Deputy Superintendent Resolution No. 035-2025-SMV/11

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship Deputy Superintendent Resolution SMV No. 035-2025-SMV/11 Lima, May 15, 2025 Subject: The reconsideration appeal filed by Compañía Minera Poderosa S.A. against Deputy Superintendent Resolution SMV No. 024-2025-SMV/11 is declared unfounded.

Regulated Entity: COMPAÑIA MINERA PODEROSA S.A.
Subject: Sanctioning Administrative Procedure
File No.: 2024027991

The Deputy Superintendent of Market Conduct Supervision

HAVING SEEN:

The administrative file No. 2024027991, which contains, among others, the reconsideration appeal filed on April 10, 2025, by Compañía Minera Poderosa S.A. (hereinafter, the Issuer) against Deputy Superintendent Resolution SMV No. 024-2025-SMV/11 of March 21, 2025 (hereinafter, the Challenged Resolution), which resolved to sanction the Issuer with a total fine of 6.30 UIT equivalent to S/ 31,185.00 (Thirty-One Thousand Eight Hundred and Fifty and 00/100 Soles), and Report No. 566-2025-SMV/11.2 (hereinafter, the Report), issued by the General Superintendent of Conduct Compliance (hereinafter, the IGCC) of the Deputy Superintendent of Market Conduct Supervision (hereinafter, the SASCM);

CONSIDERING:

I. FUNCTION AND COMPETENCE OF THE SASCM

1. That, the administrative file No. 2024027991 contains the documentation and information regarding a sanctioning administrative procedure, which has been brought to the knowledge of the SASCM in observance of the exercise of the supervision function and the sanctioning power of the Securities Market Superintendency – SMV, established through the Unified Concordant Text of its Organic Law, Legislative Decree No. 26126 (hereinafter, Organic Law of the SMV), and the Unified Ordered Text of the Securities Market Law, Legislative Decree No. 861, approved by Supreme Decree No. 020-2023-EF 1, as well as by what is provided in the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, Sanctions Regulation), and in articles 42 and 43 of the Organization and Functions Regulation of the Securities Market Superintendency, approved by Supreme Decree No. 216-2011-EF, in the sense that it is a specific function of the SASCM to resolve reconsideration appeals against the resolutions it issues;

II. FACTS

2. That, through the Challenged Resolution, it was resolved as follows: (i) to sanction the Issuer with a fine of 3.15 UIT equivalent to S/ 15,592.50 (Fifteen Thousand Five Hundred and Ninety-Two and 50/100 Soles) for the late communication of the material event referred to the illegal blockade of roads and access routes that affected the activities of the Pataz mining unit, (ii) to sanction the Issuer with a fine of 0.32 UIT equivalent to S/ 1,559.25 (One Thousand Five Hundred and Fifty-Nine and 25/100 Soles) for the late communication of the material event referred to the unblocking of roads and access routes that affected the activities of the Pataz mining unit, and (iii) to sanction the Issuer with a fine of 2.84 UIT equivalent to S/ 14,033.25 (Fourteen Thousand Thirty-Three and 25/100 Soles) for the late submission of consolidated interim financial statements as of December 31, 2022;

3. That, through a document presented on April 10, 2025, the Issuer filed a reconsideration appeal against the Challenged Resolution;

4. That, through Memorandum No. 1443-2025-SMV/11 of April 10, 2025, the Office of the SASCM requested the IGCC to evaluate the reconsideration appeal presented by the Issuer;

5. That, through Deputy Superintendent Resolution SMV No. 029-2025-SMV/11 of April 11, 2025, it was resolved: “To qualify the present sanctioning administrative procedure as high complexity, according to numeral 3 of article 1 of SMV Resolution No. 013-2024-SMV/01”;

6. That, through Report No. 566-2025-SMV/11.2 of April 30, 2025, the IGCC evaluated the reconsideration appeal presented by the Issuer;

7. That, the arguments of the reconsideration appeal filed by the Issuer have been the subject of evaluation in the Report by the IGCC, which has been submitted to the knowledge of the SASCM;

III. MATTERS TO BE DETERMINED

8. That, it corresponds to determine whether or not to reconsider what was resolved in the Challenged Resolution;

IV. ANALYSIS

4.1. OF THE CHALLENGING APPEAL

1 Footnote 1: Through Supreme Decree No. 020-2023-EF, published on February 10, 2023, in the Official Gazette El Peruano, the Unified Ordered Text of the Securities Market Law, Legislative Decree No. 861, was approved.

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship

9. That, first of all, it must be specified that sanctioning administrative procedures related to the timeliness in the presentation of periodic and eventual information correspond to be processed in a single instance, that is, in charge of the SASCM, as indicated in article 43 of the ROF-SMV 2;

10. That, in accordance with what is established in articles 218 3, 219 4 and 221 5 of the Unified Ordered Text of Law No. 27444, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO of the LPAG), the reconsideration appeal must be filed within the term of fifteen (15) days from the communication of the challenged administrative act. In the present case, it is appreciated that the Resolution was notified to the Issuer on March 23, 2025 and the reconsideration appeal was filed on April 10, 2025; that is, within the legal term established;

11. That, it must be indicated that the other requirements for the filing of the reconsideration appeal, established by article 221 concordant with article 124 6 of the TUO of the LPAG, have been verified and fulfilled; therefore, the evaluation of the present reconsideration appeal proceeds;

2 Footnote 2: “Article 43°.- Specific functions of the Deputy Superintendent of Market Conduct Supervision:
(…)
14. To impose sanctions in a single administrative instance for the commission of infractions regarding timeliness in the presentation of periodic and eventual information, the compliance control of which corresponds to the Deputy Superintendent of Market Conduct Supervision;
(…)”.

3 Footnote 3: “Article 218. Administrative appeals
218.1 The administrative appeals are:
a) Reconsideration appeal b) Appeal
Only in the case that by law or legislative decree it is expressly established, the filing of the administrative review appeal is admissible.
218.2 The term for the filing of the appeals is fifteen (15) peremptory days, and they must be resolved within the term of thirty (30) days”

4 Footnote 4: “Article 219.- Reconsideration appeal The reconsideration appeal shall be filed before the same body that issued the first act that is the subject of the challenge and must be supported by new evidence. In the case of administrative acts issued by bodies that constitute a single instance, new evidence is not required. This appeal is optional and its non-filing does not prevent the exercise of the appeal.”

5 Footnote 5: “Article 221.- Requirements of the appeal The appeal document must indicate the act from which the appeal is made and fulfill the other requirements provided for in article 124”

6 Footnote 6: “Article 124.- Requirements of the documents Any document presented before any entity must contain the following:

1. Full names, address and National Identity Document number or foreigner’s ID card of the regulated entity, and if applicable, the quality of representative and of the person represented.
2. The concrete expression of what is requested, the factual grounds that support it and, when possible, the legal grounds.
3. Place, date, signature or fingerprint, in case of not knowing how to sign or being impeded.
4. The indication of the body, entity or authority to which it is addressed, understood as such, as far as possible, the authority of the grade closest to the user, according to the hierarchy, with competence to know and resolve it.
5. The address of the place where notifications of the procedure are desired to be received, when it is different from the real address exposed by virtue of numeral 1. This address indication produces its effects from its indication and is presumed subsistent, unless its change is expressly communicated.
6. The list of documents and attachments that accompany it, indicated in the TUPA.
7. The identification of the file of the matter, in the case of already initiated procedures.”

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship

4.2. EVALUATION OF THE RECONSIDERATION APPEAL

12. That, next, it proceeds to analyze and evaluate each of the arguments contained in the challenging appeal presented by the Issuer:

1. REGARDING THE LATE COMMUNICATION OF MATERIAL EVENTS REFERRED TO THE BLOCKADE AND UNBLOCKING OF ROADS

In this regard of its appeal, the Issuer states the following:

“(…) Regarding the blockade of routes, in fact this began on June 20, 2023 and continued during the month of July until August 06, 2023, however, during said period we continued working, maintaining our productive activities and resolving the circumstances as they presented themselves. In this line of thought, after the evaluation we carried out, the blockade did not have a significant incidence in economic or financial terms, although production dropped during the month of July, it recovered partially from the month of August until the end of the 2023 fiscal year, which, added to the increase in the international price of gold, allowed us to maintain the line with the company’s plans, for this reason, we conclude that there was no significant effect for PODEROSA. In fact, this situation was informed by our part through the information request that the General Superintendent of Conduct Supervision made to us through Office No. 4855-2023-SMV/11.1 dated October 25, 2023, which we attended through a document with File No. 2023042935 dated November 02, 2023, specifying that the blockade did not have a significant incidence in economic or financial terms.

(…)

In conclusion, the communication of both material events had the intention of putting in the knowledge of the market, the constant criminal actions perpetrated by illegal mining criminal organizations and the bands of criminals called ‘parqueros’ against us, one of which was the blockade of roads and access routes to our mining unit. However, this blockade action, in concrete, did not have a significant impact on our activities, even previously we have suffered isolated attacks against the company’s infrastructure, which due to the company’s rapid response have allowed our production not to suffer significant negative impacts with respect to our annual program, which merit communication to the market, for which reason, the qualification as a material event indicated in numeral 31 of Annex 1 of the Regulation of Material Events would not be configured in the present case.

In this point, we must manifest that the evaluation carried out by the Deputy Superintendent of Market Conduct Supervision, in the sense that it holds that although PODEROSA has alleged that the material events in reference did not have a significant impact on its activities, considers that what was argued by that party in its defenses is not sufficient to refute the charges formulated in this regard, has no factual or legal basis since the Deputy Superintendent has not presented evidentiary means that accredit its evaluation regarding what was exposed by PODEROSA. In other words, if the Deputy Superintendent considers that the internal evaluation made by PODEROSA regarding that said events DID NOT have a significant impact on its activities must present an evidentiary means to support the contrary, all the more so if from the Financial Statements that PODEROSA fulfills to report periodically, it can be determined objectively that, in fact, as a result of the described events THERE WAS NO significant impact on its activities, nor on the financial statements. What is exposed here is supported by the Principle of Presumption of Truthfulness, established in numeral 1.7 of article IV of the Preliminary Title of the Unified Ordered Text of the General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS (…)”.

EVALUATION

The Issuer maintains in its reconsideration appeal that the blockade of roads and access routes to the mining unit in Pataz did not have a significant impact on its activities and added that it would correspond to the SASCM to present evidentiary means to support the contrary, this based on the principle of presumption of truthfulness established in numeral 1.75 of article IV of the Preliminary Title of the TUO of the LPAG, since its arguments would be accredited with the financial information it reports periodically.

Now, regarding the arguments presented by the Issuer, what was stated in considerations 26 and 27 of the Challenged Resolution (p. 9) is reiterated:

“26. That, in accordance with the above and according to numeral 31 of Annex 1 of the Regulation of Material Events, it is observed that the events that occurred in the Pataz mining unit are referred to events that caused interruptions in mining production, it even states that the Issuer has experienced a 60% decrease in its monthly gold production; therefore, it can be concluded that the referred events did have a significant impact on the Issuer’s activities, for which they should have been communicated on the day they occurred;

27. That, in addition, it is worth mentioning that article 3 of the Regulation of Material Events defines that a material event is one that has the capacity to significantly influence the issuer or its values and, according to article 4 of the same regulation, it is specified that to evaluate the capacity for significant influence, the issuer must take into account the transcendence of the event in its activity, assets, results, financial situation or business or commercial position; therefore, it can be affirmed that the Issuer communicated the illegal blockade and unblocking of roads and access routes of the Pataz mining unit after this evaluation and opted to qualify them as material events”.

According to what is cited, although the Issuer affirms in its reconsideration appeal that the blockade of roads and access routes to the mining unit in Pataz did not have a significant incidence, this does not negate the fact that in its original communications – voluntarily and expressly – it qualified these events as a significant impact on the regular development of its mining activities (e.g., material events of August 04, 2023). On this particular, in the mentioned text of the material event of August 04, 2023, it stated the following:

“(…) this organized crime is executing the illegal blockade of roads and access routes to our mining unit since June 20 to date, which has significantly affected the regular development of our mining activities during a period of 46 days.

Unfortunately, this situation, added to the constant power outages caused by the blasting of high voltage towers, has forced us to intermittently paralyze our Marañón and Santa María I processing plants, from June 20 to July 28, and totally for almost 3 days (from July 29 to 31). As a direct result of these circumstances, our production in the month of July has experienced a 60% decrease in gold ounces with respect to the production program of the month”

This situation communicated as a material event shows by the Issuer itself that the event produced had the capacity to significantly influence its activities.

Complementarily, a search was carried out in the financial information reported by the Issuer, resulting in a coincidence between the information communicated through the material events subject to analysis and what was exposed in its annual report corresponding to the 2023 fiscal year, in which it detailed the impact of illegal mining on its operations, as seen below:

Similarly, in the aforementioned annual report, it is observed that the Issuer prepared a table in which it made a list of topics through which it went during the year 2023, classifying the blockade of roads as “significant, real and negative impact” for its company, as shown below:

In view of the above, it has been demonstrated that the aforementioned annual report, which is part of the audited financial information that the Issuer is obligated to report annually, backs up the information communicated on August 04, 2023 regarding the quality of material event of the blockade of roads and access routes to the Pataz mining unit, contrary to what was maintained by the Issuer in its reconsideration appeal, whose arguments were also presented in the instruction stage.

In this sense, the argument presented by the Issuer stating that it would correspond to the SMV to prove the contrary, that is, to substantiate that the blockade did have a significant impact, is considered that from the perspective of the Principle of Presumption of Truthfulness, both the communication of the material event of August 04, 2023 and the information contained in the annual report of the 2023 fiscal year constitute sufficient elements that evidence the relevant impact of the referred blockade. In this sense, the Issuer’s subsequent claim, which attempts to disregard what was already informed to the market, lacks legal efficacy, insofar as it fails to refute the validity of the antecedents previously provided by the Issuer itself. Therefore, it is not required that the SMV undertake additional actions to substantiate what has already been duly accredited.

For the aforementioned reasons, the reconsideration appeal must be declared unfounded in this regard.

2. REGARDING THE LATE SUBMISSION OF CONSOLIDATED INTERIM FINANCIAL STATEMENTS

On the other hand, in this regard of the reconsideration appeal, the Issuer states the following:

“(…) said late submission was not due to an involuntary error or fraud on the part of PODEROSA to fail to comply with its obligation as an issuer, but to the exceptional, unforeseeable and irresistible situation generated by the resignation of our general accountant, Mr. Iván Asmat Salazar, which occurred on February 20, 2023, as we accredit with the copy of the resignation letter that we attach as evidentiary means and the worker’s deregistration record from the TRegistro, resignation that was untimely, as we were not sent the respective notice of resignation with the term of thirty (30) days in advance to the date

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and the effective authorship of the resolution of the labor relationship, as indicated by the respective norm, which is why we were unaware of their decision until the day of receipt of the resignation letter, being an unforeseeable situation for PODEROSA. In this unexpected situation, we were forced to search for and hire a professional to cover the vacant position of general accountant, which was hired on March 01, 2023, as can be seen in the copy of the employment contract we attach as evidence, and it is only from that moment on that we could initiate procedures with the company BMTECH PERÚ S.A.C. for the issuance and activation of the digital certificate of our general accountant, whose credential is necessary for the approval and sending, through the MVNET system, which is why March 15, 2025 was the date on which the Consolidated Financial Statements as of December 31, 2022 were submitted»

EVALUATION
The Issuer in its reconsideration appeal again states that the late submission of the consolidated interim financial statements as of December 31, 2022, was due to a force majeure situation originating from the unexpected resignation of Mr. Iván Asmat Salazar (hereinafter, Mr. Asmat), who did not submit the advance notice letter within the thirty (30) days prior to the effective date of the resolution of the labor relationship, so he had to hire a new general accountant, as well as manage the issuance and activation of his digital certificate, a credential necessary for the approval and sending of the financial information under analysis through the MVNet system. Regarding this aspect of the appeal, the grounds 32 to 36 of the Impugned Resolution are reiterated, so from the analysis of the reconsideration appeal, there is no ground or proof different from that presented in the instruction stage that deserves greater analysis than what has already been done, especially regarding what was alleged regarding force majeure, therefore, the aforementioned grounds of the resolution have sufficient motivation to ratify the imposed sanction. In that sense, the force majeure alleged by the Issuer has not been proven, even more so when it is evident that the Issuer could have had the faculty to reject the requested exemption taking into consideration the proximity of the submission of the consolidated interim financial statements as of December 31, 2022, which, as is its knowledge, had the deadline of March 01, 2023; however, the resignation was accepted on February 20, 2023, as informed by the Issuer when accompanying as evidence the Worker Termination Certificate from the T-Registro of SUNAT. In that sense, what was argued by the Issuer does not constitute a force majeure situation but rather demonstrates a lack of diligence in the timely submission of the financial statements under analysis, so the reconsideration appeal must be declared unfounded in this regard.

13. That, from what was evaluated in the preceding considerations, this Adjunct Superintendency concludes that the arguments presented by the Issuer in its reconsideration appeal do not justify revoking or varying what was resolved in the Impugned Resolution, so its reconsideration appeal must be declared unfounded, and;
    In accordance with what is provided in paragraphs 14, 22 and 36 of
    Article 43 of the Regulations on Organization and Functions of the Superintendency of the

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and the effective authorship

MARKET OF VALUES, approved by Supreme Decree No. 216-2011-EF;

RESOLVES:
Article 1º.- Declare UNFOUNDED the reconsideration appeal filed by Compañía Minera Poderosa S.A. against the Adjunct Superintendent Resolution SMV No. 024-2025-SMV/11 of March 21, 2025.
Article 2º.- Confirm the Adjunct Superintendent Resolution SMV No. 024-2025-SMV/11, which sanctions Compañía Minera Poderosa S.A. with a total fine of 6.30 UIT for having committed three (3) minor infractions typified in paragraph 3 of numeral 3.1 of Annex I of the Sanctions Regulation.
Article 3º.- Consider the administrative route exhausted.
Article 4º.- Transcribe this Resolution to
Compañía Minera Poderosa S.A.

Register, communicate and publish.

Carlos Rivero Zevallos
Adjunct Superintendent
Adjunct Superintendency of Market Conduct Supervision