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. 053-2024-SMV/10

Lima, 25 October 2024

Summary: The reconsideration appeal filed by Diviso Sociedad Administradora de Fondos S.A. is declared founded in part.

Administered entity
: Diviso Fondos Sociedad Administradora de Fondos S.A.
Subject
:
Reconsideration appeal filed against Deputy Superintendency Resolution SMV No. 25-2023-SMV/10.
File No.:
2023021722

The Deputy Superintendent of Prudential Supervision

WHEREAS:

Administrative file No. 2023021722, the appeal filed by Diviso Fondos Sociedad Administradora de Fondos S.A., Report No. 1048-2024-SMV/10.3, issued by the General Intendancy of Prudential Compliance, and the arguments presented by Diviso Fondos SAF S.A.; 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 any reference to CONASEV in legal provisions shall be understood as referring to the SMV;

I. BACKGROUND

2. By Deputy Superintendency Resolution SMV No. 24-2023-SMV/10 of 15 May 2023 (hereinafter, RESOLUTION 24-2023), it was resolved to sanction Diviso SAF Sociedad Administradora de Fondos S.A. (hereinafter, DIVISO SAF) with a fine of 9 UIT for having incurred three (3) serious infractions; one (01) classified in Annex I, numeral 2, subparagraph 2.25 and two (02) classified in Annex VII, numeral 2, subparagraph 2.2 of the Sanctions Regulations, approved by SMV Resolution No. 035-2018-SMV/01 and its amendments (hereinafter SANCTIONS REGULATIONS) for failing to comply with its duty of diligence by informing the market of the material event of 4 June 2019; and, for failing to comply with the regulations regarding diversification criteria or investment limits of the mutual funds named “Diviso Conservador Dólares FMIV” and “Diviso Conservador Soles FMIV“; respectively;

3. By Deputy Superintendency Resolution SMV No. 25-2023-SMV/10 of 15 May 2023 (hereinafter, RESOLUTION 25-2023), it was resolved to sanction DIVISO SAF with a fine of 6.12 UIT for having incurred two (2) minor infractions classified in Annex I, numeral 3, subparagraph 3.1 of the SANCTIONS REGULATIONS, for failing to timely report as material events of 5 and 13 March 2019 the investment excesses incurred with respect to two mutual funds it manages;

4. By document presented on 5 June 2023, Diviso SAF filed a reconsideration appeal against RESOLUTION 25;

5. On 19 August 2024, the administrator presented additional written arguments;

II. ON THE FORMAL REQUIREMENTS

6. In accordance with Article 218 of the Single Ordered Text of Law No. 27444, General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO LPAG), it establishes that the term for filing administrative appeals is fifteen (15) peremptory days. In accordance with the provisions of Article 16 of the TUO LPAG, the aforementioned period shall begin to be counted from the day following the legal notification of the challenged administrative act;

7. In this regard, it has been verified that the reconsideration appeal was filed within the fifteen (15) days established by Article 218 of the TUO LPAG;

III. ON THE ARGUMENTS SET FORTH BY DIVISO SAF

8. DIVISO SAF states that by Deputy Superintendency Resolution No. 021-2023-SMV/10 of 11 May 2023, the Deputy Superintendency of Prudential Supervision (hereinafter, SASP) resolved to separate the administrative sanctioning procedure initiated against DIVISO SAF in file No. 2023004097 and, consequently, incorporated into file No. 2023004097 the records corresponding to the imputations made as part of the file for infractions that must be resolved in a single instance, so that the imputed infractions are resolved independently, according to their procedural nature;

9. It adds that by RESOLUTION 24-2023, DIVISO SAF is sanctioned with a fine of 09 UIT for having incurred three (03) serious infractions classified in Annex VII, numeral 2, subparagraphs 2.2 and in Annex I, numeral 2, subparagraph 2.25 of the SANCTIONS REGULATIONS, for failing to comply with the regulations regarding the investment limits of two mutual funds it manages on two (02) occasions; and for failing to comply with its duty of diligence by reporting the material event of 4 June 2019, respectively;

10. DIVISO SAF states that by RESOLUTION 25-2023 it was sanctioned with a fine of 6.12 UIT, for having incurred two (02) minor infractions classified in Annex I, numeral 3, subparagraph 3.1 of the SANCTIONS REGULATIONS, for failing to timely report as material events of 5 and 13 March 2019 the investment excesses incurred with respect to the mutual funds named “Diviso Conservador Dólares FMIV” (hereinafter, FM DIVISO DÓLARES) and “Diviso Conservador Soles FMIV“ (hereinafter, FM DIVISO SOLES); failing to comply with Article 9, numeral 9.1 of the Regulations on Material Events and Reserved Information, approved by SMV Resolution No. 005-2014-SMV/01 and its amendments (hereinafter, HI REGULATIONS);

On the nullity of RESOLUTION 25-2023

11. DIVISO SAF states that on 04 June 2019 it reported the investment excesses of FM DIVISO DÓLARES and FM DIVISO SOLES, indicating that they had supposedly begun on 03 June 2019. In this regard, it indicates that it was sanctioned for reporting late – on 04 June 2019 – the material fact regarding the aforementioned investment excesses. However, it points out that through RESOLUCIÓN 24-2023, DIVISO SAF is sanctioned for reporting a fact that was neither truthful nor clear; in this regard, numeral 76 of the aforementioned resolution states that:

"(…) the charge formulated observes that DIVISO FONDOS breached its duty of diligence by reporting to the market a material fact of 04 June 2019 that was neither truthful nor clear, since it is indicated that, on the one hand, the investment excesses of the mutual funds DIVISO SOLES and DIVISO DÓLARES had supposedly begun on 03 June 2019." (highlight added by DIVISO SAF).

12. DIVISO SAF notes that for the Third Charge (failure to comply with its duty of diligence in reporting the material fact referring to the investment excess), it is sanctioned for reporting a material fact late; and for the First Charge (failure to comply with the regulations regarding fund limits), it is sanctioned because that same fact was neither truthful nor clear;

13. DIVISO SAF emphasizes that the SMV must consider that in the present case there is a single applicable infraction type as set forth in Annex I, numeral 3, subsection 3.1, of the SANCTIONS REGULATIONS, according to which the following constitutes an infraction:

"Submitting beyond the established deadline, or doing 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."; (highlight added by DIVISO SAF)

14. DIVISO SAF states that, indeed, the communication to the market was late and at the same time incomplete, insofar as it omitted to make exact reference to the date on which the investment excesses occurred, so the communication was neither truthful nor clear;

15. DIVISO SAF maintains that when the HI REGULATIONS states in article 6, numeral 6.1, referring to the duty of diligence, that it is incumbent upon the administered party to ensure that the information it communicates has the capacity to significantly influence, and that it is truthful, clear, sufficient and timely, the consequence of non-compliance is to incur an infraction of Annex I, numeral 3, subsection 3.1, of the SANCTIONS REGULATIONS;

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

"Decade of Equal Opportunities for Women and Men" "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

16. DIVISO SAF notes that it must be considered that all information communicated incompletely without being truthful, clear, sufficient and timely, including information communicated late, evidences a situation of lack of diligence, therefore, it would be appropriate that all cases be sanctioned also with the THIRD CHARGE, which evidently is not so in practice, nor could it be;

17. DIVISO SAF stresses that the fact of sanctioning it for not timely reporting material facts and at the same time, for not complying with the duty of diligence has clearly determined that the administration finds itself in the need to use the two supposed infractions with the same grounds. To prove this, it reproduces some paragraphs:

Resolution SASP SMV No. 024-2023-SMV/10
THIRD CHARGE: FAILURE TO COMPLY WITH DUTY OF
DILIGENCE
Resolution SASP SMV No. 025-2023-SMV/10
SECOND CHARGE: FAILURE TO TIMELY REPORT
MATERIAL FACTS
Numeral 63.- In this regard, article 131 of the Numeral 9.- Article 131, literal h) of the REGLAMENTO establishes that mutual fund REGLAMENTO, provides that: "Article 131.- management companies for investment in Material facts (…) securities must report as material facts the excesses of participation. of Numeral 77.- In this regard, the information provided to the market was not truthful and clear, with which no support is observed to affirm that it fully complied with its duty of diligence, therefore no foundation is observed in its favor in the defense that disproves the charge formulated; Numeral 54.- In this regard, it cannot be affirmed that the degree of affectation to market transparency has been minimal with respect to the material facts subject of charges, having been presented with delays of 83 and 91 days (…) even more considering that when the information was communicated on 04 June 2019, it was not truthful and clear; Numeral 97. The situation described in the preceding consideration generated the publication of the material fact of 4 June 2019 in which it reported in a late manner the investment excesses occurred on 4 and 12 March 2019 as well as the content thereof which has information that was not clear and sufficient, breaching its duty of diligence;
51. Continuing with the analysis, it corresponds to determine the
sanction to be imposed on DIVISO SAF for the commission of the infractions for the late presentation of material facts;

Numeral 109.- In relation to the infringement for failing to comply with its duty of diligence, with respect to the protected legal interest, it is observed that DIVISO SAF has violated the legal interest related to the transparency of the securities market, insofar as this safeguards the right of actual and potential investors and the general public to access truthful and clear information in order to adopt investment decisions or carry out a certain evaluation, as well as affects the SMV in the implementation of its supervision and control activities that seek to protect the integrity of the market;

Numeral 41.- Regarding the severity 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 presentation, that is, the failure to observe the deadlines established to submit said information, affects the transparency of the securities market, insofar as this safeguards the right of actual and potential investors and the general public to access said information in a timely manner in order to adopt investment decisions or carry out a certain evaluation, as well as affects the SMV in the implementation of its supervision and control activities that seek to protect the integrity of the market;

18. DIVISO SAF notes from the foregoing table (which contains some of the grounds for sanction of the two resolutions) that in both cases the administration takes into account the same facts:

a. Late submission of information: Numeral 97 of RESOLUTION 24-2023 and numeral 51 of the RESOLUTION.

b. Truthful and clear information: Numeral 77 of RESOLUTION 24-2023 and numeral 54 of the RESOLUTION.

19. Therefore, it considers that it has been sanctioned twice, with different infringement types, when in reality, both actions fall under the infringement indicated in Annex I, numeral 3, subsection 3.1 of the SANCTIONS REGULATION, proof of this is that both resolutions improperly take into account the alleged non-compliances within their assessment and imposition of sanction;

20. DIVISO SAF emphasizes that numeral 54 of RESOLUTION 25-2023 expressly emphasizes the fact that said information was not truthful and clear:

“54.- In this sense, it cannot be stated that the degree of affectation to market transparency has been minimal with respect to the material facts of importance subject to charges, having been presented with delays of 83 and 91 days (…) even more so considering that when the information was communicated on 04 June 2019, it was not truthful and clear;

21. DIVISO SAF notes that said assessment, by the SAF, should not have been formulated in this file, since the charge imputed refers only to the lateness in the submission of information. Moreover, the mere fact that the SASP has taken into account “even more so that the information was not truthful and clear” – being that for the administration it was an independent infringement type – renders RESOLUTION 25-2023 null and void;

22. Regarding RESOLUTION 24-2023, DIVISO SAF points out that numeral 97 takes into account that the late submission of information is an important element that constitutes the breach of the duty of diligence, as expressly stated in numeral 97:

“The situation described in the preceding recital generated the publication of the material fact of 4 June 2019 in which it REPORTED IN A LATE MANNER the investment excesses that occurred on 4 and 12 March 2019 as well as its content which has information that was not clear and sufficient, failing to comply with its duty of diligence”; (emphasis added by DIVISO SAF)

23. Therefore, DIVISO SAF points out that RESOLUTION 24-2023 is equally null for considering in the assessment of the concretion of the infringement and assessment of the sanction “the late submission of information”;

24. DIVISO SAF notes that, what is even more delicate, with respect to the protected legal interest, both resolutions coincide in textually stating that DIVISO SAF's action has violated the legal interest related to the transparency of the securities market, as expressly stated in numeral 109 of RESOLUTION 24-2023 and in turn, in numeral 41 of RESOLUTION 25-2023;

25. DIVISO SAF requests that the challenged resolution be declared null and the file be retroceded to a moment prior to the presentation of the Report of the instructing body, so that it is considered that the submission of information late and without being truthful and sufficient constitutes only one class of affectation, liable to be sanctioned by Annex I, numeral 3, subsection 3.1 of the SANCTIONS REGULATION, for reporting the material fact out of time and incompletely insofar as it would not have been truthful and clear;

On the concurrence of infringements

26. DIVISO SAF states that in the denied assumption that the SMV considers that in the present case it has incurred two different types of infringements, it must bear in mind that the conduct or the fact generating the alleged two infringements is one single: The presentation of the material fact on 04 June 2019 without having specified the exact date of the investment excesses of the mutual funds;

27. Therefore, DIVISO SAF specifies that it is a single conduct developed by the SAF at a single moment, which in the SMV's criteria generates two infringements. If that were so, the administration has omitted to apply article 29 of the SANCTIONS REGULATION, a norm according to which:

“when the same conduct qualifies as more than one infringement, the sanction provided for the most serious infringement is applied”.

28. As DIVISO SAF has pointed out, it does not share the criterion that there are two types of infractions in the present case, but only one, but if the SMV considers otherwise, then it indicates that it would be appropriate to declare the nullity of the challenged resolution and to retroact the processing of the file to the moment prior to the report of the instructing body in order for it to comply with applying article 29 of the REGLAMENTO DE SANCIONES;

29. The foregoing, DIVISO SAF indicates, would determine that the infraction regarding the sending of extemporaneous information (second charge) be “absorbed” by the infraction for not complying with the duty of diligence in the communication of the material fact (third charge), since this charge corresponds to a serious infraction, while the second charge corresponds to a minor infraction;

30. In its additional written arguments, the administrator indicates that considering that these are different procedures would contravene the Ley del Procedimiento Administrativo General, a norm that does not establish any condition for the application of the ideal concurrence, beyond the fact that it involves a single action that determines several infractions;

31. Diviso SAF specifies that nothing prevented the instructing body from having recommended the application of the ideal concurrence of infractions, with the serious infraction being absorbed into the minor infraction, and this would not have affected the administered party's right to use different appeal channels; and failing that, the Superintendencia Adjunta, before ordering the deconsolidation of procedures into two files, should have corrected the instructor's omission and redirected the procedure under the consideration of the application of an ideal concurrence of infractions;

32. Therefore, DIVISO SAF requests that RESOLUCIÓN 25-2023 be declared null and/or revoked;

On the Principle of Typicity

33. In its additional written arguments of 19 August 2024, DIVISO SAF indicates that Annex I, numeral 2, subsection 2.25 of the REGLAMENTO DE SANCIONES states that the infraction type is:

“2.25 Not having, approving, implementing, nor complying with or modifying without communicating it to the SMV, within the corresponding term, the rules of conduct, the internal rules of conduct, or code of conduct, in accordance with the regulations on the matter, or not approving a control procedure for said rules.” (Underlining added by DIVISO SAF)

34. On that basis, it argues that the aforementioned norm does not contain within the sanctionable assumption the administered party's action affecting a duty of diligence, so to fill the unforeseen assumption, the administration tries to integrate the infraction type by alleging that DIVISO SAF was sanctioned for not complying with the rule of conduct established in numeral e) of article 3 of the Reglamento de Fondos Mutuos de Inversión en Valores y sus Sociedades Administradoras, approved by Resolución CONASEV N° 068-2010- EF/94.01.1 and its amendments (hereinafter, REGLAMENTO); however, the administrator argues that it has not been taken into account that article 3 of the REGLAMENTO refers to the observance of GENERAL RULES OF CONDUCT, but not to “Rules of Conduct”, which would affect the principle of typicity, since it would be sanctioning it on the basis that not complying with the rules of conduct must be understood the same as not complying with the GENERAL RULES OF CONDUCT, whereas the interpretation in the administrative sanctioning procedure must be restrictive;

IV. Evaluation of DIVISO SAF's arguments

35. As an argument, DIVISO SAF states that RESOLUCIÓN 25-2023 sanctioned it for communicating extemporaneously – on 04 June 2019 – the material fact referring to the investment excesses; and that RESOLUCIÓN 24-2023 sanctioned it for reporting a fact that was not truthful nor clear;

36. In this regard, it is appropriate to note that RESOLUCIÓN 25-2023 sanctioned DIVISO SAF for not complying with its obligation to timely report the material fact of 4 June 2019; it should be specified that RESOLUCIÓN 24-2023 sanctioned said company for not complying with the rule of conduct established in the Reglamento de Fondos Mutuos de Inversión en Valores y sus Sociedades Administradoras, approved by Resolución CONASEV N° 068-2010-EF/94.01.1 and its amendments (hereinafter, REGLAMENTO), referring to its duty of diligence by having reported the material fact in question that was not truthful nor clear;

37. In its reconsideration appeal, DIVISO SAF considers that all information communicated incompletely without being truthful, clear, sufficient and timely, including information communicated extemporaneously, evidences a situation of lack of diligence, therefore, it would be appropriate that all cases be sanctioned under the charge “not complying with the duty of diligence in the communication of the material fact” since it is the same basis;

38. To support its arguments on the same basis, DIVISO SAF details considerations 63, 77, 97 and 109 (infraction for failing to comply with the duty of diligence) of RESOLUCIÓN 24-20231 and considerations 9, 41, 51 and 54 (infraction for presenting extemporaneously the HI of 4 June 2019) of RESOLUCIÓN 25-2023, highlighting that in both infractions the same facts referring to “extemporaneous presentation” and “truthful and clear information” are taken;

39. Therefore, DIVISO SAF considers that it has been sanctioned twice, with different infraction types, when in reality, both actions are subsumed in a single infraction contemplated in Annex I, numeral 3, subsection 3.1, of the REGLAMENTO DE SANCIONES: “Presenting outside the established term, or doing so incompletely the material facts”, since the HI of 4 June 2019 was at the same time incomplete, to the extent that it omitted to make exact reference to the date on which the investment excesses occurred, so the communication was not truthful nor clear;

40. On this matter, it must be noted that RESOLUCIÓN 24-2023 did not sanction DIVISO SAF for reporting an incomplete fact, but for, once again, failing to comply with the conduct rule regarding its duty of diligence by having reported the material fact of 4 June 2019 that was not truthful, nor clear in its content;

41. Accordingly, it is appropriate to cite the grounds of RESOLUCIÓN 24-2023 and RESOLUCIÓN 25-2023 that support the sanctions imposed on DIVISO SAF and that through the reconsideration filed said company intends to challenge the sanctions imposed, for which only the relevant part of each of them will be cited:

RESOLUTION No. 24-2023-SMV/10:

64. Likewise, in article 6, numeral 6.1 of the REGLAMENTO DE HECHOS DE IMPORTANCIA the following is established:

“Article 6.- Duty of diligence In complying with the obligations established in this Regulation, the Issuer is responsible for:

[1] That sanctioned DIVISO SAF for failing to comply with the conduct rule established in the Reglamento de Fondos Mutuos de Inversión en Valores y sus Sociedades Administradoras, approved by Resolución CONASEV N° 068-2010- EF/94.01.1 and its amendments (hereinafter, REGLAMENTO), regarding its duty of diligence by having reported the aforementioned material fact that was not truthful, nor clear.

6.1. Ensure that the information it communicates has the capacity to significantly influence, as defined in articles 3 and 4, and that it is truthful, clear, sufficient and timely, as well as that it is not disseminated to a specific group of investors or other groups with an interest in it before it is available to the entire public, through the means established in this Regulation (…)”.

65. In that sense, article 3, literal e) of the REGLAMENTO establishes that, in the development of its activities, the management company must comply with the following general rule of conduct, for which it will implement the necessary procedures and controls for its due observance:

“Article 003°.- GENERAL RULES OF CONDUCT

(…)

e) Honesty, Care and Diligence.- Perform its activities with honesty, as well as with due care and diligence in the best interest of the mutual fund and its participants, avoiding acts that may deteriorate the confidence of market participants;

(…)”

70. Based on the foregoing, DIVISO FONDOS was charged with having allegedly breached its duty of diligence given that it did not exercise the necessary care to verify the dates on which the investment excesses in which the mutual funds DIVISO DÓLARES and DIVISO SOLES allegedly incurred occurred, considering that said excesses occurred on 3 June 2019, by including such information in the material fact that was brought to the market's attention on 04 June 2019, failing to observe article 6, numeral 6.1 of the REGLAMENTO DE HECHOS DE IMPORTANCIA, for not being truthful and clear, and article 3, literal e) of the REGLAMENTO, for failing to comply with its duty of diligence;

75. On this matter, what DIVISO stated is not correct insofar as the material fact submitted by the management company on 04 June 2019 does not include in any of its parts the clarifications regarding the dates of 4 and 12 March 2019, so DIVISO intends to confuse the regulator. It should be noted that the table presented in its defense belongs to a response by DIVISO to the OFICIO dated 21 June 2019;

76. It is necessary to highlight that the charge formulated observes that DIVISO FONDOS breached its duty of diligence to inform the market of a material fact of 04 June 2019 that was not truthful, nor clear, since it is indicated that, on the one hand, the investment excesses of the mutual funds DIVISO SOLES and DIVISO DÓLARES would have supposedly begun on 03 June 2019. Thus, in the material fact what was reported was the following:

77. In this sense, the information provided to the market was not truthful and clear, with which no support is observed to affirm that it fully complied with its duty of diligence, so no basis is observed in its favor in the defense that disproves the charge formulated;

78. In this sense, DIVISO FONDOS breached the provisions of article 3, inciso e) of the REGLAMENTO and article 6, numeral 6.1 of the REGLAMENTO DE HECHOS DE IMPORTANCIA, by having failed to observe the provisions of the Normas Generales de Conducta regarding its duty of diligence, since it should have ensured that the information provided to the market is clear and sufficient, based on the principle of transparency that governs the securities market and the communication of material facts;

79. Therefore, DIVISO FONDOS has incurred one (1) infraction classified as serious, according to Annex I, numeral 2, inciso 2.25 of the REGLAMENTO DE SANCIONES; according to which it constitutes an infraction: “Not having, approving, implementing, nor complying with or modifying without communicating it to the SMV, within the corresponding term, the rules of conduct, the internal rules of conduct, or code of conduct, in accordance with the regulations on the matter, or not approving a control procedure for said rules”;

(highlight added)

42. Regarding what was stated, the following is objectively inferred with respect to the infraction: “failing to comply with its duty of diligence in the communication of the material fact referring to the investment excess” subject to the formulation of charges and sanction:

a. Based on the foregoing, such information in the material fact was not truthful nor clear; on the contrary, it misinformed the market about a circumstance that evidently was not, even remotely, real or adjusted to reality in view of the fact that the date on which the events occurred was not in June 2019 but in March 2019.

b. What was described evidenced the failure by DIVISO SAF to observe the conduct rule referring to the duty of diligence contemplated in article 3, literal e) of the REGLAMENTO.

Likewise, such non-compliance entailed the failure to observe article 6, numeral 6.1 of the REGLAMENTO DE HI, which establishes that the issuer of the material fact must ensure that the information is truthful and clear, among others.

Both rules were expressly cited and applied, from the beginning of the imputation of charges, as the legal basis to support the infringement committed and the sanction imposed.

c. The duty of diligence, by definition, is a broad concept, which cannot be understood restrictively as DIVISO SAF claims in its reconsideration appeal, since that would imply that any failure to observe regulations would mean the absence of such duty, thus establishing a general and vague regulatory scope, without specifying the "ought to be" and therefore, an uncertain gap that would allow the commission of infringements that could not be adequately sanctioned due to lack of specificity;

RESOLUCIÓN N° 25-2023:

10. For its part, article 9, numeral 9.1, of the REGLAMENTO DE HECHOS DE IMPORTANCIA, provides that:

"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 applicable to the Bolsa or to the managing entity of the respective centralized negotiation mechanism. This, regardless of whether the information has been generated or not in the Issuer itself. (…)".

13. Article 121 of the REGLAMENTO states that:

"Article 121.- Excesses and Investments not provided for due to attributable causes For purposes of Article 251 of the Law, it is understood that excesses or investments not provided for in the investment policy of the mutual fund occur due to causes attributable to the managing company, when they originate directly from the management of the managing company itself. Excesses or investments not provided for in the investment policy that occur due to causes attributable to the managing company must be remedied no later than the following business day after occurrence; otherwise they must be disclosed as a material fact clearly indicating the condition of being attributable to the management of the managing company. (…)".

(Underline added)

43. In relation to the aforementioned, the following is objectively inferred regarding the infringement: "failure to timely inform the market of the material facts of 5 and 13 March 2019":

a. The late reporting to the market of two material facts constitutes two punishable infringements. The first related to the investment excess of the mutual fund DIVISO DÓLARES that occurred on 4 March 2019 and which should have been reported as a material fact on 5 March of the same year. The second regarding the investment excess of the mutual fund DIVISO SOLES that occurred on 12 March

of 2019 and which should have been reported as a material fact on 13 March of the same year.

b. This infringement questions the late timing of the communication of the two material facts of 5 and 13 March 2019, respectively, not their content, that is, the factual basis refers to "when it should have been communicated" and not to "what information it should have contained", as DIVISO SAF claims in its reconsideration.

c. The legal basis is expressly regulated in the second paragraph of article 121 of the REGLAMENTO referring to the fact that the managing company, in this case DIVISO SAF, must disclose the investment excess due to a cause attributable to DIVISO SAF as a material fact on the day following the occurrence of the fact.

44. On the other hand, regarding DIVISO SAF's argument that the challenged infringements have the same basis, for which said managing company cites recitals 63, 77, 97 and 109 (infringement for failing to comply with the duty of diligence) of RESOLUCIÓN 24-2023 and recitals 9, 41, 51 and 54 (infringement for filing late the HI of 4 June 2019) of RESOLUCIÓN 25-2023, the following should be noted:

45. As regards recital 632 of RESOLUCIÓN 24-2023 and recital 93 of RESOLUCIÓN 25-2023, which in DIVISO SAF's opinion is the same basis for sanctioning the two infringements it challenges, it must be specified that in the first case article 131, literal h) of the REGLAMENTO was cited only to explain what type of material fact it is with respect to which the material fact originated regarding which the conduct rule referring to the duty of diligence was not complied with. It should be highlighted that the rule breached and for which DIVISO SAF was sanctioned is not the latter but article 6, numeral 6.1 of the REGLAMENTO de HI and article 3, literal e) of the REGLAMENTO in accordance with recital number 70 of the

[2] 63. In this regard, article 131 of the REGLAMENTO establishes that mutual fund managing companies for investment in securities must report participation excesses as material facts, in accordance with the following: "Article 131.- MATERIAL FACTS The managing company is obliged to submit all information regarding the mutual fund under its management that qualifies as a material fact for investors, in accordance with the provisions of the regulation on the matter, as well as the provisions issued by the SMV. (…) The following qualify as Material Facts, in addition to the foregoing: (…) h) Excesses of investments and participation. (…)".

[3] 9. Article 131, literal h) of the REGLAMENTO, provides that: “Article 131.- Material facts The management company is obliged to send all information regarding the mutual fund under its management that qualifies as a material fact for investors, in accordance with the provisions of the regulations on the matter, as well as the provisions issued by the SMV. All information referring to the management company itself that meets the assumption set forth in the second paragraph of article 28 of the Law for the participants and potential investors of the mutual fund under its management must also be sent as a material fact. Additionally, the management company is obliged to communicate as a material fact any information that could influence the behavior of the mutual fund, the unit value and, in general, any information that could influence an investor's appreciation of the performance of the mutual fund. The following qualify as Material Facts, in addition to the foregoing: (…) h) Excesses of investments and of participation. (…)”

RESOLUCIÓN 24-2023 cited above;

46. With regard to recital 9 of RESOLUCIÓN 25-2023, it must be stated that article 131, literal h) of the REGLAMENTO was likewise cited only to explain what type of material fact it is with respect to which the market was not timely informed. It must be emphasized that the rule breached and for which DIVISO SAF was sanctioned is not the latter but article 9, numeral 9.1 of the REGLAMENTO DE HI;

47. Therefore, the same basis alleged by DIVISO SAF is not observed in either of the two infractions challenged;

48. With regard to recital 77 of Resolución 24-2023, it states textually the following:

“77. In this regard, the information provided to the market was not truthful and clear, so that no support is observed to affirm that it fully complied with its duty of diligence, and therefore no basis is observed in its favor in the defense that disproves the charge made;”

49. On this point, it should only be noted that said recital 77 concludes that the defenses submitted by DIVISO SAF do not rebut the charge made;

50. For its part, recital 54 of RESOLUCIÓN 25-2023 states textually the following:

“54. In this regard, it cannot be stated that the degree of affectation to market transparency was minimal with respect to the material facts subject to charges, having been submitted with delays of 83 and 91 days, during which time the investors, the participants of the mutual funds managed by DIVISO FONDOS and the market in general did not have access to the material facts of the company; in this regard, it will be appropriate to analyze the imposition of fines on the management company in relation to the infractions referring to the aforementioned material facts; even more so considering that when the information was communicated on 04 June 2019, it was not truthful and clear;”

51. This recital is within section IV entitled “Evaluation of the Sanction”, and it is where the appropriateness of imposing a warning sanction is evaluated, given that it is a requirement to determine whether the affectation to the market was minimal;

52. Therefore, this does not imply, in any way, that it was a factual or legal basis for determining whether it incurred in the non-observance of the second paragraph of article 121 of the REGLAMENTO, but rather for determining the sanction to be imposed on DIVISO SAF for the infraction committed, which, as DIVISO SAF well knows, must be evaluated and defined as part of the “Criteria Applicable to the Administrative Sanctioning Procedure for Breach of the Rules governing the Submission of Periodic or Eventual Information”, approved by Resolución SMV N° 006-2012- SMV/01 and its amendment;

53. With regard to recital 97 of RESOLUCIÓN 24-2023, it states textually the following:

“97. The situation described in the preceding recital gave rise to the publication of the material fact of 4 June 2019, in which the excesses of investment occurring on 4 and 12 March 2019 were reported extemporaneously, as well as its content, which contains information that was not clear and sufficient, breaching its duty of diligence;”

54. This recital is within section IV entitled “Evaluation of the Sanction”, and it is where the sanction criteria are evaluated to determine the sanction to be imposed on DIVISO SAF for the commission of the infractions evaluated;

55. Therefore, this does not imply, in any way, that it was a factual or legal basis for determining whether it incurred in the non-observance of article 6, numeral 6.1 of the REGLAMENTO de HI and article 3, literal e) of the REGLAMENTO, for failing to comply with the rule of conduct referring to its duty of diligence at the time of detailing the information to be communicated to the market via material fact, which, as DIVISO SAF well knows, must be evaluated and defined as part of the “Sanction Criteria” contemplated both in the Ley del Mercado de Valores, in the LPAG and in the REGLAMENTO DE SANCIONES to determine the sanction to be imposed after having determined that DIVISO SAF incurred in infraction;

56. With regard to the fact that both infractions (extemporaneous communication of the material fact of 04 June 2019 and for the lack of diligence in communicating such fact, which was not truthful, nor clear) have violated the same protected legal interest (transparency of the securities market), it must be stated that indeed both breached legal obligations affect the principle of transparency of the securities market; however, it has been made clear both in the resolutions challenged and in the analysis of the arguments of the reconsideration submitted, that we are faced with two completely distinct legal obligations, with substantive rules distinct from each other and with fully differentiated legal types;

57. Likewise, the fact that both legal obligations are under the mantle of the principle of transparency of the securities market does not prevent contemplating different assumptions from each other to which the same applies;

58. It must be remembered that said principle is regulated in article 14 of the Securities Market Law in the section “Preliminary Provisions and Definitions” together with the principle of orderly market development and shareholder protection, and therefore applies to all provisions contained in said Law and the regulations derived from it, as applicable;

59. In that sense, it is not legally valid to affirm that when applying the same principle of transparency one would have to be in the same substantive norm and in the same infraction type, since as has been demonstrated, these are different legal obligations from each other;

60. On the other hand, regarding the principle of typicity alleged with respect to the infraction type contained in Annex I, numeral 2, subsection 2.25 of the SANCTIONS REGULATION, it should be noted that it is not legally possible to issue a pronouncement on the matter, to the extent that the infraction for non-compliance with the rules of conduct, specifically the duty of diligence observed, regulated in literal e) of article 3 of the REGULATION, is an infraction that has been sanctioned by RESOLUTION 24, an infraction different from the one sanctioned by RESOLUTION 25 which is the subject of this reconsideration;

61. Finally, it should be noted that it is taken into

[4] Article 1.- Purpose and Scope of the Law The purpose of this law is to promote the orderly development and transparency of the securities market, as well as the adequate protection of the investor. (…)

account that the administrative sanctioning procedure initiated through Office No. 487-2023-SMV/10.3 imputed to DIVISO SAF three facts constituting infractions: 1) failure to comply with the regulations regarding investment limits of the FUND; b) failure to timely report the material facts of 5 and 13 March 2019; and, c) failure to comply with its duty of diligence in the communication of the material fact of 04 June 2019 referring to the excess investment;

62. What was stated in the preceding recital determined the commission of two serious infractions for the imputation indicated in literal a); two minor infractions for the imputation indicated in literal b); and, one serious infraction for the imputation referred to in literal c);

63. According to what has been developed in this procedure, it has been proven that DIVISO SAF incurred an infraction by having communicated to the market in a late manner the material facts of 5 and 13 March 2019, respectively, the referred excess investments incurred, since it communicated them extemporaneously on 04 June 2019, failing to comply with article 9, numeral 9.1 of the REGULATION OF MATERIAL FACTS;

64. Consequently, article 29 of the SANCTIONS REGULATION referring to the concurrence of infractions should be applied to this case, it being understood that the sanction corresponding to the two minor infractions is subsumed in the sanction imposed for the aforementioned serious infractions;

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;

RESOLVES:

Article 1.- Declare partially founded the reconsideration appeal filed by Diviso Sociedad Administradora de Fondos S.A. against the Resolution of Deputy Superintendence SMV No. 25-2023-SMV/10 for the reasons set forth in this resolution only in the extreme of the provisions of article 2 of the aforementioned resolution referring to the sanction to be imposed for the infractions committed.

Article 2.- Declare that the sanction that corresponds to be imposed for the two (02) infractions of a minor nature typified in Annex I, numeral 3, subsection 3.1, of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for failing to timely inform the market as a material fact on 5 and 13 March 2019, respectively, the excess investments incurred with respect to the mutual funds named “Diviso Conservador Dólares FMIV” and “Diviso Conservador Soles FMIV“, in application of article 29 of the cited Sanctions Regulation, is subsumed in the sanction imposed for the commission of the serious infractions imputed through Office No. 487-2023-SMV/10.3.

Article 3.- This resolution exhausts the administrative avenue.

Article 4.- This resolution must be published on the Institutional Page of the SMV 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 5.- Transcribe this resolution to Diviso Sociedad Administradora de Fondos S.A.

Signed by: GUTIERREZ OCHOA Omar Dani Reason:

Omar Gutiérrez Ochoa
Deputy Superintendent
Deputy Superintendence of Prudential Supervision