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. 030-2024-SMV/10

Lima, 11 June 2024

Summary: The reconsideration appeal filed by Autoplan Empresa Administradora de Fondos Colectivos S.A. against Deputy Superintendency Resolution SMV No. 040-2023-SMV/10 is declared unfounded.

Administered entity
:
Autoplan Empresa Administradora de Fondos Colectivos S.A.
Subject
:
Reconsideration appeal against Resolution of
Deputy Superintendency SMV No. 040-2023-SMV/10 File No.:
2022037694

The Deputy Superintendent of Prudential Supervision

WHEREAS:

Administrative file No. 2022037694, the reconsideration appeal filed by Autoplan Empresa Administradora de Fondos Colectivos S.A. and Report No. 345-2024-SMV/10.3, issued by the General Intendancy of Prudential Compliance; and

CONSIDERING:

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

I. BACKGROUND

2. By Deputy Superintendency Resolution SMV No. 040-2023-SMV/10 of 16 June 2023 (hereinafter, the RESOLUTION), it was resolved to sanction Autoplan Empresa Administradora de Fondos Colectivos S.A. (hereinafter, AUTOPLAN EAFC) with a fine of 1,751 Tax Units (UIT), for having incurred one (1) infraction of a minor nature classified in Annex I, numeral 3, subparagraph 3.1 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, the SANCTIONS REGULATION), for having failed to submit the interim financial information of the collective funds system administered by AUTOPLAN EAFC as of 31 March 2022, within the term established in the applicable regulations;

3. By the brief filed on 8 July 2023, AUTOPLAN EAFC filed a reconsideration appeal against the RESOLUTION;

4. The reconsideration appeal has been evaluated by the General Intendancy of Prudential Compliance in Report No. 345-2024-SMV/10.3, which has been submitted to the knowledge of this Deputy Superintendency;

5. In observance of the Principle of Due Process contemplated both in Article IV, subparagraph 1, numeral 1.2, of the Preliminary Title, as well as in Article 248, subparagraph 2 of the Single Ordered Text of the General Administrative Procedure Law, Law No. 27444, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO LPAG) and Article 18 of the SMV's SANCTIONS REGULATION, by Official Letter No. 1092-2024-SMV/10, the administrative file to which this resolution refers was made available to AUTOPLAN EAFC for its review;

II. ON THE ADMISSIBILITY OF THE RECONSIDERATION APPEAL

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

7. Likewise, Article 2181 numeral 218.2 of the Single Ordered Text of the General Administrative Procedure Law, Law No. 27444, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO LPAG), establishes that the term for filing appeals is fifteen (15) peremptory days. According to the provisions of Article 144 of the TUO LPAG, the aforementioned term shall begin to run from the day following the legal notification of the challenged administrative act;

8. In this regard, it has been verified that the challenged resolution was notified to AUTOPLAN EAFC on 16 June 2023 and the reconsideration appeal was filed on 8 July 2023, that is, within the fifteen (15) days established by Article 218 of the TUO LPAG;

9. Pursuant to Article 219 of the TUO LPAG, the appeal of

[1] "Article 218. Administrative appeals 218.1 Administrative appeals are: a) Reconsideration appeal b) Appeal Only in the case that by law or legislative decree the filing of the administrative appeal of review is expressly established, shall it be admissible. 218.2 The term for filing appeals is fifteen (15) peremptory days, and they must be resolved within thirty (30) days."

reconsideration is filed before the same body that issued the challenged act and must be supported by new evidence. However, in the case of administrative acts issued by bodies that constitute a single instance, new evidence is not required;

III. ON THE ARGUMENTS PRESENTED BY AUTOPLAN EAFC

10. With regard to the infraction classified as minor and the fine of 1,751 UIT imposed, AUTOPLAN EAFC reiterates that through its brief of defense it acknowledged its responsibility regarding the imputed charge, that is, regarding not having submitted the monthly interim financial information as of 31 March 2022 of the collective funds system it administers, within the term established in Article 74 of the Regulation of the Collective Funds System and its Administering Companies, approved by SMV Resolution No. 020-2014-SMV/01 and its amendments;

11. In this sense, it states that Article 257 of the TUO LPAG should have been applied, as well as literals a) and b) of Article 26 of the SANCTIONS REGULATION, since it has acknowledged its responsibility regarding the event that occurred and contributes to the clarification of the infraction;

12. Likewise, the administering company maintains that, in addition to the infractions indicated, it respectfully states that, based on the information in the file and that it submitted in due course, it considers that it could be considered, ex officio, that it is also in the situation established in literal c) of article 26 of the SANCTIONS REGULATIONS, taking into consideration that it proceeded to fully remedy the conduct under discussion, consisting of submitting the monthly interim financial information as of 31 March 2022 of the collective funds system it administers;

13. Therefore, AUTOPLAN EAFC requests that its acknowledgment of responsibility, its contribution to the clarification of the infraction and the remediation carried out after the payment request be considered as mitigating factors, in accordance with the provisions of article 26 of the SANCTIONS REGULATIONS and article 257 of the TUO LPAG, and that the fine imposed be mitigated by at least 50%;

IV. EVALUATION OF THE ARGUMENTS PRESENTED

14. With regard to what was stated by AUTOPLAN EAFC regarding its reiteration that article 257 of the TUO LPAG should be applied, as well as literals a) and b) of article 26 of the SANCTIONS REGULATIONS2 , since it has acknowledged its responsibility and has contributed to the clarification of the infraction, it should be noted that, as observed in recitals 43 and 44 of the RESOLUTION, when analyzing the mitigating circumstances of responsibility, said acknowledgment and the contribution to the clarification of the infraction subject to charges by

[2] Article 26.- MITIGATING CIRCUMSTANCES OF RESPONSIBILITY The following constitute mitigating circumstances of responsibility for infractions: a) Acknowledgment of responsibility by the offender expressly and in writing, once the administrative sanctioning procedure has begun. (…) b) Contribution by the offender to the clarification of the infraction (…)”.

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AUTOPLAN EAFC, which is why the applicable fine was reduced by fifty percent (50%); otherwise, the fine would have amounted to 3,502 UIT as stated in recital 39 of the RESOLUTION:

“39. In that sense, in accordance with the guidelines established in subsection 4.2, numeral (iv) and (v) of the SANCTION CRITERIA, a fine amounting to 3,502 UIT should be imposed on AUTOPLAN EAFC for the infraction committed; (…) 43. With regard to the voluntary declaration of the commission of the infractions and the contribution of the offender to their clarification, established in article 257, numeral 2, literal a) of the TUO OF THE LPAG and in article 26, literals a) and b) of the SANCTIONS REGULATIONS, it should be noted that AUTOPLAN EAFC has acknowledged its responsibility for the infraction under analysis expressly and in writing, within the period granted for the submission of defenses, and in a precise, concise, clear, express and unconditional manner, without ambiguous or contradictory expressions, and has not hindered its clarification; therefore, in accordance with the provisions of the aforementioned article 26, literal a), numeral 1 and fourth paragraph of the same article, the amount of the applicable fine should be reduced by fifty percent (50%); 44. In this regard, considering the above, and that this sanctioning procedure is related to infractions whose determination and proof is objective on the basis of a deadline by which the information must be submitted, and also that their detection is evidenced as a result of the supervision and control activities carried out continuously by the SMV regarding compliance with the timely submission of information provided for in the REGULATIONS; the 50% reduction in the fine to be imposed on AUTOPLAN EAFC should be applied, in accordance with the provisions of article 26, subsection a), numeral 1 of the SANCTIONS REGULATIONS, and therefore the determined fine of 3,502 UIT is reduced to 1,751 UIT;” (Underlining added);

15. In that sense, it has been verified that the RESOLUTION evaluated and applied the mitigating circumstances of responsibility alleged by AUTOPLAN EAFC, which are set forth in literals a) and b) of article 26 of the SANCTIONS REGULATIONS;

16. Additionally, AUTOPLAN EAFC requests that it be considered ex officio whether the mitigating circumstance provided for in literal c) of article 26 of the SANCTIONS REGULATIONS3 should be applied, because it would have fully remedied the conduct under discussion, by submitting on 31 March 2020 the monthly interim financial information of the collective funds system it administers;

17. On this matter, it should be indicated that the aforementioned literal c) of article 26 of the SANCTIONS REGULATIONS only considers as a

[3] “Article 26.- MITIGATING CIRCUMSTANCES OF RESPONSIBILITY The following constitute mitigating circumstances of responsibility for infractions: (…) c) The remediation carried out after its request or the beginning of the administrative sanctioning procedure.”

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mitigating circumstance that remediation carried out after its request or the beginning of the administrative sanctioning procedure, which does not occur in the present case;

18. Therefore, it is concluded that the arguments raised by AUTOPLAN EAFC in its reconsideration appeal have not rebutted the grounds of the RESOLUTION, which served as the basis for the imposition of the sanction applied to said company4 ;

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

RESOLVES:

Article 1.- Declare unfounded the reconsideration appeal submitted by Autoplan Empresa Administradora de Fondos Colectivos S.A. for the reasons set forth in this resolution.

Article 2.- Declare that the administrative remedy has been exhausted, as Resolution of the Deputy Superintendency SMV No. 040-2023-SMV/10 has become final.

Article 3.- This resolution must be published on the SMV Institutional Page on the Single Digital Platform of the Peruvian State, in compliance with the provisions of numeral 1, article 7 of the Policy on the 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.

[4] It should be noted that, in accordance with article 6, numeral 6.1 of the Gradualness Regime for Sanctions for late submission of financial information, annual report and material events, approved by SMV Resolution No. 007-2023-SMV/01 of 04 September 2023, in force as of 01 January 2024 (hereinafter, GRADUALNESS REGIME FOR SANCTIONS), it provides that the sanction of a warning 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 legally protected right; b) The infringement committed has not caused concrete harm to investors or associates; c) The infringing subject has no prior record or, if it has one, it consists of sanctions corresponding to minor infringements imposed by the SMV that became final in the four (4) years prior to the commission of the infringement being evaluated; d) The infringing subject 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 the commission of the infringement.

Considering the foregoing, in the present case it is observed that with respect to the infringement subject to charges, AUTOPLAN EAFC is a repeat offender. In that sense, considering the provisions of subparagraph d) referred to in the preceding paragraph, a fine sanction would be appropriate.

On this matter, it is appropriate to indicate that, in accordance with numeral 6.2.2 of the GRADUALNESS REGIME FOR SANCTIONS, the considerations for the application of a fine sanction, in the case of non-compliance in the submission of individual interim financial statements, are as follows: On the basis of two (2) UIT, ten percent (10%) of one (1) UIT will be added for each calendar day of delay up to forty (40) days equivalent to four (4) additional UIT to the base, an additional percentage counted from the second day of delay, without prejudice to the fact that said amount could be higher if aggravating factors exist.

Therefore, the provisions of the GRADUALNESS REGIME FOR SANCTIONS are not more beneficial for the administered party.

Article 4.- Transcribe this resolution to Autoplan Empresa Administradora de Fondos Colectivos S.A.

Omar Gutiérrez Ochoa
Deputy Superintendent
Deputy Superintendency of Prudential Supervision