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. 011-2024-SMV/10

Lima, 07 March 2024

Summary: Interfondos S.A. Sociedad Administradora de Fondos is sanctioned with four (4) reprimands for having incurred four (4) infractions of a minor nature typified in Annex I, numeral 3, subparagraph 3.1 of the SANCTIONS REGULATION, for failing to submit eventual information within the term established by the regulations.

Administered entity
:
Interfondos S.A. Fund Management Company
Subject
:
Administrative sanctioning procedure
File No.:
2023025471

The Deputy Superintendent of Prudential Supervision

VIEWS:

Administrative file No. 2023025471, and Report No. 88-2024-SMV/10.3, issued by the General Intendancy of Prudential Compliance; as well as the defenses submitted by Interfondos S.A. Sociedad Administradora de Fondos; and,

CONSIDERING:

1. Pursuant to article 1 of Law No. 29782, Law for the Strengthening of Securities Market Supervision, 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. Within the supervision functions assigned to the SMV, an evaluation was made of timely compliance in the submission of eventual information by Interfondos S.A. Sociedad Administradora de Fondos (hereinafter, INTERFONDOS SAF);

3. As a result of said evaluation and under 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), by means of Official Letter No. 2568-2023-SMV/10.3, notified on 08 June 2023 (hereinafter, OFFICIAL LETTER OF CHARGES), charges were formulated against INTERFONDOS SAF for infractions of the Regulation of Mutual Funds for Investment in Securities and their Management Companies, approved by CONASEV Resolution No. 068-2010-EF/94.01.1 and its amendments (hereinafter, REGULATION) and the Regulation of Material Facts and Reserved Information, approved by SMV Resolution No. 005-2014-SMV/01 and its amendments (hereinafter, RHI), in force at the time of the commission of the facts, for failing to timely submit the following information:

a) The communication of the material fact referring to the excess investment by type of instrument in the mutual fund for investment in securities called "IF Enfoque Latam FMIV"1 that occurred on 16 March 2020. Said fact should have been communicated on 17 March 20202; however, it was communicated to the RPMV on 19 March 20203;

b) The communication of the material fact referring to the excess investment by type of instrument in the mutual fund for investment in securities called "IF Oportunidad Soles FMIV" that occurred on 16 March 2020. Said fact should have been communicated on 17 March 20204; however, it was communicated to the RPMV on 19 March 20205;

c) The communication of the material fact referring to the excess investment by type of instrument in the mutual fund for investment in securities called "IF Mediano Plazo Soles FMIV" that occurred on 17 March 2020. Said fact should have been communicated on 18 March 20206; however, it was communicated to the RPMV on 19 March 20207;

d) The communication of the material fact referring to the entry into force of the merger by absorption of the mutual fund for investment in securities called "IF Extra Conservador Soles FMIV" by the mutual fund called "IF Libre Disponibilidad Soles FMIV", which occurred on 22 July 2020. Said fact should have been communicated to the RPMV on the day of its occurrence; however, it was reported on 23 July 20208;

4. The aforementioned breaches are 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),

[1] Formerly mutual fund for investment in securities called "IF Cupon Latam FMIV".

[2] In accordance with the provisions of numerals 2, literal b), 3.1 and 5.5 of the Technical Specifications of the Information to be submitted by the Management Companies of Mutual Funds for Investment in Securities, approved by General Management Resolution No. 058-2010-EF/94.01.2 (hereinafter, TECHNICAL SPECIFICATIONS), the valuation file with the detail of instruments of a fund's investment portfolio is reported daily and the frequency of sending information is at the latest by 20:00 hours of the following business day, so if the referred excess occurred on 16 March 2020, INTERFONDOS SAF became aware on 17 March 2020.

[3] File No. 2020010740.

[4] Ibid. 2.

[5] File No. 2020010740.

[6] Ibid. 2.

[7] File No. 2020010740.

[8] File No. 2020024925.

which prescribes as an infraction of a minor nature: "Submit outside the established term, or do so incompletely, or, without observing the technical specifications approved by the SMV or without communicating the approval by the corresponding corporate body, to the SMV, to the Exchange, to the entity in charge of the centralized negotiation mechanism or to any other entity or subject of the securities market, the audited individual or consolidated financial information, the individual or consolidated interim financial statements, management report, special audit report, material facts and annual reports";

5. On 15 June 2023, INTERFONDOS SAF requested an extension for the submission of its arguments; which was granted by Official Letter No. 2736-2023-SMV/10.3, notified on 19 June 2023; the administrator submitting its arguments on 26 June 2023;

6. The charges formulated, as well as the arguments submitted by INTERFONDOS SAF, have been subject to evaluation by the Intendencia General de Cumplimiento Prudencial in Report No. 88-2024-SMV/10.3, which has been submitted to the knowledge of this Superintendencia Adjunta;

7. In observance of the Principle of Due Process contemplated both in article IV, paragraph 1, numeral 1.2 of the Preliminary Title, as well as in article 248, numeral 2, of the TUO DE LA LPAG, through Official Letter No. 256-2024-SMV/10, the administrative file to which this resolution refers was made available to INTERFONDOS SAF for its review;

II. ISSUES TO BE DETERMINED

8. In this administrative proceeding, in the opinion of this Superintendencia Adjunta, it corresponds to determine the following:

a. Whether INTERFONDOS SAF incurred or not in an infraction by having communicated the material fact referred to the excess of investment by type of instrument in the mutual investment fund in securities denominated “IF Enfoque Latam FMIV”, subject of charges, within the term established in article 9, numeral 9.1 of the RHI, in force at the date of occurrence of the facts;

b. Whether INTERFONDOS SAF incurred or not in an infraction by having communicated the material fact referred to the excess of investment by type of instrument in the mutual investment fund in securities denominated “IF Oportunidad Soles FMIV”, subject of charges, within the term established in article 9, numeral 9.1 of the RHI, in force at the date of occurrence of the facts;

c. Whether INTERFONDOS SAF incurred or not in an infraction by having communicated the material fact referred to the excess of investment by type of instrument in the mutual investment fund in securities denominated “IF Mediano Plazo Soles FMIV”, subject of charges, within the term established in article 9, numeral 9.1 of the RHI, in force at the date of occurrence of the facts;

d. Whether INTERFONDOS SAF incurred or not in an infraction by having communicated the material fact referred to the entry into force of the merger by absorption of the mutual investment fund in securities denominated “IF Extra Conservador Soles FMIV” by the mutual fund denominated “IF Libre Disponibilidad Soles FMIV”, subject of charges, within the term established in article 9, numeral 9.1 of the RHI, in force at the date of occurrence of the facts;

e. Whether or not it corresponds to impose a sanction on INTERFONDOS SAF;

III. ANALYSIS

3.1 Of the applicable regulations

9. Article 131 of the REGLAMENTO which establishes the following:

“Article 131.- Material facts The administering company is obliged to send all information regarding the mutual fund under its administration that qualifies as a material fact for investors, in accordance with the provisions of the regulations on the matter, as well as by the provisions issued by the SMV. All information referring to the administering company itself that complies with the assumption provided in the second paragraph of article 28 of the Law for the participants and potential investors of the mutual fund under its administration must also be sent as a material fact.

Additionally, the administering company is obliged to communicate as a material fact any information that could influence the behavior of the mutual fund, the quota value and, in general, any information that could influence the appreciation of an investor regarding the performance of the mutual fund.

The following qualify as Material Facts, in addition to the aforementioned:

(…)

h) Excesses of investments and participation.

(…)”

10. Likewise, article 9, numeral 9.1 of the RHI provides the following:

“Article 9.- Opportunity to report material facts 9.1. The Issuer must report its material fact as soon as such fact occurs or the Issuer becomes aware of it, and in no case beyond the day on which it has occurred or has been known. This information must be communicated to the SMV before any other person, entity or means of dissemination, and simultaneously when it corresponds to the Bolsa or the administering entity of the respective centralized negotiation mechanism. This, regardless of whether or not the information has been generated in the Issuer itself.

(…).”

11. On the other hand, Resolución de Intendencia General de Supervisión de Entidades No. 17-2020-SMV/10.2 of 20 February 2020 (hereinafter, RESOLUCIÓN), which resolved the merger by absorption of the mutual investment fund in securities denominated “IF Extra Conservador Soles FMIV” by the mutual fund denominated “IF Libre Disponibilidad Soles FMIV”, in its article 5 states:

“Article 5.- Interfondos S.A. Sociedad Administradora de Fondos must report as a material fact the date of entry into force of the merger of mutual funds indicated in article 1 above, in accordance with the provisions of article 131 of the Reglamento de Fondos Mutuos de Inversión en Valores y sus Sociedades Administradoras.”;

3.2. Of the charges formulated

12. Through the OFICIO DE CARGOS charges were formulated against INTERFONDOS SAF for not communicating, within the term established by the regulations, the eventual information indicated in the third recital of this resolution;

3.3. Of the arguments submitted

13. With regard to the infractions set forth in literals a), b) and c) of the third recital of this resolution, INTERFONDOS SAF states that said charges occurred during a moment of social upheaval throughout Peruvian territory, which had no precedent. It adds that on 15 March 2020, through a presidential message and through Supreme Decree No. 044-2020-PCM, Supreme Decree that declares a National State of Emergency due to the serious circumstances affecting the life of the Nation as a consequence of the COVID-19 outbreak, it was ordered, among others:

"Article 1.- Declaration of National State of Emergency Declare a National State of Emergency for a period of fifteen (15) calendar days, and order mandatory social isolation (quarantine), due to the serious circumstances affecting the life of the Nation as a consequence of the COVID-19 outbreak." (Emphasis by INTERFONDOS SAF);

14. In this regard, the management company states that the National State of Emergency was declared and mandatory social isolation (quarantine) was ordered nationwide, thereby suspending various constitutional rights as indicated in article 3 of the aforementioned Supreme Decree:

"Article 3.- Suspension of the exercise of Constitutional Rights During the present National State of Emergency, the exercise of constitutional rights relating to personal liberty and security, the inviolability of the home, and freedom of assembly and of movement in the territory covered in paragraphs 9, 11 and 12 of article 2 and in paragraph 24, subparagraph f of the same article of the Political Constitution of Peru is restricted." (Emphasis by INTERFONDOS SAF);

15. INTERFONDOS SAF states that in this context of suspension of rights, such as freedom of assembly and movement, it had to, as a company and as citizens, comply with the order of the Central Government, and therefore, as of 16 March 2020, its staff did not attend the offices. Likewise, it specifies that although the decree itself indicated that circulation on public roads was only permitted for the provision of certain services and goods, among which were financial, insurance and pension entities, as well as complementary and related services, there was no certainty as to whether this definition applied to fund management companies, as is its case, and therefore it made the decision not to expose its staff to sanctions and to the virus itself, and to restrict access to its offices;

16. The management company states that together with the issuance of Supreme Decree No. 044-2020-PCM, on the same 15 March 2020, Urgency Decree No. 026-2020 was issued, an Urgency Decree that establishes various exceptional and temporary measures to prevent the spread of the coronavirus (COVID-19) in the national territory, which in its second Final Complementary Provision stated verbatim:

"Second.- Measures for the Executive Branch and suspension of deadlines (...) 2. Exceptionally, declare the suspension for thirty (30) business days counted from the day following the publication of this Urgency Decree, of the computation of processing deadlines for administrative procedures subject to positive and negative silence that are in process at the entry into force of this rule, with the exception of those that have a pronouncement by the authority pending notification to the administered parties. The aforementioned deadline may be extended by Supreme Decree endorsed by the President of the Council of Ministers." (Emphasis by INTERFONDOS SAF);

17. INTERFONDOS SAF states that with the issuance of the indicated rule, which suspended the deadlines of various procedures, and in addition to Supreme Decree No. 044-2020-PCM, which restricted the right of movement, right of assembly and services in general, it was considered that the issuance and reporting of material events were suspended, since there was no clarity on whether the sending of material events was mandatory or not;

18. It adds that only on 19 March 2020, the SMV issued a communication entitled "Frequently asked questions related to the work of the SMV as a consequence of the Declaration of Emergency declared by the Executive Branch", in which numeral 2 stated:

"2) Has the submission of material events been suspended? No, the obligation to send through MVNET remains. In the event of any inconvenience in the sending system, the SMV has enabled the following line: 6106300 extension 7062 from 8:00 to 22:00 and the following email: atencionsmv@smv.gob.pe";

19. In this context, INTERFONDOS SAF states that the three (3) material events charged were generated regarding excess investment in the fund "IF Enfoque Latam FMIV", which occurred on 16 March 2020; (ii) the material event regarding excess investment in the fund "IF Oportunidad Soles FMIV", occurred on the same 16 March 2020; and, (iii) the material event for excess investment regarding the fund "IF mediano Plazo Soles FMIV", occurred on 17 March 2020, all of which were reported on 19 March 2020, as soon as it became aware of the SMV communication, which clarified the situation of material events. Likewise, it highlights that the SMV had to clarify this point so that, in an exceptional situation and of generalized confusion, it could be determined whether the obligation to submit material events remained or was suspended;

20. For the foregoing, given the scenario presented, the management company considers that it is subject to more than one exemption from liability indicated in article 27 of the SANCTIONS REGULATIONS and in article 257 of Law No. 27444, which states the following:

"Article 257.- Exemptions and mitigating circumstances of liability for infractions 1.- The following constitute conditions exempting liability for infractions:

a) Unforeseeable circumstances or force majeure duly proven.

b) Acting in compliance with a legal duty or the legitimate exercise of the right of defense.

c) Mental incapacity duly proven by the competent authority, provided that 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 rectification 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.

(…)”

21. In this regard, INTERFONDOS SAF considers that it is specifically covered by the exemptions from liability for duly proven fortuitous event or force majeure, acting in compliance with a legal duty and mandatory order of the competent authority, as it was facing a situation of mandatory social isolation (quarantine) as a consequence of the COVID-19 virus, ordered by a Supreme Decree ordering the restriction of economic activities and limiting the right of transit and freedom, and issuing an Urgency Decree suspending the terms of all procedures. Likewise, it highlights that as soon as the SMV issued a communication (a document without legal rank) indicating that the submission of material events persisted, it proceeded immediately to comply and submitted the material events;

22. For the foregoing, INTERFONDOS SAF considers that it falls within the exemptions from liability in the referred three (3) infractions, for the arguments set forth;

23. Regarding the infraction set forth in literal d) of the third recital of this resolution, INTERFONDOS SAF acknowledges its omission in the timely submission of the material event referring to the entry into force of the merger by absorption of the mutual investment fund in securities called “IF Extra Conservador Soles FMIV” by the mutual fund called “IF Libre Disponibilidad Soles FMIV”, which occurred on 22 July 2020. Likewise, it specifies that in this event (the merger at the operational level) it had to be carried out in the early hours of the morning; that is, at the end of 22 July and the beginning of 23 July, since operationally it was necessary to wait to close the day;

24. In addition to the acknowledgment of the fault, INTERFONDOS SAF requests that when evaluating the imposition of the sanction, the mitigating circumstances of liability established in article 26 of the SANCTIONS REGULATION be considered, taking into account the following;

25. The express acknowledgment made regarding the non-compliance incurred, which has been made within the term granted for the submission of the defense;

26. The contribution to the clarification of the infraction. In this regard, the management company states that it is important to take into account that in the submission of the imputed material event it has not questioned its lateness; moreover, it regularized its submission at a later date, which allowed it to be noticed without delay by the SMV. Likewise, it highlights that originally, by involuntary error, the material event was reported on 23 July 2020, which hours later was corrected with the correct date; and that the transfer of all the merger information occurred in the early hours of the morning (between 22 July and 23 July 2020), that is, for practical purposes, the merger can only occur once the day has ended, so it was necessary to work until late at night. Likewise, it maintains that on those dates they were still under mobility restrictions as a result of the mandatory social distancing measures taken by the Central Government as a consequence of COVID-19;

27. Likewise, the rectification made after its requirement or the initiation of the administrative sanctioning procedure. On this topic, INTERFONDOS SAF points out that it can be observed that the submission of the referred material event was rectified prior to the initiation of the sanctioning procedure and without any requirement for compliance with this obligation by the SMV;

28. Additionally, the management company states that the involuntary error of sending the material event on time has not caused any harm to the securities market;

29. Likewise, INTERFONDOS SAF states that it is important to take into account that since the beginning of 2020 it has proceeded to carry out all necessary actions to strengthen the internal controls it has to avoid submissions of material events out of time; for this purpose, work was done on: i) Map of Regulatory Obligations, where it gathers all the information obligations to the SMV and clearly establishes the information responsibilities that each of its areas has. Likewise, they gather the different processes followed before the SMV for the registration of mutual funds and investment funds, modification of the Annexes or Prospectuses of the mutual funds or investment funds, merger of funds, among others: and ii) Training Plan for all personnel. In this regard, INTERFONDOS SAF specifies that during various months in recent years, based on the Map of Regulatory Obligations, it proceeded to train all its personnel by areas;

30. The management company maintains that the actions described sought to correctly assign those responsible by areas for each regulatory obligation, reduce the risk of non-compliances, as well as raise awareness among personnel about the infractions and fines that may arise from omissions or delays in the delivery of information;

3.4 Evaluation of the defenses

31. This analysis must begin by stating that INTERFONDOS SAF is a company supervised by the SMV, with authorization to operate granted by Resolution CONASEV No. 163-95-EF/94.10 of 25 April 1995, which is why it is aware of the applicable regulations for the submission of periodic and event-driven information; and, consequently, it is obliged to comply with the provisions of said regulations and therefore to act diligently in the timely submission of said information;

i. Regarding the communication of the material events described in items (a), (b) and (c) of the third recital of this resolution

32. INTERFONDOS SAF states that the aforementioned material events occurred during a time of social upheaval in the country and notes that by Supreme Decree No. 044-2020-PCM, a National State of Emergency was declared and mandatory social isolation (quarantine) was ordered nationwide, suspending various constitutional rights such as freedom of assembly and movement; and, therefore, in compliance with the provisions of the Central Government, on 16 March 2020 its staff did not attend its offices. It also specifies that although exceptions were established for companies providing certain services, such as financial, insurance and pension services, it was not certain whether this definition covered fund management companies, so it decided not to expose its workers;

33. Additionally, INTERFONDOS SAF maintains that, in accordance with the provisions of the Second Final Complementary Provision of Urgency Decree No. 026-2020, which suspended the deadlines of various procedures, together with the limitations established by Supreme Decree No. 044-2020-PCM, it considered that the issuance of material events was suspended, since there was no clarity on whether their submission was mandatory or not;

34. It adds that, subsequently, on 19 March 2020, the SMV sent a communication entitled “Frequently asked questions related to the work of the SMV as a result of the Declaration of Emergency declared by the Executive Branch”, whose paragraph 2 stated that the obligation to communicate material events through the MVNet System remained, which is why it communicated the material events described in items (a), (b) and (c) of the third recital of this resolution (which occurred on 16 and 17 March 2020), as soon as the SMV issued the aforementioned communication;

35. Based on the foregoing, INTERFONDOS SAF considers that it falls under the exemptions from liability for duly proven fortuitous event and force majeure and for acting in compliance with a legal duty or mandatory order of the competent authority, as it was in a situation of mandatory social isolation as a result of COVID-19;

36. In this regard, it should be noted that upon obtaining authorization to operate from the SMV, the management company acquires the obligation to comply with the provisions issued by the SMV, insofar as they are applicable to it, such as, among others, the rules governing the submission of event-driven information to the SMV, as they are under the scope of supervision of the SMV;

37. According to article 131 of the REGULATIONS, management companies are obliged to submit all information regarding the mutual funds under their management that qualifies as material events. In this regard, the aforementioned article of the REGULATIONS classifies as material events, among others, investment and participation excesses. In accordance with the foregoing, article 9, paragraph 9.1 of the RHI provides that material events must be communicated as soon as the event occurs or they become aware of it, and in no case beyond the day on which it occurred or became known;

38. From the foregoing, it follows that it is the obligation of every fund management company supervised by the SMV to submit the event-driven information required by the regulations within the established deadlines, that is, in a timely manner;

39. In that sense, although Supreme Decree No. 044-2020-PCM declared a National State of Emergency, by which restrictive measures were established in response to the COVID-19 outbreak in the country, those circumstances did not exempt INTERFONDOS SAF from complying with its obligation to timely communicate the material events corresponding to the funds it manages, within the deadline established in article 9, paragraph 9.1 of the RHI, because the trading of securities on the stock exchange floor of the Lima Stock Exchange remained during the period of the National State of Emergency, and this means that relevant information must be provided to the market for the proper price formation of the securities traded in said centralized trading mechanism. Likewise, it should be noted that these securities may be traded off-exchange or, in the case of mutual funds, subscribed or redeemed. All of this substantiates the enforceability of continuing to report material events by the companies that have their securities registered in the RPMV9 ;

40. On this point, it is appropriate to highlight that, although the management company alleges that there was no clarity on whether the communication of material events was mandatory, and that due to the restrictive measures established in Supreme Decree No. 044-2020-PCM its staff did not attend its offices, it is observed that INTERFONDOS SAF submitted a letter sent through the MVNet System (File No. 2020038075) on the first day of the National State of Emergency, on 16 March 2020 at 12:48 hours, communicating material events corresponding to investment and/or participation excesses (by issuer, by type of instrument and by risk category) corresponding to mutual funds investing in securities under its management, in accordance with the provisions of article 131 of the REGULATION. In that sense, it is noted that INTERFONDOS SAF was indeed certain about the mandatory nature of communicating material events during the National State of Emergency;

41. Likewise, from the review of the RPMV it can be seen that on 16 and 17 March 2020, other fund management companies complied with reporting the investment and/or participation excesses of the funds under

[9] As stated in numeral 3 of the communiqué “FREQUENTLY ASKED QUESTIONS SUBMITTED TO THE SMV AS A CONSEQUENCE OF THE DECLARATION OF THE NATIONAL STATE OF EMERGENCY. Updated as of 31 March 2020”.

their management through the MVNet System (Files No. 2020010502 and 2020010467);

42. On the other hand, regarding the claim by the management company that the Second Final Complementary Provision of Urgency Decree No. 026-2020 would have suspended the deadline for submitting material events, it must be specified that said provision established a suspension of the processing period for administrative procedures subject to positive and negative silence that are in process at the entry into force of said norm, but it does not provide for a suspension of the deadline for the obligation to communicate material events to the SMV, established in article 9, numeral 9.1 of the RHI;

43. According to the foregoing, it is observed that although INTERFONDOS SAF alleges that the beginning of the National State of Emergency and compliance with the imposed restrictive measures would constitute the exemptions from liability recognized in literals a) and b) of article 257 of the TUO OF THE LPAG, the same management company during the beginning of the National State of Emergency and while the aforementioned restrictive measures were in force complied with communicating other material events to the RPMV within the deadline established in article 9 of the RHI; therefore, what INTERFONDOS SAF alleges on this point is contradictory; and, therefore, lacks foundation;

44. From the foregoing it follows that INTERFONDOS SAF submitted the eventual information described in literals a), b) and c) of the third recital of this resolution, outside the deadline indicated in article 9 of the RHI:

Literals (third recital)	Date of occurrence or approval	Submission deadline	Date of submission	Delay (days)
a)	16/03/2020	17/03/2020	19/03/2020	2
b)	16/03/2020	17/03/2020	19/03/2020	2
c)	17/03/2020	18/03/2020	19/03/2020	1

;

45. In view of the foregoing, it is concluded that INTERFONDOS SAF has not disproved the charges imputed in this regard;

ii. On the communication of the material event described in literal d) of the third recital of this resolution

46. INTERFONDOS SAF has expressly acknowledged its responsibility for the commission of the infraction described in literal d) of the third recital of this resolution. In this regard, it must be indicated that said acknowledgment will be taken into account when evaluating the sanction to be imposed;

47. Without prejudice to the foregoing, and as indicated above, INTERFONDOS SAF is a company supervised by the SMV, with operating authorization; and, consequently, with knowledge of the applicable regulations for the submission of eventual information, for which it had the obligation to act diligently in communicating the aforementioned information. However, this did not occur, since said lack of diligence led INTERFONDOS SAF to incur the infraction under analysis;

48. Indeed, in the present case, it is verified that INTERFONDOS SAF submitted the communication of the material event referring to the entry into force of the merger by absorption of the mutual fund investing in securities called “IF Extra Conservador Soles FMIV” by the mutual fund called “IF Libre Disponibilidad Soles FMIV”, which occurred on 22 July 2020, outside the deadline indicated in article 9 of the RHI. Said event should have been communicated to the RPMV on the day of its occurrence; however, it was reported on 23 July 2020, with a (1) day delay;

49. In view of the foregoing, it is concluded that INTERFONDOS SAF has not disproved the charges imputed;

50. Consequently, taking into account the considerations indicated above, it is noted that INTERFONDOS SAF has incurred four (4) infractions classified as minor, typified in Annex I, numeral 3, subsection 3.1, of the SANCTIONS REGULATION, in force at the date of commission of the facts, according to which it constitutes an infraction: “Submit outside the established deadline, or do so incompletely, or, without observing the technical specifications approved by the SMV or without communicating the approval by the corresponding corporate body, to the SMV, to the Exchange, to the entity in charge of the centralized negotiation mechanism or to any other entity or subject of the securities market, the audited individual or consolidated financial information, the individual or consolidated interim financial statements, management report, special audit report, material events and annual reports”;

IV. EVALUATION OF THE SANCTION

51. From the foregoing, it has been determined that INTERFONDOS SAF has incurred four (4) infractions of a minor nature, in accordance with the provisions of article 35 of the REGLAMENTO DE SANCIONES; the commission of a minor infraction is subject to a sanction corresponding to a warning or a fine of no less than one (1) and up to twenty-five (25) Tax Units (UIT);

52. Considering that in the present case infractions related to the breach of deadlines for the submission of periodic and occasional information are being evaluated, the last paragraph of article 6 of the REGLAMENTO DE SANCIONES, in force at the time of the commission of the facts, must be taken into account, which establishes that: “(…) For the determination of the sanction for non-compliance with the rules that regulate the timeliness in the submission of periodic or occasional information of the issuer with securities registered in the Registro Público del Mercado de Valores, of legal entities registered in the Registries under the charge of the SMV, and other persons obliged to submit such information, the Board of Directors of the SMV sets the sanction parameters that develop and specify the sanction criteria established in the aforementioned laws for their better and uniform application”;

53. In this regard, the “Criterios Aplicables al Procedimiento Administrativo Sancionador por Incumplimiento de las Normas que regulan la Remisión de Información Periódica o Eventual”, approved by Resolución SMV N° 006-2012-SMV/01 and its amendments (hereinafter, CRITERIOS DE SANCIÓN), must be taken into account, in whose subsection 1 it establishes that the purpose of said criteria is “to establish the sanction parameters that within the framework of the Ley del Procedimiento Administrativo General, the Ley del Mercado de Valores and the Decreto Ley sobre Empresas Administradoras de Fondos Colectivos allow sanctions to be applied to issuers with securities registered in the Registro Público del Mercado de Valores, legal entities registered in the Registries under the charge of the SMV, and other persons obliged to submit periodic or occasional information for non-compliances in the timely submission of said information that are classified as minor infractions in the annexes of the Reglamento de Sanciones, approved by Resolución CONASEV Nº 055-2001-EF-94.10. The criteria developed below apply exclusively to non-compliances with the rules that regulate the submission of periodic or occasional information and do not apply extensively to the other cases investigated by this Superintendency”;

54. Therefore, to evaluate the sanction that must be imposed on INTERFONDOS SAF for the non-compliances with the deadline for the submission of occasional information described in the third recital of this resolution, the CRITERIOS DE SANCIÓN must be applied;

55. Likewise, it must be mentioned that the application of said criteria observes the Principle of Proportionality established in the TUO DE LA LPAG, since it allows determining in a predictable manner for the administered party the sanctions to be imposed on securities issuers, on persons registered in the RPMV for non-compliances with the deadlines for submitting information to which they are obliged by the rules and for omission in the submission of information requested by the SMV;

56. In order to determine the sanction corresponding to the infractions under analysis, and in accordance with the provisions of subsection 3.2 of the CRITERIOS DE SANCIÓN, the evaluation criteria set forth in article 348 of the LMV, in article 248, numeral 3, of the TUO DE LA LPAG10, in article 25 of the REGLAMENTO DE SANCIONES, as well as in subsection 4.1 of the CRITERIOS DE SANCIÓN, whose observance is mandatory, must be taken into account. Within this framework, the evaluation of the sanction must consider: a) The seriousness of the damage to the public interest and/or protected legal interest; b) The economic harm caused and the impact on the market; c) Sanction history; d) Recidivism; e) The circumstances of the commission of the infraction; f) The illicit benefit resulting from the commission of the infraction; g) The existence or not of intent in the conduct of the offender; and, h) The probability of detection of the infraction;

57. Regarding the seriousness of the damage to the public interest and/or protected legal interest, it must be taken into consideration that in the case of the submission of periodic or occasional information, any non-compliance with the regulations on its timely submission, that is, the failure to observe the deadlines established to submit said information, affects the transparency of the securities market, since this safeguards the right of investors (actual and potential) and the general public to access said information in a timely manner in order to adopt investment decisions or carry out a certain evaluation; likewise, it affects the SMV in the implementation of its supervision and control activities that seek to protect the integrity of the market;

58. Therefore, it can be stated that INTERFONDOS SAF has affected the protected legal interest that is market transparency, given that

[10] Article 230, numeral 3 of Ley N° 27444, Ley del Procedimiento Administrativo General (hereinafter, LPAG).

it submitted late the communication of the four (4) material events analyzed in this resolution;

59. With regard to the economic harm caused and the impact on the market, it has not been evidenced that the infractions incurred by INTERFONDOS SAF have produced a concrete quantifiable harm in the market, that is, it has not been determined that one or more investors have been concretely affected or caused economic damage, and therefore it has also not been evidenced that there has been an impact on the market;

60. Likewise, regarding the sanction history, it must be noted that in accordance with the SANCTION CRITERIA and with Article 25, literal a) of the SANCTION REGULATIONS, final sanctions imposed by the SMV within the period of four (4) years prior to the commission of the infractions to be sanctioned constitute a history, and the commission of the same infraction in the year prior to the infraction to be sanctioned is not considered a history;

61. In this regard, from the review carried out in said period, it has been verified that INTERFONDOS SAF presents the following sanction history in the four (4) years prior to the commission of the infractions set forth in the third recital of this resolution:

No.	Resolution	Resolved	Finality
i	Deputy Superintendency Resolution SMV No. 037-2016-SMV/1011	INTERFONDOS SAF is sanctioned with a warning, for having incurred one (01) infraction of a serious nature typified in Annex VII, numeral 2, subparagraph 2.5, of the Sanction Regulations, approved by CONASEV Resolution No. 055-2001-EF/94.10 (hereinafter, FORMER SANCTION REGULATIONS) for not constituting the guarantees or not replacing them, in the form, amount and conditions determined for each case by the SMV.	20/09/2016
ii	Deputy Superintendency Resolution SMV No. 062-2017-SMV/1012	INTERFONDOS SAF is sanctioned with a fine of 1.2 UIT, equivalent to S/ 4 560,00 (Four thousand five hundred sixty and 00/100 Soles), for having incurred an infraction of a minor nature typified in Annex I, numeral 3, subparagraph 3.1 of the FORMER SANCTION REGULATIONS for having submitted eventual information referring to facts of importance outside the period established by the regulations. The charge referring to the timeliness in the communication of the fact of importance of 03 December 2014 is archived.	23/01/2017
iii	Deputy Superintendency Resolution SMV No. 050-2018-SMV/1013	INTERFONDOS SAF is sanctioned with one (01) warning and a fine of 2.448 UIT equivalent to S/ 9 669, 60 (Nine Thousand Six Hundred Sixty-Nine and 60/100 Soles), for having incurred two (02) infractions of a minor nature typified in Annex I, numeral 3, subparagraph 3.1 of the FORMER SANCTION REGULATIONS, for not having complied with submitting eventual information within the period established in the regulations.	12/11/2018
iv	Deputy Superintendency Resolution SMV No. 035-2019-SMV/1014	INTERFONDOS SAF is sanctioned with eight (8) UIT equivalent to S/ 30 800,00 (Thirty thousand eight hundred and 00/100 Soles) for having incurred two (02) serious infractions typified in Annex VII, literal A, numeral 2, subparagraph 2.5 and Annex XIX, numeral 2, subparagraph 2.12, of the FORMER SANCTION REGULATIONS for not complying with observing the provisions of the Mutual Funds Regulations	10/01/2020

[11] Notified on 29 August 2016.

[12] Notified on 30 December 2016.

[13] Notified on 17 October 2018.

[14] Notified on 12 July 2019, subsequently was subject to challenge by INTERFONDOS SAF (appeal), which was declared unfounded by Superintendent Resolution No. 004-2020-SMV/02.

No.	Resolution	Resolved	Finality
		of Investment in Securities and their Management Companies regarding the subscription of participations and for not observing the Rules for the Prevention of Money Laundering and Financing of Terrorism regarding the timely submission of the Annual Special Audit Plan, respectively.

(*) Literals of the third recital of the resolution.

62. With regard to recidivism for the commission of the same infraction, the final sanction imposed by the SMV within the period 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 INTERFONDOS SAF does not present sanctions within the aforementioned period, for the commission of the same infractions subject of analysis in this administrative sanctioning procedure, so recidivism is not configured;

63. As for the circumstances of the commission of the infractions, it must be mentioned that INTERFONDOS SAF, in its capacity as a company supervised by the SMV, knows the rules that regulate the securities market and, in that sense, the rules that oblige it to submit to the SMV periodic and eventual information within the periods established therein. However, INTERFONDOS SAF submitted late the communication corresponding to the facts of importance set forth in literals a), b), c) and d) of the third recital of this resolution, under evaluation in this sanctioning procedure;

64. Regarding the illicit benefit resulting from the commission of the infractions, it must be noted that it has not been proven that INTERFONDOS SAF has obtained a benefit that bears a direct relationship with the infractions subject of analysis in this administrative sanctioning procedure;

65. With respect to the existence or not of intentionality in the conduct of the offender, it has not been evidenced that INTERFONDOS SAF has acted with intentionality in the commission of the infractions;

66. In relation to the probability of detection of the infractions, it must be indicated that in this case the infractions incurred by INTERFONDOS SAF were evidenced as a result of the supervision and control activities carried out by the SMV regarding compliance with the timely submission of periodic and eventual information, in accordance with the provisions of the applicable regulations; therefore, the probability of detection was high;

67. Continuing with the analysis, it corresponds to determine the sanction to be imposed on INTERFONDOS SAF. In that regard, the SANCTION CRITERIA establish that a warning sanction may be imposed when the following guidelines set forth in subsection 4.2, item (ii) of said criteria are concurrently met: (i) the impact on market transparency is minimal; (ii) the infringement committed has not caused concrete harm to investors or associates; (iii) the infringing party has no prior record or, if it does, they are infringements classified as minor offenses imposed within the four (4) years prior to the commission of the infringement being assessed; (iv) the infringing party has not obtained a benefit from its unlawful conduct; and, (v) it has not been proven that the infringer acted with intent in committing the infringement;

68. Likewise, said SANCTION CRITERIA establish that if a warning sanction is not applicable, a fine sanction must be imposed;

69. On the other hand, by SMV Resolution No. 007-2023-SMV/01, the Gradualness Regime for Sanctions for late submission of financial information, annual report and material events15 (hereinafter, GRADUALNESS REGIME) was approved, which entered into force on 1 January 2024;

70. However, in accordance with the principle of non-retroactivity, contained in item 5 of Article 248 of the TUO DE LA LPAG16, the sanctioning provisions in force at the time the infringement was incurred apply, unless subsequent rules are more favorable;

71. Considering the aforementioned principle, the SANCTION CRITERIA (currently repealed) should be applied to this case, unless the GRADUALNESS REGIME17 contains provisions more favorable to INTERFONDOS SAF;

72. As regards the guidelines for the application of the warning sanction, Article 6, item 6.1, of the GRADUALNESS REGIME18 prescribes that a warning sanction may be applied when the following assumptions are concurrently met: a. When the impact on market transparency is minimal. This statement is linked to the criterion of the seriousness of the harm to the public interest and/or the protected legal interest; b. The infringement committed has not caused concrete harm to investors or associates; c. The infringing party has no prior record or, if it does, they are sanctions corresponding to minor infringements imposed by the SMV that became final within the four (4) years prior to the commission of the infringement being assessed; d. the infringing party is not a repeat offender; e. The infringer has not obtained benefits from its infringement

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

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

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

[18] “Article 6.- GUIDELINES FOR THE APPLICATION OF THE GRADUALNESS REGIME 6.1 CONSIDERATIONS FOR THE APPLICATION OF THE WARNING SANCTION The warning sanction may be applied when the following assumptions are concurrently met: a. When the impact on market transparency is minimal. This statement is linked to the criterion of the seriousness of the harm to the public interest and/or the protected legal interest; b. The infringement committed has not caused concrete harm to investors or associates; c. The infringing party has no prior record or, if it does, they are sanctions corresponding to minor infringements imposed by the SMV that became final within the four (4) years prior to the commission of the infringement being assessed; d. The infringing party is not a repeat offender; e. The infringer has not obtained benefits from its administrative infringement; and, f. It has not been proven that the infringer acted with intent in committing the infringement.”

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"

administrative; and, f. It has not been proven that the infringer acted with intent in committing the infringement;

73. In this regard, it should be noted that the GRADUALNESS REGIME establishes as one of the conditions for the application of a warning fine that, even if the infringing party has a prior record, these are sanctions corresponding to minor infringements imposed by the SMV that became final within the four (4) years prior to the commission of the infringement under assessment. Consequently, the provisions of article 6, numeral 6.1, of the GRADUALITY REGIME are applicable to the infractions described in literals a), b), c) and d) of the third recital of this resolution, insofar as it is more favorable, with respect to the cases established for imposing a warning sanction;

74. However, as can be seen from the evaluation carried out in this resolution, it has been verified that INTERFONDOS SAF has a record, which consists of sanctions corresponding to minor infractions (warning or fine of no less than 01 and 25 UIT) that have become final in the four (4) years prior to the commission of the infractions being evaluated;

75. Likewise, it has not been proven that the infractions committed have caused concrete harm to investors, nor is it observed that INTERFONDOS SAF is a repeat offender in the commission of the infractions under analysis, nor is it evident that the investment fund management company has obtained a benefit from its illegal conduct, nor has it been proven that it acted with intent in the commission of the infractions;

76. As regards the condition referring to the impact on market transparency being minimal (linked to the severity of the harm to the public interest and/or the protected legal interest), it should be noted, in principle and as mentioned in the evaluation of the sanction criteria, that any non-compliance with the regulations regarding the deadlines established for submitting eventual information affects the transparency of the securities market (protected legal interest), especially if this non-compliance is prolonged over time; since such information is relevant not only for the investors and shareholders of the management company, but for the market in general. In this regard, it is the obligation of every management company to submit the eventual information required by the regulations within the established deadlines, that is, in a timely manner;

77. Nevertheless, it should be noted that the material events described in literals a), b) of the third recital of this resolution, although they were submitted two (2) days late, as well as the events described in literals c) and d) of the third recital of this resolution were reported one (1) day late, it can be seen that during the period in which INTERFONDOS SAF did not report said material events to the SMV, the degree of impact on market transparency has been minimal. Without prejudice to the fact that in similar cases, a greater delay in submitting the aforementioned information may determine a greater degree of impact on the transparency of the securities market;

78. In this regard, as a result of the evaluation carried out, it is observed that INTERFONDOS SAF complies with the conditions established in article 6, numeral 6.1, of the GRADUALITY REGIME. Consequently, a warning sanction must be imposed on INTERFONDOS SAF for each of the infractions under analysis;

79. On the other hand, it should be noted that in this proceeding the existence of aggravating circumstances contemplated in subsection 4.2, item (vi) of the aforementioned SANCTION CRITERIA or of the aggravating circumstances contemplated in article 6, item 6.3, subsection 6.3.2, of the GRADUALITY REGIME19 has not been determined;

80. In addition to the foregoing, it is appropriate to analyze the exempting and mitigating circumstances of liability established in article 257 of the TUO DE LA LPAG20 as well as the mitigating and exempting conditions of liability established in articles 26 and 27 of the SANCTION REGULATIONS;

81. In this regard, and in accordance with what has been developed above, it is not observed that any of the assumptions constituting exempting conditions of liability has been configured in this case. Likewise, with respect to what was alleged by INTERFONDOS SAF regarding the fact that the material fact described in literal d) of the third recital of this resolution was remedied prior to the initiation of the sanctioning procedure and without any request from the SMV, it is appropriate to recall that the late or incomplete presentation; or the non-presentation of material facts, financial information and annual reports, constitutes one of the assumptions in which voluntary remediation does not apply as an exempting circumstance of liability, in accordance with the provisions of article 28, literal c), of the SANCTION REGULATIONS;

82. As regards the mitigating conditions of liability, with respect to the voluntary declaration of the commission of the infractions and the contribution of the offender to their clarification, established in article 257, item 2, subsection a) of the TUO DE LA LPAG and in article 26, literals a) and b) of the SANCTION REGULATIONS, it must be noted that INTERFONDOS SAF has acknowledged its responsibility only for the infraction indicated in literal d) of the third recital of this resolution, expressly and in writing, within the term granted for the presentation of defenses, and in a precise, concise, clear,

[19] “6.3 AGGRAVATING CIRCUMSTANCES (…) 6.3.2 In the event that the existence of any of the following elements is proven: (i) serious impairment to the protected legal interests; (ii) concrete damages to investors or associates; (iii) obtaining an undue benefit; (iv) intentionality in the commission of the infraction; the amounts resulting from the application of the provisions set forth in the preceding points may be increased up to the maximum permitted by the corresponding law, taking into account the principles of reasonableness and proportionality and the provisions of article 4.”

[20] “Article 257.- Exemptions and mitigating circumstances of liability for infractions 1.- The following constitute conditions exempting liability for infractions: a) Duly proven fortuitous event or 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 235. 2.- The following constitute conditions mitigating liability for infractions: a) If, once an administrative sanctioning procedure has been initiated, the offender expressly and in writing acknowledges their 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.”

express and unconditional, without ambiguous or contradictory expressions, as well as has contributed to its clarification;

83. In accordance with the provisions of article 32°, numeral 17, of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF and its amendments, as well as the SANCTION CRITERIA and its amendment and the GRADUALITY REGIME;

RESOLVES:

Article 1.- Declare that Interfondos S.A. Sociedad Administradora de Fondos has incurred one (1) infraction of a minor nature classified in Annex I, numeral 3, subsection 3.1 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for not having timely communicated the material fact referring to the excess investment by type of instrument in the mutual investment fund in securities called “IF Enfoque Latam FMIV”.

Article 2.- Declare that Interfondos S.A. Sociedad Administradora de Fondos has incurred one (1) infraction of a minor nature classified in Annex I, numeral 3, subsection 3.1 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for not having timely communicated the material fact referring to the excess investment by type of instrument in the mutual investment fund in securities called “IF Oportunidad Soles FMIV”.

Article 3.- Declare that Interfondos S.A. Sociedad Administradora de Fondos has incurred one (1) infraction of a minor nature classified in Annex I, numeral 3, subsection 3.1 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for not having timely communicated the material fact referring to the excess investment by type of instrument in the mutual investment fund in securities called “IF Mediano Plazo Soles FMIV”.

Article 4.- Declare that Interfondos S.A. Sociedad Administradora de Fondos has incurred one (1) infraction of a minor nature classified in Annex I, numeral 3, subsection 3.1 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for not having timely communicated the material fact referring to the entry into force of the merger by absorption of the mutual investment fund in securities called “IF Extra Conservador Soles FMIV” by the mutual fund called “IF Libre Disponibilidad Soles FMIV”.

Article 5.- Sanction Interfondos S.A. Sociedad Administradora de Fondos with four (4) warnings, for the provisions of article 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 Deputy Superintendency of Prudential Supervision by filing a reconsideration appeal, submitted to 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 subject to challenge by means of a reconsideration appeal within fifteen (15) business days of notification and becomes consented to, 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 Interfondos S.A. Sociedad Administradora de Fondos.

Omar Gutiérrez Ochoa
Deputy Superintendent
Deputy Superintendency of Prudential Supervision