation of the COMPLAINANT in the other previously mentioned assemblies. Consequently, PLAN RENTABLE caused the COMPLAINANT to lose the opportunity to be benefited in any of the draws conducted by PLAN RENTABLE in assemblies 35, 38, 41, 44, 47, 50 and 53;

39. In that sense, PLAN RENTABLE would not have complied with observing the provisions of clause 3, numeral 3.0 and clause 7, numeral 7.1, literal i) and numeral 7.3, literal b) of CONTRACT 1, since it did not include the COMPLAINANT in relation to CONTRACT 1, in the previously mentioned quarterly draws, causing the COMPLAINANT to lose the opportunity to be benefited in any

[8] Held on 03 November 2023, as published on the PLAN RENTABLE website.

of said draws, in accordance with the provisions of article 99, literal a) and article 122 of the REGLAMENTO;

40. Therefore, PLAN RENTABLE was charged with having incurred one (1) infraction classified as serious, in accordance with Annex XIII, numeral 2, subsection 2.16 of the Reglamento de Sanciones, approved by Resolución SMV N° 035-2018-SMV/01 and its amendments (hereinafter, REGLAMENTO DE SANCIONES), according to which it constitutes an infraction: “Failure to comply with the provisions of the collective funds administration contract entered into with the associate”;

B. ON THE TERMINATION OF THE CONTRACT AND THE NON-CONSIDERATION OF CONTRACT 2 IN THE QUARTERLY DRAWS OF TERMINATED CONTRACTS FOR THE REFUND OF CONTRIBUTIONS

41. In the complaint, the COMPLAINANT stated that he made the last payment in relation to the monthly installments corresponding to CONTRACT 2, on 16 July 20219, because – as indicated in his complaint brief – for personal reasons he was unable to pay the subsequent monthly installments. However, the complainant pointed out that as of the date of the complaint, PLAN RENTABLE had not terminated the referred contract, despite having remained in default for more than three (3) months;

42. For this reason, the COMPLAINANT reported that on 12 January 2023 he sent a letter to PLAN RENTABLE in relation to CONTRACT 2, in which he indicated that on the PLAN RENTABLE website he could see that the referred contract did not participate in the assemblies of terminated contracts. However, according to what the complainant indicated, he did not receive a response from PLAN RENTABLE;

43. In that sense, through the OFICIO, PLAN RENTABLE was requested to indicate the status of the contracts signed with the complainant, and if it was terminated, to indicate from what date the COMPLAINANT was considered in the quarterly draws for the refund of contributions to associates with terminated contracts, and to specify in which quarterly draws the complainant has participated for each of the terminated contracts, presenting the corresponding evidence. Likewise, a response was requested to the letter sent to PLAN RENTABLE on 12 January 2023;

44. In response to said request, by means of a brief presented on 16 February 2023 (hereinafter, RESPONSE), PLAN RENTABLE stated that CONTRACT 2 is indeed terminated, for which it sent a copy of a letter dated 04 November 2021 addressed to the COMPLAINANT, which according to PLAN RENTABLE was received by the COMPLAINANT's sister. In said brief it is stated that, in strict application of Clause 4.3 of CONTRACT 2, they are compelled to terminate it. Likewise, in the RESPONSE, PLAN RENTABLE indicated that “(…) we must indeed indicate that said contract has not participated in the draw of terminated contracts, due to our error, unfortunately verbal agreements were reached that are now unknown as we do not have said agreements in material form, but for that we assume our responsibility, (…)”

45. Also, in relation to the response to the letter of 12 January 2023, PLAN RENTABLE indicated that they proceeded to inform the

[9] Date verified with the document “Reporte de pagos del asociado” submitted by PLAN RENTABLE for CONTRACT 2.

COMPLAINANT, that they would respond directly to the Intendencia General de Cumplimiento Prudencial (IGCP);

46. Additionally, through the RESPONSE, PLAN RENTABLE indicated the following “(…) we must indicate that said contract is already participating in the draw of terminated contracts”. Therefore, with Oficio N° 4774-2023-SMV/10.3, PLAN RENTABLE was requested to submit the minutes of the assemblies corresponding to the quarterly draws in which the participation of the COMPLAINANT is evidenced, in accordance with what was requested in the OFICIO and considering what was mentioned in the RESPONSE. However, to date, PLAN RENTABLE has not responded to said request;

47. Thus, it should be noted that according to the second paragraph of article 1430 of the Código Civil10, termination occurs by operation of law when the interested party communicates to the other that it wishes to avail itself of the termination clause. Likewise, in Clause 3, numeral 3.9 of CONTRACT 2, it is stated that PLAN RENTABLE will communicate in writing to the Associate the termination of the contract;

48. In this regard, although PLAN RENTABLE submits as proof of the termination of CONTRACT 2 a letter dated 04 November 2021 addressed to the COMPLAINANT and in which what appears to be a handwritten signature of the COMPLAINANT's sister is observed, as indicated by PLAN RENTABLE, with no date of receipt; this does not reliably evidence that the COMPLAINANT was effectively notified of the termination of CONTRACT 2, so that the termination of the contract occurs by operation of law pursuant to article 1430 of the Civil Code;

49. Even more so when, from the review of the information submitted by PLAN RENTABLE through the "Archivo de Situación de Asociados (SIT)" as of 18 September 2023, it is observed that CONTRACT 2 shows a delinquent status and not a terminated one;

50. Likewise, in the information submitted by PLAN RENTABLE to the Intendencia General de Supervisión de Entidades (IGSE) on 12 December 202311, PLAN RENTABLE has reported CONTRACT 2 as active, with the COMPLAINANT remaining in delinquent status;

51. Considering the foregoing, PLAN RENTABLE has not evidenced that it proceeded to terminate CONTRACT 2, even though the termination of said contract was warranted pursuant to clause 4.3 thereof;

52. Additionally, from the review carried out as of 19 December 2023 of the list of assemblies of Terminated Participants published on the PLAN RENTABLE website, the COMPLAINANT was not found as a participant in the quarterly assemblies in relation to CONTRACT 2, which was warranted by application of article 122 of the REGLAMENTO, Clause 3, numeral 3.0, as well as Clause 7, numeral 7.1, literal i) and numeral 7.3, literal b) of CONTRACT 2. It should be added

[10] Article 1430.- Resolutory condition It may be expressly agreed that the contract shall be terminated when one of the parties fails to perform a specific obligation incumbent upon it, established with all precision. The termination occurs by operation of law when the interested party communicates to the other that it wishes to avail itself of the resolutory clause.

[11] File No. 2023048641.

that PLAN RENTABLE did not present the minutes evidencing the COMPLAINANT's participation in the quarterly draws of terminated contracts, for said contract, despite the request made;

53. In that sense, PLAN RENTABLE did not include the COMPLAINANT in relation to CONTRACT 2 in the assemblies corresponding to the quarterly draws of terminated contracts in which they were entitled to participate. Consequently, PLAN RENTABLE caused the COMPLAINANT to lose the opportunity to be benefited in any of the quarterly draws conducted by PLAN RENTABLE. Since, had they been benefited in any of the draws, the capital contributions made would have been returned to them, deducting the corresponding concepts in accordance with CONTRACT 2;

54. It should be added that, by not proceeding with the termination of CONTRACT 2, it did not allow the COMPLAINANT to participate in the quarterly draws for the return of their contributions, as of the date of termination of CONTRACT 2, in accordance with the provisions of the REGLAMENTO and CONTRACT 2;

55. Consequently, PLAN RENTABLE would not have complied with clause 4.3 of CONTRACT 2 in accordance with article 99 of the REGLAMENTO, by not terminating CONTRACT 2; and with observing the provisions of clause 3, numeral 3.0 and clause 7, numeral 7.1, literal i) and numeral 7.3, literal b) of CONTRACT 2, since it did not include the COMPLAINANT in relation to CONTRACT 2 in any of the quarterly draws of terminated contracts in which they were entitled to participate, causing the COMPLAINANT to lose the opportunity to be benefited in any of said draws, in accordance with the provisions of article 99, literal a) and article 122 of the REGLAMENTO;

56. Therefore, PLAN RENTABLE was charged with having incurred one (1) infraction classified as serious, in accordance with Annex XIII, numeral 2, item 2.16 of the REGLAMENTO DE SANCIONES, according to which it constitutes an infraction: "Failure to comply with the provisions of the collective fund administration contract entered into with the associate";

C. ON THE TIME LIMIT FOR HANDLING CLAIMS

57. The COMPLAINANT, through their complaint, indicated that on 12 January 2023 they sent two (2) letters to PLAN RENTABLE, one in relation to CONTRACT 1 and another in relation to CONTRACT 2, which were received by PLAN RENTABLE on the same date;

58. From the contents of the letters submitted, it is noted that in relation to CONTRACT 1, the COMPLAINANT indicated to PLAN RENTABLE that on the PLAN RENTABLE website they could see that said contract participated only in assembly 32 of terminated contracts, losing the opportunity to be drawn in the following assemblies (assemblies 35, 38, 41, 44 and 47), and therefore requested PLAN RENTABLE to explain the reason why it did not participate in the aforementioned assemblies;

59. Likewise, in relation to CONTRACT 2, the COMPLAINANT indicated to PLAN RENTABLE that on the PLAN RENTABLE website they could see that the referred contract did not participate in the assemblies of terminated contracts, and therefore requested PLAN RENTABLE to explain the reason why it did not participate in the assemblies of terminated contracts;

60. In both cases, the complainant provided their email address and their home address. However, as of the date of the complaint, they indicated that more than twenty (20) days had elapsed and they had not received a response from PLAN RENTABLE;

61. In that sense, through the OFICIO, PLAN RENTABLE was requested to provide the communications sent to the complainant in response to the letters sent to PLAN RENTABLE on 12 January 2023. However, in relation to CONTRACT 1, to date, PLAN RENTABLE has not responded to said request;

62. With regard to CONTRACT 2, through the RESPONSE, PLAN RENTABLE indicated that they proceeded to inform the COMPLAINANT that they would respond directly to the IGCP;

63. Thus, it must be noted that in accordance with article 68 of the REGULATION, article 3 of the RULES APPLICABLE TO COMPLAINTS AND CLAIMS, as well as clause 7, numeral 7.3, literal c) of CONTRACT 1 and CONTRACT 2, the term for the resolution of claims by associates on the part of PLAN RENTABLE is thirty (30) calendar days from their receipt, and may be extended for an equal period if warranted, with prior communication to the associate before the end of the initial term;

64. In that sense, the claims filed by the COMPLAINANT should have been resolved within thirty (30) days from their receipt; however, PLAN RENTABLE has not accredited having responded to the claim with regard to CONTRACT 1 within said term, despite having been requested through literal e) of the OFFICIAL LETTER;

65. Likewise, according to the RESPONSE, PLAN RENTABLE indicated with regard to CONTRACT 2 that they proceeded to inform the COMPLAINANT that they would respond directly to the IGCP. That is, they did not comply with responding to the claim made by the complainant;

66. Considering the foregoing, PLAN RENTABLE would not have complied with observing the provisions of article 68 of the REGULATION, article 3 of the RULES APPLICABLE TO COMPLAINTS AND CLAIMS and clause 7, numeral 7.3, literal c) last paragraph of CONTRACT 1 and CONTRACT 2, that is, PAN RENTABLE would not have complied with the legal term established to provide a response to the claims filed by the COMPLAINANT;

67. Therefore, PLAN RENTABLE was charged with having incurred one (1) infraction classified as serious, in accordance with Annex XIII, numeral 2, item 2.16 of the SANCTIONS REGULATION, according to which it constitutes an infraction: “Failure to comply with the provisions of the collective fund administration contract entered into with the associate”;

D. ON THE DOCUMENTATION AND/OR INFORMATION REQUESTED FROM PLAN RENTABLE IN RESPONSE TO THE COMPLAINT FILED

68. Within the framework of the preliminary inquiries carried out in response to the complaint filed by the COMPLAINANT, through the OFFICIAL LETTER, notified to PLAN RENTABLE on 07 February 2023, PLAN RENTABLE was requested to submit information for the evaluation of said complaint, within a term of seven (7) business days counted from the day following the notification of the OFFICIAL LETTER.

However, once the granted term ended, PLAN RENTABLE submitted only information regarding CONTRACT 2;

69. Subsequently, with Official Letter No. 4774-2023- SMV/10.3 notified on 19 October 2023, PLAN RENTABLE was reiterated the request for information related to the complaint filed by the COMPLAINANT, with regard to CONTRACT 1, including the quarterly assemblies in which the complainant participated and the minutes of said assemblies with their results; as well as its comments on the denounced facts;

70. Likewise, in accordance with what was requested in the OFFICIAL LETTER, with regard to CONTRACT 2, the submission of the minutes of the assemblies corresponding to the quarterly draws in which the COMPLAINANT's participation is evidenced was requested, considering that according to the RESPONSE, PLAN RENTABLE indicated the following “(…) if we must indicate that it is already participating in the draw of resolved said contract”. For which, a term of seven (7) business days following the notification of Official Letter No. 4774-2023-SMV/10.3 was granted, which expired on 30 October 2023;

71. However, to date PLAN RENTABLE has not complied with submitting the required information;

72. On this matter, it should be noted that in accordance with article 54 of the REGULATION, the administering companies are obliged to provide to the SMV officials the information requested during inspections and other supervision and control actions, such as the preliminary inquiries in response to the filing of a complaint before the SMV;

73. For the foregoing, PLAN RENTABLE would not have complied with observing the provisions of article 54 of the REGULATION, since it did not comply with submitting the information requested with regard to CONTRACT 1 and CONTRACT 2, as previously indicated, despite the fact that said documentation was requested on more than one occasion by the SMV;

74. In that sense, PLAN RENTABLE was charged with having incurred one (1) infraction classified as serious, in accordance with Annex I, numeral 2, item 2.1 of the SANCTIONS REGULATION, according to which it constitutes an infraction: “Failure to present, deny or delay the delivery of books, documents and other information required by the SMV during inspections or preliminary inquiries or any other audit activity, failure to grant the facilities that the SMV requests in the execution of the supervision and control actions it orders; as well as presenting documentation, with the purpose of delaying the procedure, or failure to make available to the SMV the documentation to which they are obliged or in any other way obstruct the supervision and control actions”;

3.3 Defenses

75. In response to the charges made, through a brief submitted on 24 January 2024, PLAN RENTABLE expressly acknowledges its responsibility for the imputed infractions; in accordance with the provisions of article 257, numeral 2 of the TUO OF THE LPAG and by virtue of the provisions of article 26, literal a) of the SANCTIONS REGULATION;

76. Additionally, PLAN RENTABLE requests that it be considered, as it states, that it has not caused any economic harm, nor repercussion in the market, they have not obtained illicit benefit, they have not generated harm to the public interest and there has been no intention of non-compliance with the regulatory provisions. Likewise, it requests the application of the mitigating circumstance of responsibility established in article 26, literal a) of the REGLAMENTO DE SANCIONES and that the sanction criteria established in article 248, numeral 3 of the TUO DE LA LPAG be considered;

3.4 Evaluation of the defenses

77. In this regard, it must be indicated that PLAN RENTABLE, availing itself of article 26, literal a) of the REGLAMENTO DE SANCIONES, has expressly and in writing acknowledged its responsibility regarding the infractions subject to charges. Therefore, said acknowledgment will be considered when determining the sanction to be imposed;

78. It is necessary to point out that PLAN RENTABLE at the date of the commission of the facts had operating authorization granted by the SMV, being aware of the regulations under which the collective funds system operates, as well as the rights and obligations established in the contracts it administers;

A. ON THE NON-CONSIDERATION OF CONTRACT 1 IN THE QUARTERLY DRAWINGS OF RESOLVED CONTRACTS FOR THE RETURN OF CONTRIBUTIONS

79. With regard to this charge, it must be noted that, considering that CONTRACT 1 was resolved by PLAN RENTABLE on 29 April 2021, the COMPLAINANT, in its capacity as an associate without an awarded asset with a resolved contract, should have participated in all quarterly drawings for the return of its contributions, from the date of the resolution of CONTRACT 1, in accordance with the provisions of the REGLAMENTO and CONTRACT 1. Therefore, if it had been favored in the drawing, the capital installments contributed would have been returned to it, with the deductions that correspond in accordance with CONTRACT 1;

80. In that sense, PLAN RENTABLE should have considered the participation of the COMPLAINANT, in accordance with the provisions of the REGLAMENTO and CONTRACT 1 in all quarterly drawings, from the date of the resolution of CONTRACT 1; however, PLAN RENTABLE only considered the participation of the COMPLAINANT in relation to CONTRACT 1, in three (3) quarterly assemblies (32, 56 and 59), omitting the participation of the COMPLAINANT in the other quarterly drawing assemblies previously mentioned (3512, 38, 41, 44, 47, 50 and 5313);

81. It should be added that through OFICIO and OFICIO 1, PLAN RENTABLE was requested to report on the assemblies corresponding to the quarterly drawings in which the COMPLAINANT participated, in relation to CONTRACT 1 and the minutes of said assemblies. However, PLAN RENTABLE did not respond to said requests. Likewise, it has not been informed in its defense brief;

82. Therefore, it has been established, in accordance with the provisions of the REGLAMENTO and CONTRACT 1, that PLAN RENTABLE did not include the COMPLAINANT in relation to CONTRACT 1, in the quarterly drawings previously

[12] According to the information shown on the PLAN RENTABLE website, assembly 35 would have been held on 05 November 2021.

[13] According to the information shown on the PLAN RENTABLE website, assembly 53 would have been held on 05 May 2023.

mentioned, causing the COMPLAINANT to lose the opportunity to be favored in any of said drawings. If it had been favored in the drawing, the capital installments contributed would have been returned to it, with the deductions that correspond in accordance with CONTRACT 1;

83. Consequently, PLAN RENTABLE incurred one (1) infraction classified as serious, in accordance with Annex XIII, numeral 2, subsection 2.16 of the REGLAMENTO DE SANCIONES;

B. ON THE RESOLUTION OF THE CONTRACT AND THE NON-CONSIDERATION OF CONTRACT 2 IN THE QUARTERLY DRAWINGS OF RESOLVED CONTRACTS FOR THE RETURN OF CONTRIBUTIONS

84. Regarding this charge, it must be noted that, in relation to CONTRACT 2, the COMPLAINANT remained in a state of default for more than three (3) months. However, despite the fact that the COMPLAINANT did not make the payment of the monthly installments for the months of August, September and October 2021, PLAN RENTABLE did not resolve said contract;

85. In this sense, PLAN RENTABLE, by not proceeding with the resolution of CONTRACT 2, did not allow the COMPLAINANT to participate in the quarterly drawings for the return of its contributions, from the date of the resolution of CONTRACT 2, that is, in the quarterly assemblies of resolved contracts held from the month of November 2021, in accordance with the provisions of the REGLAMENTO and CONTRACT 2;

86. Consequently, it has been established, in accordance with the provisions of the REGLAMENTO and CONTRACT 1, that PLAN RENTABLE, by not resolving CONTRACT 2, did not include the COMPLAINANT in any of the assemblies corresponding to the quarterly drawings of resolved contracts in which it was entitled to participate. Thus, PLAN RENTABLE caused the COMPLAINANT to lose the opportunity to be favored in any of the quarterly drawings held by PLAN RENTABLE;

87. If it had been favored in any of the drawings, the capital installments contributed would have been returned to it, deducting the corresponding concepts in accordance with CONTRACT 2;

88. Therefore, PLAN RENTABLE incurred one (1) infraction classified as serious, in accordance with Annex XIII, numeral 2, subsection 2.16 of the REGLAMENTO DE SANCIONES;

C. ON THE DEADLINE FOR HANDLING CLAIMS

89. With regard to this charge, it must be noted that the COMPLAINANT proved that on 12 January 2023 it submitted to PLAN RENTABLE a letter in relation to CONTRACT 1, through which it requested from PLAN RENTABLE an explanation of the reason why it did not participate in the assemblies of resolved contracts 35, 38, 41, 44 and 47, losing the opportunity to be drawn in said assemblies;

90. Likewise, the COMPLAINANT proved that on the same date, it submitted to PLAN RENTABLE a letter in relation to CONTRACT 2, through which it requested from PLAN RENTABLE an explanation of the reason why it did not participate in the assemblies of resolved contracts;

91. In that sense, the claims filed by the COMPLAINANT should have been resolved within thirty (30) days from their receipt; however, PLAN RENTABLE did not prove that it had responded to the claim regarding CONTRACT 1, despite having been requested to do so;

92. Likewise, in relation to CONTRACT 2, PLAN RENTABLE failed to respond to the claim made by the COMPLAINANT, since PLAN RENTABLE stated that they had indicated to the COMPLAINANT that they would respond directly to the IGCP;

93. Considering the foregoing, it has been established that PLAN RENTABLE failed to comply with the legal deadline established to provide a response to the claims filed by the COMPLAINANT, in accordance with the provisions of the REGLAMENTO, the NORMAS APLICABLES A DENUNCIAS Y RECLAMOS and CONTRACT 1 and CONTRACT 2;

94. Therefore, PLAN RENTABLE incurred one (1) infraction classified as serious, in accordance with Annex XIII, numeral 2, subsection 2.16 of the REGLAMENTO DE SANCIONES;

D. ON THE DOCUMENTATION AND/OR INFORMATION REQUESTED FROM PLAN RENTABLE IN RESPONSE TO THE COMPLAINT FILED

95. Regarding this charge, it should be noted that by means of the OFICIO, notified on 07 February 2023, PLAN RENTABLE was requested to submit information for the evaluation of the complaint. However, once the granted deadline expired, PLAN RENTABLE submitted only partial information;

96. Subsequently, by means of Oficio N° 4774-2023- SMV/10.3, notified on 19 October 2023, PLAN RENTABLE was reminded of the request for information not submitted, and additional information was also requested. However, PLAN RENTABLE did not respond to this request and therefore failed to submit the requested information, including, among other things, the minutes of the quarterly assemblies of terminated contracts in which the COMPLAINANT participated for CONTRACT 1 and CONTRACT 2;

97. Based on the foregoing, it has been established that PLAN RENTABLE failed to observe the provisions of article 54 of the REGLAMENTO, since it failed to submit the requested information, as indicated in the preceding paragraph, despite being requested to do so on more than one occasion;

98. Consequently, PLAN RENTABLE incurred one (1) infraction classified as serious, in accordance with Annex I, numeral 2, subsection 2.1 of the REGLAMENTO DE SANCIONES;

IV. Evaluation of the sanction

99. In accordance with article 7° of Decreto Ley N° 21907 on Empresas de Fondos Colectivos and article 25° of the REGLAMENTO DE SANCIONES; in accordance with article 248°, numeral 314 of the TUO DE LA LPAG and the

[14] “Article 248.- Principles of the 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 is not more advantageous for the offender than complying with the infringed rules or assuming the sanction. However, the sanctions to be applied

article 257°15 of the aforementioned body of rules; the administrative sanctions that are imposed must take into account the criteria set forth by Decreto Ley N° 21907, the REGLAMENTO DE SANCIONES and the TUO DE LA LPAG;

100. Within that framework, the evaluation of the sanction must consider: a) Prior record of the offender; b) Recidivism; c) Circumstances of the commission of the infraction; d) Economic harm caused and its impact on the market; e) Illicit benefit resulting from the commission of the infraction; f) Probability of detection of the infraction; g) Seriousness of the harm to the public interest and/or protected legal interest; h) Existence or absence of intent in the conduct of the offender;

101. 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 REGLAMENTO DE SANCIONES, and so that these criteria are adequately considered so that their assessment observes the principle of reasonableness and the sanction to be imposed is consistent with them, the following criteria are analyzed;

102. Regarding the prior record, in accordance with the provisions of article 25°, literal a) of the REGLAMENTO DE SANCIONES, final sanctions imposed by the SMV within the period of four (4) years prior to the commission of the infraction to be sanctioned constitute prior record. The aforementioned article specifies that the commission of the same infraction in the year prior to the infraction to be sanctioned is not considered prior record;

103. In this regard, from the review carried out in said period, it has been verified that PLAN RENTABLE has the following final sanctions on record:

a) Resolución de Superintendencia Adjunta SMV N° 007-2019-SMV/1016, by which PLAN RENTABLE is sanctioned with a fine amounting to 12 UIT, for having incurred seven (07) infractions of a serious nature classified in Annex

[15] “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 ability to understand the infraction. d) The mandatory order of a competent authority, issued in the exercise of its functions. e) Error induced by the Administration or by a confusing or illegal administrative provision. f) 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 conditions mitigating liability for infractions: a) If, after a sanctioning administrative procedure has begun, the offender expressly and in writing acknowledges its responsibility. 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 rule".

[16] It should be noted that said precedent applies to the infractions related to the non-consideration of CONTRACT 1 and CONTRACT 2 in the quarterly draws of resolved contracts for the return of contributions, as well as the breach of the term established for the attention of claims. It was notified on 12 March 2019.

must be proportional to the breach 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 seriousness of the damage to the public interest and/or protected legal interest; 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 intent in the conduct of the offender".

XIX, numeral 2, subsection 2.12 of the Sanctions Regulation, approved by CONASEV Resolution No. 055-2001-EF/94.10, for not having complied with submitting Independent Annual Compliance Reports, Semiannual Reports of the Compliance Officer and Annual Special Audit Plans within the terms established in the Norms for the Prevention of Money Laundering and Financing of Terrorism.

Said resolution was subject to an appeal and through Superintendency Resolution No. 080-2020-SMV/02 the appeal filed by PLAN RENTABLE was declared partially founded, confirming the provisions in articles 2, 6 and 7 of said resolution and leaving without effect the provisions in its articles 1, 3, 4 and 5 and, consequently, ordering the archiving of the infractions indicated in the cited articles.

Likewise, article 8 of the Deputy Superintendency Resolution SMV No. 007-2019-SMV/10 is modified, consequently, the fine imposed on PLAN RENTABLE is reduced from 12 UIT to 5.14 UIT for the commission of the infractions referred to in articles 2, 6 and 7 of the cited resolution.

Consequently, Deputy Superintendency Resolution SMV No. 007-2019-SMV/10 became final in those respects on 25 August 2020.

104. In relation to recidivism for the commission of the same infraction, the final sanction imposed by the SMV within the term of one (1) year prior to the commission of the infraction to be sanctioned is taken into account. Within this framework, it must be stated that PLAN RENTABLE presents recidivism regarding literal d. of the second section of this resolution, which refers to not presenting the required information. Regarding the other charges, PLAN RENTABLE does not present recidivism. In this sense, from the review carried out in said period, the infraction taken into account for recidivism is the following;

b) Deputy Superintendency Resolution SMV No. 001-2022-SMV/1017, which sanctions PLAN RENTABLE with a fine amounting to 4 UIT, for having incurred two (02) infractions of a serious nature typified in Annex XIV, numeral 2, subsections 2.4 and 2.1 of the Sanctions Regulation, approved by CONASEV Resolution No. 055-2001-EF/94.10, for not keeping the accounting of the collective funds separately from the accounting of the collective funds administration company, and not preparing the financial statements in observance of the International Financial Reporting Standards; and not complying with providing information required by the SMV, respectively.

Said resolution was subject to an appeal and through Superintendency Resolution No. 068-2023-SMV/02 the appeal filed against Deputy Superintendency Resolution SMV No. 001-2022-SMV/10 was declared unfounded. Which became final on 31 August 2023;

105. In relation to the circumstances of the commission of the infractions, it must be mentioned that PLAN RENTABLE, at the date of the commission of

[17] The aforementioned precedent applies to the infraction related to the non-delivery of documentation and/or information required from PLAN RENTABLE in response to the complaint filed. It was notified on 15 February 2022.

the facts, had operating authorization granted by the SMV to carry out activities as a collective funds administration company, so considering said condition, it knew and knows the norms that regulate the collective funds system and in that sense, the norms that oblige it to proceed with the resolution of the contracts it administers and the return of contributions in accordance with the provisions of the REGULATION and the terms established in the referred contracts;

106. Likewise, it knew and knows the norms that oblige it to attend to the claims presented by the associates, within the term established by the applicable regulations, as well as the obligation to comply with delivering the information and/or documentation required in the inquiries carried out;

107. It should be reiterated that PLAN RENTABLE has the obligation to comply with the contract signed with the associates, which establishes the rights and obligations of both parties, whose model is authorized by the SMV, at the request of the administered;

108. Notwithstanding this, PLAN RENTABLE incurred four (4) infractions, proving that it did not comply with resolving the contract in accordance with its terms, and also did not comply with considering the participation of the COMPLAINANT in the quarterly draws so that the contributions made are returned to the COMPLAINANT before the end of the group; likewise, it did not comply with attending to the claims within the established term and also did not comply with delivering the required information;

109. In this regard, it should be noted that according to the Associate Status File (SIT) and the information submitted by PLAN RENTABLE through File No. 2023048641, the total amount paid by the COMPLAINANT as capital contribution was US$ 7,666.59 and US$ 3,333.20 for CONTRACT 1 and 2, respectively; this is a total of US$ 10,999.79;

110. As for the economic harm caused and the impact on the market, in this case, it has not been evidenced that the infractions incurred by PLAN RENTABLE have had an impact on the collective funds system or produced a concrete quantifiable harm to the latter;

111. However, from the facts it is evident that harm has been caused to the COMPLAINANT, since PLAN RENTABLE did not include the COMPLAINANT in the assemblies corresponding to the quarterly draws of resolved contracts in which they were entitled to participate, causing the COMPLAINANT to lose the opportunity to benefit from the return of the corresponding contributions amounting to a total of US$ 10,999.79 in any of said quarterly draws and not necessarily having to wait until the end of the group. It should be noted that according to the Superintendence of Banking, Insurance and AFP, the Average Annual Passive Rates of Operations in Foreign Currency of Banking Companies for natural persons at the close of November 2021, 2022 and 2023 were 0.42%, 2.87% and 2.94%, respectively;

112. It should be added that the COMPLAINANT, if they had benefited from the return of the corresponding contributions in advance, in any of said quarterly draws, could have disposed of their money according to their needs and obtained some benefit from it;

113. Regarding the illicit benefit resulting from the commission of the infractions, it should be noted that it has not been proven that PLAN RENTABLE has obtained a benefit directly related to the infractions under analysis in this administrative sanctioning procedure;

114. Regarding the probability of detection of the infractions, it should be noted that the facts constituting infractions committed by PLAN RENTABLE were evidenced when conducting the respective inquiries and evaluating compliance with the applicable regulations in the development of its functions, based on the facts presented by the COMPLAINANT in the complaint filed against PLAN RENTABLE; therefore, the probability of detection of the infractions was low;

115. As for the severity of the harm to the public interest and/or protected legal interest, in this case, it has not been possible to prove that the actions of PLAN RENTABLE in the commission of the infractions under analysis in this sanctioning procedure have caused harm to a determinable public interest;

116. However, it should be noted that according to the provisions of the REGULATION, as well as in the respective contracts, the administering companies have the obligation to include non-awarded associates with resolved contracts in quarterly draws so that they can benefit from the return of their contributions before the end of the group, as well as to resolve said contracts in accordance with the provisions established in the REGULATION and the aforementioned contracts;

117. Likewise, according to the provisions of the REGULATION, the RULES APPLICABLE TO COMPLAINTS AND CLAIMS and the contracts, the administering companies must have personnel responsible for attending to the claims of the Associates, whose maximum attention period is 30 calendar days from the date of submission of the respective claim; and, in accordance with the provisions of the REGULATION, they have the obligation to submit all information and/or documentation required by the SMV;

118. Thus, taking into account that the administering companies of collective funds have the obligation to act in strict compliance with the regulations applicable to them, such as the provisions established in the REGULATION, in the contracts and other applicable regulations in protection of the collective funds system, by transgressing said regulations, it affects the legal interest referring to the integrity of the market, that is, of the collective funds system; and in that sense it affects the trust of the associates or potential associates in the collective funds system. Likewise, the non-submission of the required information affects the supervision and control activities of the SMV, generating a violation of the legal interest referring to the protection of the associates and participants of the collective funds system;

119. Regarding the existence or not of intentionality in the conduct of the offender, it should be specified that in this administrative sanctioning procedure, no intentionality has been evidenced in the conduct of PLAN RENTABLE regarding the infractions corresponding to not considering the COMPLAINANT, in relation to CONTRACT 1, in the quarterly draws of resolved contracts for the return of contributions, to not resolving CONTRACT 2 and in that sense not considering the COMPLAINANT in the quarterly draws of resolved contracts for the return of contributions, as well as not providing a response to the claims submitted by the COMPLAINANT;

120. However, the lack of due diligence of PLAN RENTABLE towards the associates is demonstrated; since it is not admissible that a company like PLAN RENTABLE, which has been operating in the market for several years, can ignore compliance with essential rules under which the Collective Funds System operates and with the provisions of the collective funds administration contracts;

121. With regard to the infraction related to the failure to deliver documentation and/or information required from PLAN RENTABLE in response to the complaint filed, it must be noted that PLAN RENTABLE, despite having been repeatedly requested to provide the pending information and/or documentation, did not comply with said request in accordance with the details of the charge imputed, which would demonstrate PLAN RENTABLE's intent in the commission of the aforementioned infraction;

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

123. With regard 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 DE LA LPAG and in article 26°, literals a) and b) of the REGLAMENTO DE SANCIONES, it must be noted that PLAN RENTABLE has acknowledged its responsibility for the infractions incurred expressly and in writing, within the term granted for the submission of defenses, and in a precise, concise, clear and unconditional manner, without ambiguous or contradictory expressions;

124. On the other hand, it is considered that PLAN RENTABLE has not contributed to the clarification of the infractions, limiting itself only to the acknowledgment of the infraction. Likewise, it must be noted that none of the infractions have been remedied after their requirement or the initiation of the administrative sanctioning procedure;

125. For its part, it is not observed that in the present case any of the assumptions constituting exculpatory conditions of liability set forth in article 27 of the REGLAMENTO DE SANCIONES has been configured;

126. From the foregoing, it is concluded that PLAN RENTABLE has incurred in the commission of three (3) infractions classified as serious in Annex XIII, numeral 2, subparagraph 2.16 and one (1) infraction classified as serious in Annex I, numeral 2, subparagraph 2.1 of the REGLAMENTO DE SANCIONES, with respect to which it is appropriate to impose on PLAN RENTABLE a sanction corresponding to infractions classified as serious in accordance with article 38° of the REGLAMENTO DE SANCIONES; therefore, a fine greater than 25 UIT and up to 50 UIT would be applicable; however, to the extent that PLAN RENTABLE has acknowledged the commission of the four (4) infractions detailed above, it is appropriate to apply the provisions of article 26°, literals a), numeral 1) and b) of the REGLAMENTO DE SANCIONES, so the fine for said infractions must range between 12.5 UIT and 25 UIT; that is, 50% of the range established for serious infractions;

127. Likewise, taking into account the sanctioning criteria analyzed, and in application of the Principle of Reasonableness contemplated in article 248°, numeral 3 of the TUO DE LA LPAG, which states that the sanctions to be applied must be proportional to the non-compliance classified as an infraction, it must be considered that in the present case, there has been no impact on the market, it has not been proven that it obtained illicit benefit and it has been verified that the company is not a repeat offender with respect to the infractions evaluated; except for the case of the information requirement by the SMV, this Deputy Superintendence considers that it is appropriate to impose on PLAN RENTABLE a fine sanction applicable to minor infractions, in accordance with the provisions of article 39° of the REGLAMENTO DE SANCIONES;

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

RESOLVES:

Article 1.- To declare that Plan Rentable Perú S.A.C, formerly Empresa Administradora de Fondos Colectivos, has incurred in one (1) infraction classified as serious as established in Annex XIII, numeral 2, subparagraph 2.16 of the Reglamento de Sanciones, approved by SMV Resolution No. 035-2018-SMV/01, for having failed to comply with the provisions of the collective funds administration contract regarding not having considered the member in the quarterly draws for the return of their contributions.

Article 2.- To declare that Plan Rentable Perú S.A.C, formerly Empresa Administradora de Fondos Colectivos, has incurred in one (1) infraction classified as serious as established in Annex XIII, numeral 2, subparagraph 2.16 of the Reglamento de Sanciones, approved by SMV Resolution No. 035-2018-SMV/01, for having failed to comply with the provisions of the collective funds administration contract regarding having considered the contract terminated at the appropriate time and not having considered the member in the quarterly draws for the return of their contributions.

Article 3.- To declare that Plan Rentable Perú S.A.C, formerly Empresa Administradora de Fondos Colectivos, has incurred in one (1) infraction classified as serious as established in Annex XIII, numeral 2, subparagraph 2.16 of the Reglamento de Sanciones, approved by SMV Resolution No. 035-2018-SMV/01, for having failed to comply with the provisions of the collective funds administration contract regarding the legal term established to provide a response to claims.

Article 4.- To declare that Plan Rentable Perú S.A.C, formerly Empresa Administradora de Fondos Colectivos, has incurred in one (1) infraction classified as serious as established in Annex I, numeral 2, subparagraph 2.1 of the Reglamento de Sanciones, approved by SMV Resolution No. 035-2018-SMV/01, for having failed to deliver documentation and/or information required by the SMV in response to the complaint filed.

Article 5.- Sanction Plan Rentable Perú S.A.C, formerly Empresa Administradora de Fondos Colectivos, with a fine of 4 UIT in force at the time of effective payment of the fine for the commission of the infractions referred to in articles 1, 2, 3 and 4 of this resolution.

Article 6.- This resolution does not exhaust the administrative remedy, unless it is consented to, and may be challenged before the Superintendencia Adjunta de Supervisión Prudencial 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 7.- 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 SMV Institutional Page on the Single Digital Platform of the Peruvian State, 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 8.- Transcribe this resolution to Plan Rentable Perú S.A.C, formerly Empresa Administradora de Fondos Colectivos, and to the COMPLAINANT.

Register, communicate and publish.

Omar Gutiérrez Ochoa
Deputy Superintendent
Deputy Superintendency of Prudential Supervision