RegAlertEnforcement · SMV · 16 Feb 2024
Resolution No. 005-2024-SMV/10 of the Deputy Superintendency of Prudential Supervision
Plan Rentable Perú S.A.C. is sanctioned with 27 UIT for eight infractions: two very serious, four serious and two minor, including maintaining persons with impediments, not having the minimum net equity, not preparing required information, not updating guarantees, not complying with the Collective Fund Chart of Accounts, not presenting minutes and bylaws on share capital modification on time, and not communicating registry file changes. The company must pay the fine.
Superintendencia Adjunta SMV Resolution
Nº 005-2024-SMV/10
Lima, 16 February 2024
Summary: Plan Rentable Perú S.A.C. ex Empresa Administradora de Fondos Colectivos is sanctioned with 27 UIT for having incurred eight (08) infractions: two (02) of a very serious nature typified in Annex I, numeral 1, items 1.15 and 1.16; in four (4) serious ones typified in Annex I, numeral 2, items 2.2 and 2.26 and Annex XIII, numeral 2, item 2.3; and in two (02) minor ones typified in Annex I, numeral 3, item 3.6 and Annex XIII, numeral 3, item 3.1 of the Sanctions Regulation, this i) for directly maintaining persons who have some impediment in accordance with the regulations; ii) for not having the minimum net worth established; iii) for not preparing, in accordance with the rules that regulate its preparation, the information to which they are obligated by the regulations; iv) for not updating their guarantees, v) for not complying with the Chart of Accounts of the Collective Fund (2); vi) for not presenting to the SMV, on the date of the agreement or the day after it is taken, a copy of the minutes and article of the bylaws referring to the modification of the company's share capital; and, vii) for not communicating those facts that entail a modification of the data in the registry file of the collective fund management companies, respectively.
Administered
:
Plan Rentable Perú S.A.C. ex Empresa Administradora de Fondos Colectivos.
Subject
:
Administrative sanctioning procedure.
File No. : 2023049989.
The Deputy Superintendent of Prudential Supervision
VIEWS:
Administrative file No. 2023049989, Report No. 73-2024-SMV/10.3, issued by the General Intendancy of Prudential Compliance, as well as the discharges and allegations presented by Plan Rentable Perú S.A.C. ex Empresa Administradora de Fondos Colectivos1 ; and,
CONSIDERING:
1. In accordance with article 1 of Law No. 29782, Law for the Strengthening of the Supervision of the Securities Market, the name of Comisión Nacional Supervisora de Empresas y Valores (CONASEV) is replaced by that of Superintendencia del Mercado de Valores (SMV), so that any reference to CONASEV in legal norms shall be understood as made to the SMV;
I. Facts
2. Through Reports No. 1090-2022-SMV/10.2 and No. 63-2023-SMV/10.22, the General Intendancy of Supervision of Entities communicated to the General Intendancy of Prudential Compliance (IGCP), the instructing body, the indications of possible infractions by Plan Rentable Perú S.A.C. ex Empresa Administradora de Fondos Colectivos (hereinafter, PLAN RENTABLE) to the Regulation of the Collective Funds System and its Management Companies, approved by SMV Resolution No. 020-2014-SMV-01 (hereinafter, REGULATION);
3. As a result of the evaluation of said reports, through Official Letter No. 5496-2023-SMV/10.3, notified on 1 December 2023, hereinafter OFFICIAL LETTER OF CHARGES, the IGCP initiated an administrative sanctioning procedure against PLAN RENTABLE, imputing charges for non-compliances with the regulations of the Collective Funds System;
4. By written document received by the SMV on 19 December 2023, PLAN RENTABLE presented the requested discharges;
5. The charges formulated against PLAN RENTABLE as well as the discharges expressed by said company have been subject to evaluation in Report No. 73-2024-SMV/10.3, which has been submitted to the knowledge of this Deputy Superintendency;
6. In observance of the Principle of Due Process contemplated both in Article IV, numeral 1.2, of the Preliminary Title and in article 248, item 2, of the Single Ordered Text of the General Administrative Procedure Law, Law No. 27444 and its amendments (hereinafter TUO LPAG), through Official Letter No. 204-2024-SMV/10, the administrative file to which this resolution refers was made available to PLAN RENTABLE for its review;
7. On 24 January 2024, PLAN RENTABLE presented additional written allegations;
II. Issues to Determine
[1] By Superintendent Resolution No. 093-2023-SMV/02 dated 06 November 2023, it was resolved to revoke the operating authorization of Plan Rentable SAC as a Collective Fund Management Company.
[2] In this report, the indications detected based on the results of the inspection visit to Plan Rentable Perú S.A.C. are communicated. EAFC, which was resumed in accordance with the provisions of Official Letter No. 924-2021-SMV/10.2 of 5 March 2021, and included the review of the period from 01 January 2020 to 28 February 2021.
8. In this administrative procedure, in the opinion of this Deputy Superintendency of Prudential Supervision, it corresponds to determine the following:
a. Whether PLAN RENTABLE incurred or not in infraction to the provisions of article 2 of Decree Law No. 22014 and articles 38 and 39 of the REGULATION, for not having the minimum net worth established by the regulations.
b. Whether PLAN RENTABLE incurred or not in infraction to the provisions of article 11-A and Annex B, literal s) of the Common Norms to entities that require authorization of organization and operation of the SMV, approved by SMV Resolution No. 039-2016-SMV/01 and its amendments; and articles 11 and 13 of the REGULATION for directly maintaining persons who have some impediment in accordance with the aforementioned regulations.
c. Whether PLAN RENTABLE incurred or not in infraction to the provisions of article 40 of the REGULATION for not updating the established guarantees.
d. Whether or not PLAN RENTABLE incurred in an infraction of the provisions of articles 34 and 72 of the REGLAMENTO, of article 2 of the Financial Information Regulation approved by CONASEV Resolution No. 103-99-EF-94.10, of article 1 of the Rules on the preparation and presentation of Financial Statements and Annual Report by entities supervised by the Superintendency of the Securities Market, approved by SMV Resolution No. 016-2015-SMV-01, of paragraph 15 of International Accounting Standard 1, “Presentation of Financial Statements” (IAS 1) and paragraphs 2.12, 2.13, 2.14, 2.18 and 2.21 of the Conceptual Framework for Financial Reporting of the International Financial Reporting Standards –IFRS, in force at the date of occurrence of the facts, for not preparing, in accordance with the rules governing their preparation, the information to which they are obligated by the regulations.
e. Whether or not PLAN RENTABLE incurred in an infraction of the provisions of articles 34, 74, 75 and Annex 3 of the REGLAMENTO, and account 42 Accounts payable and account 10 Cash of the Chart of Accounts for Collective Funds, approved by SMV Resolution No. 006-2015-SMV-01, for not complying with the Chart of Accounts of the Collective Fund.
f. Whether or not PLAN RENTABLE incurred in an infraction of the provisions of article 18 of the REGLAMENTO, for not presenting to the SMV, on the date of the agreement or on the day following its adoption, a copy of the minutes and article of the bylaws referring to the modification of the company's share capital.
g. Whether or not PLAN RENTABLE incurred in an infraction of the provisions of article 73, literals d) and e) of the Regulation, for not communicating those facts that entail a modification of the data in the registry file of the collective fund management companies, within the period granted by the SMV.
h. Whether or not it is appropriate to impose a sanction on PLAN RENTABLE for the matters indicated in the preceding subparagraphs;
III. Analysis
FIRST CHARGE: NOT HAVING THE MINIMUM NET EQUITY ESTABLISHED. OF THE REGULATIONS
9. Regarding minimum capital and equity, article 2 of Decree Law No. 22014, and its amendments, establishes that the EAFC must have a minimum share capital:
“The minimum share capital of the Collective Fund Management Companies is Seven Hundred Fifty Thousand and 00/100 Nuevos Soles (S/. 750 000), which must be fully paid in cash at the time of starting its operations.
The net equity of the Collective Fund Management Companies may not be less than the minimum share capital.
The equity deficit incurred by the Collective Fund Management Companies must be covered with new capital contributions, within thirty (30) days following the date of presentation of the financial statements that show this situation or of its verification by CONASEV, which, if it deems it pertinent, may grant an additional period.” Underline added;
10. Likewise, in accordance with the Single Final Provision of Law No. 27659, the figure established as minimum capital is of constant value and is updated annually based on the Wholesale Price Index for Metropolitan Lima:
“The amount of the minimum share capital of the Collective Fund Management Companies is of constant value and will be updated annually based on the Wholesale Price Index for Metropolitan Lima periodically published by the National Institute of Statistics and Informatics. The Collective Fund Management Companies, within the three (3) months following the close of each fiscal year, must adjust their capital.”;
11. In this regard, through Circular No. 003-2019-SMV/10.2 and Circular No. 004-2020-SMV/10.2, the SMV informed that the updated value of the minimum capital for the years 2019 and 2020 was S/ 1 136 887 (one million one hundred thirty-six thousand eight hundred eighty-seven and 00/100 soles) and S/ 1 135 573 (one million one hundred thirty-five thousand five hundred seventy-three and 00/100 soles), respectively;
12. With regard to the minimum share capital, article 36 of the REGLAMENTO provides:
“Within the three (3) months following the close of the fiscal year, the Management Company must have a share capital registered in the Public Registries, for an amount equal to or greater than the updated amount of minimum capital for that year.
The deficit that arises in the registered share capital of a Management Company must be covered only with cash contributions.
Such registration must be communicated to the SMV within the ten (10) days following its completion, with the corresponding support”;
13. Likewise, article 38 of the REGLAMENTO establishes:
“The Management Company must maintain at all times a net equity that is at least equal to the amount of minimum share capital provided in article 36 of the Regulation.
For purposes of computing the minimum net equity required of the Management Company, the amount of loans and guarantees in favor of its related parties and accounts receivable from related parties with a maturity greater than ninety (90) days must be deducted. The deductions must be disclosed in the notes to the financial statements of the Management Company”. (Underline added);
14. Whereas article 39 of the REGLAMENTO states:
“The net equity deficit incurred by the Management Company must be covered through capital contributions, within the thirty (30) days following the presentation to the SMV of the financial statements that show that situation, or of the notification to the Management Company of the verification of such deficit by the SMV, whichever occurs first”. (Underline added);
OF THE FACTS
15. In accordance with the provisions of article 39 of the REGLAMENTO, PLAN RENTABLE must cover each of its equity deficits it incurs, within a period of thirty (30) days following the submission to the SMV of the financial statements showing that situation, or of the notification to the administrator of the verification of such deficit by the SMV, whichever occurs first; notwithstanding this, the company remedied 5 (five) equity deficits, outside the period granted by the corresponding regulations, as detailed below:
Table No. 1
| No. | Quarter | Equity (S/) | Deficit (S/) | Date of submission of the FS | Maximum remediation date (A) | Actual remediation date (B) | Excess in days for remediation (B-A) |
|---|---|---|---|---|---|---|---|
| 1 | Q3-2019 | 607 416.00 | 529 471.00 | 31/10/2019 | 13/12/2019 | 27/01/2020 | 45 |
| 2 | Q1-2020 | 680 535.00 | 455 038.00 | 17/07/2020 | 01/09/2020 | 08/09/2020 | 7 |
| 3 | Q2-2020 | 816 000.00 | 319 573.00 | 25/08/2020 | 06/10/2020 | 16/10/2020 | 10 |
| 4 | Q3-2020 | 453 700.00 | 681 873.00 | 02/11/2020 | 14/12/2020 | 18/12/2020 | 4 |
| 5 | Q4-2020 | 202 000.00 | 933 573.00 | 15/02/2021 | 29/03/2021 | 08/02/2022 | 316 |
16. Regarding the interim financial information for the third quarter of 20193, through official letter No. 5587-2019-SMV/10.02, dated 25 November 2019, the SMV notified PLAN RENTABLE that its net equity amounted to S/ 607 416.00 (six hundred seven thousand four hundred sixteen and 00/100 soles); therefore, considering that the minimum capital for fiscal year 2019 was S/ 1 136 887.004, the company incurred an equity deficit, so it was instructed to remedy the deficit by no later than 13 December 2019; however, the deficit was remedied on 27 January 20205;
17. Likewise, in relation to the interim financial information for the first quarter of 20206, the SMV notified PLAN RENTABLE through official letter No. 2734-2020-SMV/10.02 of 19 August 2020, that its net equity, considering the capital contributions made up to 19 June 2020, amounted to S/ 680 535.00 (six hundred eighty thousand five hundred thirty-five and 00/100 soles); therefore, considering that the minimum capital for fiscal year 2020 was S/ 1 135 573.007, the company incurred an equity deficit and was instructed to
[3] File No. 2019043498.
[4] Through Circular No. 003-2019-SMV/10.2, the SMV reported that the updated value of the minimum capital for the year 2019 is S/ 1,136,887.00.
[5] Through the public deed of capital increase dated 28/01/2020, which includes the minutes of the Universal Shareholders' Meeting dated 27/01/2020, in which the capital increase is agreed.
[6] File No. 2020024113.
[7] Through circular No. 004-2020-SMV/10.2, the SMV reported that the updated value of the minimum capital for the year 2020 is S/ 1,135,573.00.
remedy it by 31 August 2020. However, the deficit was remedied on 8 September 20208;
18. As for the interim financial information for the second quarter of 20209, the SMV notified PLAN RENTABLE through official letter No. 3442-2020-SMV/10.02 of 02 October 2020, that its net equity, considering the capital contributions made up to 07 September 2020, amounted to S/ 816 000.00 (eight hundred sixteen thousand and 00/100 soles); therefore, taking into account the minimum capital for fiscal year 2020, the company incurred an equity deficit, so it was indicated that it must remedy it by no later than 06 October 2020; however, the deficit was remedied only on 16 October 202010;
19. Along the same lines, as a result of the review of the interim financial information for the third quarter of 202011, through official letter No. 4223-2020-SMV/10.02 of 24 November 2020, the SMV notified PLAN RENTABLE that its net equity, considering the capital contributions made up to 16 October 2020, amounted to S/ 453 700.00 (four hundred fifty-three thousand seven hundred and 00/100 soles); therefore, considering the minimum capital for fiscal year 2020, the company incurred an equity deficit and was instructed to remedy it by 14 December 2020. However, the deficit was remedied on 18 December 202012;
20. In the case of the financial statements presented on 15 February 2021, corresponding to the fourth quarter of 2020, it was noted that PLAN RENTABLE had net equity of S/ 202 000.00 (two hundred two thousand and 00/100 soles), an amount lower than the minimum capital required for the year 2020, presenting a deficit of S/ 933 573.00 (nine hundred thirty-three thousand five hundred seventy-three and 00/100 soles); therefore, by Official Letter No. 988-2021-SMV/10.2, issued on 11 March 2021, the SMV requested PLAN RENTABLE to remedy its equity deficit no later than 29 March 2021 and to submit the certificate of registration of the capital increase in the Public Registries;
21. On 12 April 2021, after the deadline that PLAN RENTABLE had to remedy the aforementioned deficit had expired, the company filed a request for an extension of the deadline to remedy its equity deficit. That request was denied by Official Letter No. 1455-2021-SMV/10.2 of 15 April 2021;
22. By written submission of 16 April 202113, PLAN RENTABLE presented proof of payments to the company's account for S/ 335 712.76 (three hundred thirty-five thousand seven hundred twelve with 76/100 soles), an amount that was not sufficient to remedy the equity deficit; therefore, the company still maintained an equity deficit of S/ 597 860.24 (five hundred ninety-seven thousand eight hundred sixty with 24/100 soles);
23. The situation described in the preceding recitals led to the suspension of PLAN RENTABLE's operating authorization by Superintendency Resolution No. 029-2021-SMV/02 of 28 April 2021;
[8] By the capital increase agreed by Minutes of the Universal Shareholders' Meeting of 8/09/2020.
[9] Communicated to the SMV through file No. 2020029964.
[10] By the capital increase agreed by Minutes of the Universal Shareholders' Meeting of 16/10/2020.
[11] File No. 2020039287.
[12] Through a letter, Plan Rentable presents the proof of payments made up to 18/09/2020.
[13] Through a letter, Plan Rentable presents the proof of payments made up to 11/03/2021.
24. On the other hand, by written submissions sent up to 8 February 2022, PLAN RENTABLE presented copies of the Titles filed with SUNARP, with which its capital increases that remedied its equity deficit were registered14;
25. Consequently, according to the foregoing, PLAN RENTABLE did not comply with increasing its minimum net equity within the deadline established by the regulations in the periods corresponding to the third quarter of 2019, first quarter of 2020, second quarter of 2020, third quarter of 2020 and fourth quarter of 2020; therefore, it was charged with having failed to comply with the provisions of article 2 of Decreto Ley No. 22014, articles 38 and 39 of the REGLAMENTO;
OF THE DEFENSES SUBMITTED
26. PLAN RENTABLE states that it accepts and acknowledges the imputed infraction. Likewise, it requests that the following be considered;
a) All the charges indicated in the OFICIO DE CARGOS and the referenced file have been corrected, without any requirement resolution ordering their correction.
b) None of the imputed charges has caused any harm to the fund or much less to third parties, since they were remedied without any requirement from the Superintendency or similar body.
c) It has no current sanction related to any of the imputed charges.
d) It requests that the dates on which the statute of limitations for the imputed facts would correspond be reviewed, since they were committed several years ago, specifying that this will not set aside its acknowledgment of the facts carried out and remedied in due course;
EVALUATION OF THE DEFENSES
27. In accordance with the defenses submitted, PLAN RENTABLE acknowledges the commission of the imputed infraction. Without prejudice to the foregoing, it must be noted that it has been proven in the file that PLAN RENTABLE did not remedy 5 (five) equity deficits within the deadline granted by article 39 of the REGLAMENTO as detailed in Table No. 1; the deficits being remedied up to 316 days after the maximum date on which they should have been remedied; therefore, the administrator failed to comply with the provisions of article 2 of Decreto Ley No. 22014, and articles 38 and 39 of the REGLAMENTO;
28. Regarding the statute of limitations of the imputed fact, it should be noted that the oldest fact occurred on 14 December 2019, so the four years to determine the existence of an infraction, in accordance with article 4215 of the Reglamento de Sanciones, approved by Resolución SMV No. 035-2018- SMV/01 (hereinafter, REGLAMENTO DE SANCIONES), would expire on 14 December 2023; however, the imputation of charges was notified to PLAN RENTABLE on 1
[14] Copies of registration submitted through file No. 2021014993, 30/11 and 01, 10, 14/12/2021; as well as on 8/02/ 2022.
[15] 15Article 42.- STATUTE OF LIMITATIONS The power to determine the existence of administrative infractions prescribes after four (4) years. (…)
December 2023, that is, before the aforementioned 14 December, therefore, the imputation of the present charge was made in a timely manner and, in that sense, the statute of limitations for the alleged facts has not occurred;
29. Regarding the remediation of the imputed facts and the criteria for the evaluation of the sanction indicated by PLAN RENTABLE, it should be noted that this will be analyzed at the time of evaluating the sanction to be imposed;
30. Therefore, PLAN RENTABLE incurred one (1) infraction classified as very serious, in accordance with Annex I, numeral 1, subsection 1.16 of the REGLAMENTO DE SANCIONES, according to which it constitutes an infraction: “Not having the minimum share capital, the operating capital for the operational risk component required, or the minimum net equity established in the regulations on the matter, or not increasing them or not registering the share capital in the Registry of Legal Entities, in a timely manner”;
SECOND CHARGE: SUBMIT THE DOCUMENTATION TO WHICH IT IS OBLIGED BY THE REGULATIONS OUTSIDE THE ESTABLISHED DEADLINE.
ON THE REGULATIONS
31. Regarding the obligation to register amendments to the bylaws in Public Registries, article 18 of the REGULATION establishes that:
"Article 18.- Other amendments to the bylaws In the case of amendments to the bylaws other than those indicated in the preceding articles, the Administrator shall present to the SMV a simple copy of the minutes containing said agreement and a copy of the bylaws that includes the amendments made, on the day following the adoption of the agreement. (...)".
ON THE FACTS
32. It was verified that PLAN RENTABLE, after adopting the respective capital increase agreements, would not have complied with sending to the SMV a simple copy of the minutes and of the bylaws of the respective amendment. Thus, from Table No. 2, the dates of the shareholders' meetings and the date of submission of the corresponding documentation to the SMV are observed:
Table No. 2
| Capital increase amounts (S/) | No. of Title | Date of Shareholders' Meeting | Maximum Submission Date (A) | Date of submission of minutes to the SMV (B) | Excess in days (B-A) |
|---|---|---|---|---|---|
| 1,376,900.00 | (2021-02852703) | 29/11/2019 | 02/12/2019 | 13/12/201916 | 11 |
| 412,900.00 | (2021-02852703) | 27/01/2020 | 28/01/2020 | 28/01/202017 | Compliant |
| 659,000.00 | (2021-02890363) | 25/06/2020 | 26/06/2020 | 09/09/202018 | 75 |
| 332,700.00 | (2021-02890361) | 16/10/2020 | 19/10/2020 | 16/10/202019 | Compliant |
[16] File No. 2019045670.
[17] File No. 2020003076.
[18] File No. 2020021456.
[19] File No. 2020035013.
| 570,000.00 | (2021-02890362) | 08/09/2020 | 09/09/2020 | 09/09/202020 | Compliant |
|---|---|---|---|---|---|
| 2,313,300.00 | (2022–00125689) | 21/12/2021 | 22/12/2021 | 23/12/202121 | 1 |
33. In this regard, article 18 of the REGULATION establishes that in the case of amendments to the bylaws, the Administrator must present to the SMV a simple copy of the minutes and a copy of the bylaws that includes the amendments made, on the day following the adoption of the agreement; however, from Table No. 2, it follows that with respect to the shareholders' meetings of 27 January, 16 October 2020 and 8 September 2020, PLAN RENTABLE complied with presenting to the SMV, on the date of the agreement or the day after it was taken, a copy of the minutes and article of the bylaws referring to the amendment of the company's share capital;
34. However, the copies of the pertinent amendment of the bylaws and of the minutes of the shareholders' meeting of PLAN RENTABLE of 29 November 2019, 25 June 2020 and 21 December 2021 were presented to the SMV only on 13 December 2019, 9 September 2020 and 23 December 2021, respectively; that is, outside the deadline established in article 18 of the REGULATION (they should have been presented on 2 December 2019, 26 June 2020 and 22 December 2021, respectively);
35. For the foregoing, it was imputed to PLAN RENTABLE that it would have breached article 18 of the REGULATION;
ON THE DEFENSES SUBMITTED
36. PLAN RENTABLE submits to what was imputed by the SMV, therefore, accepts and acknowledges the fault committed and which is indicated in the charge letter, likewise, requests that what is stated be considered for the first charge;
EVALUATION OF THE DEFENSES
37. In accordance with the arguments presented, PLAN RENTABLE acknowledges the commission of the imputed infraction;
38. On this matter, it has been proven in the record that PLAN RENTABLE, after adopting the respective capital increase agreements, failed to timely submit to the SMV the simple copy of the minutes and the amended bylaws regarding the shareholders' meetings of its company held on 29 November 2019, 25 June 2020 and 21 December 2021; that is, outside the period established in article 18 of the REGLAMENTO; as detailed in Table No. 2, submitting the information up to 75 days late with respect to the deadline;
39. Regarding the statute of limitations for the imputed act, it should be noted that the oldest act occurred on 2 December 2019, so the four years to determine the existence of an infraction, in accordance with article 42 of the REGLAMENTO DE SANCIONES, would expire on 2 December 2023; however, the imputation of charges was notified to PLAN RENTABLE on 1 December 2023, that is, before the aforementioned 2 December, so the imputation of this charge was made in a timely manner and, accordingly, the statute of limitations for the alleged acts has not occurred;
[20] File No. 2020021456.
[21] File No. 2021014993.
40. As for the remediation of the imputed acts, it should be noted that this will be analyzed at the time of evaluating the sanction to be imposed;
41. Therefore, PLAN RENTABLE, by failing to comply with the provisions of article 18 of the REGLAMENTO, incurred one (1) infraction classified as minor, in accordance with Annex I, numeral 3, subsection 3.6 of the REGLAMENTO DE SANCIONES, according to which the following constitutes an infraction: “Submitting after the deadline, or failing to submit, the documentation or information, other than that indicated in the preceding numeral 3.1, that they are obligated to provide under the regulations or at the request of the SMV, or failing to submit it in accordance with the technical specifications, where applicable, or submitting it incompletely”;
THIRD CHARGE: DIRECTLY KEEPING PERSONS WHO HAVE SOME IMPEDIMENT IN ACCORDANCE WITH THE RELEVANT REGULATIONS.
ON THE REGULATIONS
42. Article 5, literal A), numeral 1, subsection i.4, of the Common Rules for entities requiring authorization of organization and operation from the SMV, approved by SMV Resolution No. 039-2016-SMV/01 and its amendments (hereinafter, COMMON RULES), establishes the conditions for a person to participate as an organizer of an EAFC, specifically stating that organizers must not be subject to the impediments established in Annex B of said rules:
“Article 5.- Authorization of organization (…) Organizers, directly or through a representative, must attach the following information to their application: A) Regarding the organizers: (…) i.4. Sworn Declaration, no more than thirty (30) days old, specifying that they are not subject to the impediments established in Annex B and the commitment to inform the SMV of any modification that occurs in what was declared”;
43. In the aforementioned Annex B, literal s), of the COMMON RULES, two situations are set forth that prevent a person from being an organizer of an EAFC:
“ANNEX B GENERAL IMPEDIMENTS The following persons cannot be organizers: (…) s) Those who, directly or indirectly, record overdue debts for more than one hundred twenty (120) calendar days, or who have more than fifty percent (50%) of their debts classified as doubtful, loss or another equivalent category, in any company of the financial system or in any credit bureau, national or foreign; and,”
44. Likewise, article 1122 of the REGLAMENTO, in force at the date the acts occurred, establishes that shareholders must maintain at all times the conditions that gave merit to the granting of the authorization of organization and/or operation:
“Article 11.- Permanent compliance with requirements for authorization of organization and/or operation Organizers, shareholders, the Administrator, its directors, managers and attorneys-in-fact must maintain at all times the conditions that gave merit to the granting of the authorization of organization and/or operation. If any of the aforementioned requirements ceases to be observed, the organizers, shareholders or the Administrator must inform the SMV immediately after becoming aware of such circumstance and proceed, if applicable, to its immediate remediation. Likewise, if it is verified that the organizers do not meet the requirements for obtaining their authorization of organization and/or operation, the SMV may require immediate remediation or revoke the authorization”;
45. The same condition is set forth in article 11-A of the COMMON RULES:
“Article 11-A.- Permanent Compliance with Requirements and Conditions All organizers and shareholders of the Entities must have, at all times, to the satisfaction of the SMV, economic and moral solvency, and must not be subject to the impediments contained in Annex B of these rules. When the organizers and shareholders of the Entities cease to comply with the conditions established in the preceding paragraph, the Entity must inform the SMV immediately after becoming aware of such circumstance and proceed, if applicable, to its immediate remediation”;
46. Likewise, article 1323 of the REGLAMENTO, in force at the date the acts occurred, establishes that:
[22] 22Article amended by Article 5 of SMV Resolution No. 005-2022-SMV/01, published on 07 April 2022, the text of which is as follows: "Article 11.- Permanent compliance with conditions and/or requirements The Administrator must maintain at all times the conditions and/or requirements that gave merit to the granting of the operating authorization. When any of the aforementioned conditions and/or requirements ceases to be observed, the Administrator must inform the SMV immediately after becoming aware of such circumstance and proceed, if applicable, to its immediate rectification. When the SMV becomes aware of the fact, the Deputy Superintendency of Prudential Supervision, or the body acting in its place, may grant a period to the Administrator to prove compliance with the conditions or requirements that gave merit to the granting of the operating authorization. Such period may be extended only once based on duly substantiated reasons. If a period has been granted, and upon its expiration the non-observance of the conditions or requirements that gave merit to the granting of the operating authorization persists, the Superintendent of the Securities Market may suspend the Administrator's operating authorization and, if the non-compliance continues, may revoke said authorization."
[23] Article amended by Article 5 of SMV Resolution No. 005-2022-SMV/01, published on 07 April 2022, the text of which is as follows: “Article 13.- Loss of conditions to be a shareholder Shareholders must not be subject to the impediments indicated in Annex B of the Common Rules. If any of the shareholders loses or ceases to meet one of the conditions and/or requirements to be a shareholder, he or the Administrator must inform the SMV of such situation immediately after becoming aware of such circumstance and proceed, if applicable, to its immediate rectification.
“Article 13.- Loss of conditions to be a shareholder
If any of the shareholders loses or ceases to meet one of the conditions or requirements to be a shareholder, he or the Administrator must inform the SMV of such situation immediately.
In such case, the Deputy Superintendency of Prudential Supervision, or the body acting in its place, may grant a period to the Administrator to reverse the situation of non-observance or prove that the situation that gave rise to the non-observance of the requirements established in article 3 of the Regulation no longer persists, if applicable. Such period may be extended only once based on duly substantiated reasons.
Upon expiration of the granted period, and if the situation that gave rise to the non-observance of the requirements established in article 3 of the Regulation has not been reversed or proven not to persist, the Superintendent of the Securities Market may suspend the Administrator's operating authorization, and if the non-compliance continues, may revoke said authorization”;
OF THE FACTS
47. Within the framework of the SMV's supervision activities, it was detected that the two shareholders of PLAN RENTABLE: Mrs. Daysi Pérez Mendoza de Torpoco (hereinafter, SHAREHOLDER 1), and Mr. Víctor Manuel Zapata Mendoza (hereinafter, SHAREHOLDER 2), whose shareholding represents 96.4% and 3.6% of the share capital of PLAN RENTABLE, respectively, presented a financial situation that did not comply with the provisions contained in the regulations according to the Infocorp Credit Report obtained on 4 December 2020;
48. Likewise, it was observed that neither the aforementioned shareholders nor PLAN RENTABLE complied with informing the SMV of such fact in accordance with the provisions of the applicable regulations;
49. Indeed, according to the aforementioned report, as of October 2020, 95% of SHAREHOLDER 1's debt in the financial system regulated by the Superintendency of Banking, Insurance and Private Pension Fund Administrators (hereinafter, SBS) was classified as loss with 1 307 days of arrears and since March 2017 more than 80% of the debt remained permanently classified as doubtful or loss in the financial system regulated by the SBS;
50. In the case of SHAREHOLDER 2, it was detected that as of October 2020 he had unpaid debts24, the most recent overdue debt being from 22 June 2018, so that, since 23 October 2018, he had more than 120 days of delay in the payment of his debts;
When the SMV becomes aware of the fact, the Deputy Superintendency of Prudential Supervision, or the body acting in its place, may grant a period to the Administrator to reverse the situation of non-observance or prove that the situation that gave rise to the non-observance of the conditions and/or requirements that its shareholders must permanently comply with no longer persists. Such period may be extended only once based on duly substantiated reasons. If a period has been granted, and upon its expiration the non-observance of the conditions and/or requirements that the shareholders of an Administrator must permanently comply with persists, the Superintendent of the Securities Market may suspend the Administrator's operating authorization, and if the non-compliance continues, may revoke said authorization."
[24] Composed of the unpaid debts reported to Infocorp.
51. In view of what was detected, through Official Letter No. 4505-2020-SMV/10.2 of 14 December 202025, the SMV requested PLAN RENTABLE to immediately rectify the impediment incurred by its shareholders, granting for such purposes a period of five (5) business days, impediments that were not rectified;
52. Subsequently, by means of Official Letter No. 1554-2021-SMV/10 dated 20 April 2021, PLAN RENTABLE was required to remedy the situation of non-compliance with the conditions to be shareholders of SHAREHOLDER 1 and SHAREHOLDER 2 or to prove that the situation that gave rise to the aforementioned non-compliance no longer persists. This, in compliance with the provisions of article 13 of the REGULATION, granting a period of three (3) days to comply with remedying such situation; impediments that were not corrected;
53. In this regard, by means of writings dated 19 February 2022 and 22 February 2022, PLAN RENTABLE reported that the debts of SHAREHOLDER 1 had been fully paid and requested that the SMV reassess the status of said shareholder;
54. Thus, after reviewing the documents submitted, it was verified that SHAREHOLDER 1 had paid S/ 1 028 581.70 (one million twenty-eight thousand five hundred eighty-one with 70/100 soles) by judicial deposit in the execution proceeding brought against her by Leonor Felicita Aguilar Reyes and Patricio Isaud Grados Castillo;
55. Likewise, paid the sum of $ 545.10 (five hundred forty-five with 10/100 United States dollars) and S/ 11 877.63 (eleven thousand eight hundred seventy-seven with 63/00 soles) to Scotiabank Perú S.A.A. as a result of a debt refinancing agreement;
56. In addition, PLAN RENTABLE submitted a certificate of no debt issued by Scotiabank Perú S.A.A. and a sworn statement in which SHAREHOLDER 1 expressly states that she had no further debts in the financial system. Thus, it was verified that, as of 22 February 2022, SHAREHOLDER 1 was no longer subject to the impediment established in Annex B, literal s), of the COMMON RULES;
57. On the other hand, regarding SHAREHOLDER 2, it should be noted that by means of a writing dated 21 March 2022, PLAN RENTABLE informed the SMV that the shares of this shareholder, equivalent to 3.08% of the share capital of the EAFC, had been transferred on 24 February 2022 to Mrs. Leyla Beatriz Sotil Gómez;
58. In this regard, according to the cited rules, shareholders must maintain at all times the conditions that justified the granting of the authorization of organization and/or operation. Likewise, said rules expressly establish that in the event that any of the aforementioned requirements ceases to be met, the shareholders or the EAFC must inform the SMV immediately after becoming aware of such circumstance and proceed, if applicable, to its immediate correction;
[25] File No. 2020044258.
[26] File No. 2021015219.
[27] File No. 2021014993.
[28] File No. 02398-2018-0-3204-JR-CI-02
59. Thus, the regulations seek that shareholders at all times have recognized economic and moral solvency to the satisfaction of the SMV and that they are not subject to the impediments set forth in the COMMON RULES;
60. In that sense, it was observed that from March 2017 to 21 February 2022 and from 23 October 2018 to 23 February 2022, SHAREHOLDER 1 and SHAREHOLDER 2, respectively, were subject to the impediments established in the regulations; however, and despite this, PLAN RENTABLE allegedly did not timely inform the SMV of said situation and also kept them in office, remedying the observed situation outside the required period by means of official letters; therefore, it was charged that it had allegedly breached article 11-A and Annex B, literal s) of the COMMON RULES; and articles 11 and 13 of the REGULATION, in force at the date of the events;
OF THE DEFENSES SUBMITTED
61. PLAN RENTABLE states that it cannot refute the charge imputed since after reviewing its physical files, it indicates that the imputation formulated is correct and PLAN RENTABLE incurred in the commission of the infraction, adds that it submits to what the SMV indicates, therefore, accepts and acknowledges the fault committed and that is indicated in the imputed charge. Likewise, it requests that the situations described for the first charge be considered;
EVALUATION OF THE DEFENSES
62. In accordance with the defenses submitted, PLAN RENTABLE acknowledges the commission of the imputed infraction;
63. In this regard, it has been proven in the file that two shareholders of PLAN RENTABLE: SHAREHOLDER 1 and SHAREHOLDER 2 presented a financial situation that did not comply with the provisions contained in the regulations according to the Infocorp Credit Report obtained on 4 December 2020;
64. In the case of SHAREHOLDER 1, as of October 2020, 95% of her debt was classified as loss with 1 307 days of arrears and since March 2017 more than 80% of the debt remained permanently with doubtful or loss classification in the financial system regulated by the SBS. As for SHAREHOLDER 2, as of October 2020 he had unpaid debts, the most recent overdue debt being from 22 June 2018, so that, since 23 October 2018 he had more than 120 days of delay in the payment of his debts;
65. According to the facts proven in the file, it was observed that from March 2017 to 21 February 2022 and from 23 October 2018 to 23 February 2022, SHAREHOLDER 1 and SHAREHOLDER 2, respectively, were subject to the impediments established in the regulations, a fact that PLAN RENTABLE did not timely communicate to this Superintendency, therefore it breached article 11-A and Annex B, literal s) of the COMMON RULES; and articles 11 and 13 of the REGULATION, in force at the date of the events;
66. Finally, regarding the statute of limitations of the imputed act, it should be noted that the observed act occurred on 4 December 2020, so the four years to determine the existence of an infraction, in accordance with article 42 of the SANCTIONS REGULATION, would expire on 4 December 2024; however, the imputation of charges was notified to PLAN RENTABLE on 1 December 2023, that is, before the aforementioned 4 December, so the imputation of this charge was made in a timely manner and, in that sense, the statute of limitations for the alleged acts has not occurred.;
67. Regarding the correction of the imputed acts, it should be noted that this will be analyzed at the time of evaluating the sanction to be imposed;
68. Therefore, PLAN RENTABLE incurred one (1) infraction classified as very serious, in accordance with Annex I, numeral 1, subsection 1.15 of the SANCTIONS REGULATION, according to which the following constitutes an infraction: “Appoint or retain as director, administrator, manager, compliance officer, fiduciary factor, member of the administrative commission in the case of securitization processes, member of the risk classifier, member of the investment committee or the surveillance committee, members of the risk management committee, representative or person responsible for internal control of any Participant or whoever acts in their place, persons who do not meet the requirements or conditions established in the regulations or have any impediment in accordance with the regulations on the matter, as well as hire or retain directly or indirectly the other persons established by the regulations who do not meet the requirements or conditions established in the regulations or have any impediment in accordance with the regulations on the matter”;
FOURTH CHARGE: FAILURE TO UPDATE GUARANTEES
OF THE REGULATIONS
69. Regarding the obligation of every collective fund management company, article 40 of the REGULATION states the following:
Article 40.- Guarantee
The Management Company must maintain a guarantee in favor of the SMV, in support of the commitments made with the Associates, for the amount that results as greater, after performing the following calculations:
a) Two percent (2%) of the total liabilities shown in the Statement of Financial Position of the Collective Funds, after deducting loans from the management company and from third parties;
b) Twenty percent (20%) of the total delinquent accounts receivable from awarded associates of active Groups that it manages. The percentage of delinquent accounts receivable must be detailed in the respective notes to the financial statements of the Statement of Financial Position of the Collective Funds. Delinquent accounts receivable from awarded associates that have payment default insurance shall not be considered for the calculation of guarantees for the amount covered by such insurance.
In any case, the amount of the guarantee that the Management Company must constitute cannot be less than two hundred thousand and 00/100 Nuevos Soles (S/. 200 000.00) or its equivalent in foreign currency, at the selling exchange rate published by the SBS on the date of constitution or update.
The amount of the guarantee must be updated semi-annually by 15 August and 15 February of each year, taking as the calculation basis the Statement of Financial Position of the Collective Funds as of 30 June and 31 December, respectively. The Management Company is responsible for ensuring that the update is made before the expiration of the guarantee corresponding to the previous semester”;
OF THE FACTS
70. On 3 November 2015, PLAN RENTABLE submitted to the SMV, through file No. 2016005913, manager's check No. 00009356 issued by Banco BBVA Perú, for an amount of S/ 282 571.16 (two hundred eighty-two thousand five hundred seventy-one and 16/100 soles) with the purpose of constituting a guarantee in favor of the SMV, in support of the commitments made with the associates of the Collective Funds System under its administration (hereinafter, SYSTEM);
71. With the aforementioned check, a bank time deposit was constituted in the name of the SMV, in accordance with article 41, literal a), of the REGULATION, according to the instructions given by PLAN RENTABLE. Likewise, the aforementioned time deposit has been renewed on different occasions, with the purpose of maintaining the described guarantee modality;
72. In that line, the last renewal of the deposit was made on 15 February 2022, and the amount reached on the date of renewal, considering the interest generated, was S/ 346 102.23 (three hundred forty-six thousand one hundred two and 23/100 soles), equivalent to USD 90 935.95 (ninety thousand nine hundred thirty-five and 95/100 United States dollars)29;
73. On the other hand, on 31 January 2022, PLAN RENTABLE submitted to the SMV the monthly financial statements as of 31 December 2021 of the SYSTEM30, in which it was observed that the total liabilities of the SYSTEM amounted to USD 3 155 677.18 (three million one hundred fifty-five thousand six hundred seventy-seven and 18/100 United States dollars), while the delinquent accounts receivable from awarded associates of active groups amounted to USD 641 386.36 (six hundred forty-one thousand three hundred eighty-six and 36/100 United States dollars). Consequently, the calculations were made in accordance with the provisions of article 40 of the REGULATION, in order to determine the minimum required guarantee, with the following amounts found:
Table No. 03 (Figures in USD)
| Account | Amount | Factor | Calculation of minimum Guarantee | Guarantee constituted by the EAFC up to 09/05/2022 | Difference | Days elapsed since the maximum date (15/02/2022) |
|---|---|---|---|---|---|---|
| Delinquent Accounts Receivable | 641,386.36 | 20% | 128,277.27 | 90,935.95 | 37,341.32 | 84 |
| Total Liabilities of the System | 3,155,677.18 | 2% | 63,113.54 |
74. In that sense, as can be observed from the calculations made, PLAN RENTABLE was required to maintain a guarantee for an amount not less than USD 128 277.27 (one hundred twenty-eight thousand two hundred seventy-seven and 27/100 United States dollars). However, PLAN RENTABLE
[29] At the selling exchange rate of 15 February 2022 published by the SBS.
[30] Through file No. 2022003788.
maintained a guarantee in favor of the SMV for an amount that totaled USD 90 935.95 (ninety thousand nine hundred thirty-five and 95/100 United States dollars);
75. Consequently, through Official Letter No. 765-2022- SMV/10.2, issued on 22 February 2022, the SMV requested PLAN RENTABLE to immediately remit the outstanding guarantee balance, considering as the calculation basis the Statement of Financial Position of the SISTEMA as of 31 December 2021;
76. In response to the official letter, PLAN RENTABLE stated on 23 February 2022 that they were carrying out the procedures to obtain a surety bond in accordance with the guarantee modality indicated in article 41, subsection c), of the REGLAMENTO, in order to cover the entirety of the required guarantee;
77. Subsequently, with a letter sent on 04 May 2022, (hereinafter, CARTA), PLAN RENTABLE indicated that it attempted to process a surety bond to present it as a guarantee. However, they were unable to obtain it, additionally attaching emails with which they would have managed said obtaining with different insurance companies;
78. Likewise, they indicated in their CARTA that if they did not obtain the issuance of the surety bond, they would grant as a guarantee in favor of the SMV two trucks that they kept in their ownership, which, according to them, would be valued at approximately USD 200 000.00 (two hundred thousand and 00/100 United States dollars), in order to cover the amount of the required guarantee;
79. In response to their CARTA, through Official Letter No. 2165-2022-SMV/10.2, notified on 6 May 2022, the SMV indicated to PLAN RENTABLE that the two trucks proposed as a guarantee cannot be accepted, because this is not included within the modalities established in article 41 of the REGLAMENTO;
80. Finally, on 10 May 2022, PLAN RENTABLE presented to the SMV, through file No. 2022007436, check No. 00000232 issued by Banco BBVA Perú, for an amount of USD 37 341.32 (thirty-seven thousand three hundred forty-one and 32/100 United States dollars) with the objective of constituting an additional guarantee in favor of the SMV, and remedying the guarantee deficit described in the preceding paragraphs. In this way, the total guarantees constituted in favor of the SMV amounted as of 10 May 2022 to USD 128 277.27 (one hundred twenty-eight thousand two hundred seventy-seven and 27/100 United States dollars), equal to the minimum guarantee amount that it had to maintain;
81. From the foregoing, PLAN RENTABLE was charged that it would not have updated the guarantee from 15 February to 10 May 2022, and therefore would have breached article 40 of the REGLAMENTO;
OF THE DEFENSES SUBMITTED
82. PLAN RENTABLE states that it submits to what was indicated by the SMV, therefore, it accepts and acknowledges the infringement committed, which was indicated in the charge imputed. Likewise, it requests that what was set forth be considered for the first charge;
EVALUATION OF THE DEFENSES
83. In accordance with the defenses submitted, PLAN RENTABLE acknowledges the commission of the imputed infringement;
84. On the matter, it has been accredited in the file that on 31 January 2022, PLAN RENTABLE presented to the SMV the monthly financial statements as of 31 December 2021 of the SISTEMA. After the calculations in accordance with the provisions of article 40 of the REGLAMENTO, in order to determine the minimum required guarantee, it was determined that PLAN RENTABLE had to maintain a guarantee for an amount not less than USD 128 277.27 (one hundred twenty-eight thousand two hundred seventy-seven and 27/100 United States dollars). However, PLAN RENTABLE had a guarantee in favor of the SMV for an amount that totaled USD 90 935.95 (ninety thousand nine hundred thirty-five and 95/100 United States dollars);
85. It must be indicated that the SMV required PLAN RENTABLE to immediately remit the outstanding guarantee balance, which it complied with only on 10 May 2022 through check No. 00000232 issued by Banco BBVA Perú, for an amount of USD 37 341.32 (thirty-seven thousand three hundred forty-one and 32/100 United States dollars) with the objective of constituting an additional guarantee in favor of the SMV;
86. In that sense, it was evidenced that PLAN RENTABLE did not update the aforementioned guarantee from 15 February to 10 May 2022, and therefore breached article 40 of the REGLAMENTO;
87. Regarding the prescription of the imputed fact, it should be noted that the observed fact began on 15 February and ended on 10 May 2022, so the four years to determine the existence of infringement, in accordance with article 4231 of the REGLAMENTO DE SANCIONES, would prescribe on 10 May 2026, however, the imputation of charges was notified to PLAN RENTABLE on 1 December 2023, that is, before the indicated 4 December, therefore, the imputation of the present charge was made in a timely manner and, in that sense, the prescription of the alleged facts has not occurred;
88. Regarding the remediation of the imputed facts, it should be noted that this will be analyzed at the time of evaluating the sanction to be imposed;
89. For the foregoing, PLAN RENTABLE incurred one (1) infringement classified as serious, in accordance with Annex I, numeral 2, subsection 2.26 of the REGLAMENTO DE SANCIONES, according to which it constitutes an infringement: “Not constituting the guarantees, not updating, renewing or replacing them, in the form, amount and conditions provided in the regulations on the matter or in those determined by the SMV”;
FIFTH CHARGE: NOT COMMUNICATING THE CHANGE OF ITS DIRECTORS
ON THE REGULATIONS
90. Article 73, literals d) and e) of the REGULATION provide that:
Article 73.- Information on the Administrator The Administrator must send to the SMV the following:
[31] 31Article 42.- STATUTE OF LIMITATIONS The power to determine the existence of administrative infringements prescribes after four (4) years. (…)
(…)
d) Variations in the Special Registry record, within two (2) days of the change having occurred or, where applicable, of having become aware of it.
e) Documentation corresponding to the variations of the preceding item d), if applicable within two (2) days of it having occurred;
OF THE EVENTS THAT OCCURRED
91. By means of Office No. 1034-2022-SMV/10.2 of 9 March 2022, among others, PLAN RENTABLE was informed that it had become aware of the resignation of Mr. Ermo José Mac Dowall Muñoz (hereinafter, DIRECTOR 1)32 as of 31 July 2021 from the position of chairman of the board of directors of PLAN RENTABLE, which he had been holding since 16 November 2020, as stated by said gentleman in the documents attached to his letter of 13 September 2021 addressed to the SMV33;
92. Likewise, according to the Second Semi-Annual Report 2021 of 4 February 2022 from the Compliance Officer, the chairman of the board of directors of PLAN RENTABLE was DIRECTOR 1; whereas according to what was stated in the Special Annual Report of the Internal Control Officer of 5 January 2022, the chairman of the board of directors of PLAN RENTABLE was Ramiro Narciso Zegarra Paredes (hereinafter, DIRECTOR 2)34;
93. However, this does not match the information contained in the Special Registry of other Entities under the jurisdiction of the SMV (hereinafter, SPECIAL REGISTRY), in which it was observed that the board of directors of PLAN RENTABLE was composed as follows:
Table No. 4
| Start Date | Name | Position |
|---|---|---|
| 03/06/2015 | Daysi Pérez de Torpoco | Chairman of the Board of Directors |
| 30/10/2015 | Vitaliano Ponce Medrano | Director |
| 03/06/2015 | Víctor Manuel Zapata Mendoza | Director |
94. In that sense, through the aforementioned Office No. 1034-2022-SMV/10.2, PLAN RENTABLE was requested to immediately clarify the composition of its board of directors and, where applicable, to update its data through the path established in the MVNet system and in the Public Registries, if applicable. Similarly, it was indicated that it must comply with sending to the SMV the documents indicated in Article 8, item e), of the REGULATION;
95. In response, on 10 and 11 March 2022, through files Nos. 2022009982 and 2022010035, respectively, the company updated the data of its directors in the Special Registry, indicating that the end date of the directors indicated in Table No. 4 was 23 July 2021 and that 2
[32] Through file No. 2021035077.
[33] Through file No. 2021035077.
[34] Both documents sent through file No. 2022006521.
August 2021 was the start date of the new directors: DIRECTOR 2 (Chairman of the Board of Directors) and Messrs. Jorge David Zegarra Paredes, Manuel Francisco Zegarra Paredes and Yimy Sullón Yarleque. However, it did not clarify the position of Chairman of the Board of Directors that DIRECTOR 1 would have held from 16 November 2020 to 31 July 2021;
96. Likewise, it is observed that, in accordance with Article 835 of the REGULATION, pursuant to Article 73, items d) and e) of the REGULATION, the EAFC must communicate to the SMV any variation of the SPECIAL REGISTRY record, as well as the documentation corresponding to this variation, within a period of two days of the change having occurred or having become aware of it;
97. In that sense, PLAN RENTABLE was charged with not having reported to date the entry and removal as Chairman of the Board of Directors of DIRECTOR 1, which occurred on 16 November 2020 and 31 July 2021, respectively, as well as not having timely reported the changes in its board of directors, which occurred from 23 July to 2 August 2021, thereby having breached Article 73, items d) and e) of the REGULATION;
OF THE DEFENSES SUBMITTED
98. PLAN RENTABLE acknowledges the commission of the charged infringement. It also requests that what was stated for the first charge be considered;
ASSESSMENT OF THE DEFENSES
99. In accordance with the defenses submitted, PLAN RENTABLE acknowledges the commission of the charged infringement;
100. In this regard, it has been proven in the file that PLAN RENTABLE did not update the information contained in the Special Registry regarding the changes in the composition of its board of directors. Indeed, DIRECTOR 1, as of 31 July 2021, resigned from the position of chairman of the board of directors of PLAN RENTABLE without said EAFC communicating such fact to the SMV; or the case of Messrs. Daysi Pérez de Torpoco, Vitaliano Ponce Medrano and Víctor Manuel Zapata Mendoza who ceased in their positions on 23 July 2022; or the appointment of their new directors Messrs. DIRECTOR 2, David Zegarra Paredes, Manuel Francisco Zegarra Paredes and Yimy Sullón Yarleque as of 2 August 2021;
101. The facts described above demonstrate that PLAN RENTABLE breached Article 73, items d) and e) of the REGULATION, which states that the EAFC must communicate to the SMV any variation of the SPECIAL REGISTRY record
[35] Article 8.- Application for authorization to operate (…) e) Regarding those who will exercise the functions of directors, managers and attorneys-in-fact of the Administrator: 1. Documented Curriculum Vitae that proves professional capability or experience in economic, financial, accounting or related matters. Those who possess professional capability or experience shall be considered to be those who hold an academic degree linked to economic, financial, accounting or related matters, or who have performed, for a minimum period of two (2) years, management, executive or control functions. 2. Sworn Declaration of not being subject to the impediments indicated in Annex 1 of the Regulation and the commitment to inform the SMV of any modification that occurs in this declaration. The directors, managers and attorneys-in-fact of the Administrator must at all times, to the satisfaction of the SMV, have economic and moral solvency, in accordance with the provisions of Article 3 of the Regulation.
ESPECIAL, as well as the documentation corresponding to this variation, within a period of two days from the occurrence of the change or the becoming aware of it;
102. With respect to the prescription of the alleged act, it should be noted that the oldest observed act occurred on 31 July 2021, so the four years to determine the existence of an infringement, in accordance with Article 4236 of the SANCTIONS REGULATION, would prescribe on 31 July 2025; however, the charges were notified to PLAN RENTABLE on 1 December 2023, that is, before the aforementioned 31 July 2025, so the filing of the present charge was made within a timely period and, in that sense, the prescription of the alleged acts has not occurred;
103. As for the correction of the alleged acts, it should be noted that this will be analyzed at the time of evaluating the sanction to be imposed;
104. Therefore, PLAN RENTABLE incurred in one (1) infringement classified as minor, in accordance with Annex XIII, numeral 3, subsection 3.1 of the SANCTIONS REGULATION, according to which the following constitutes an infringement: “Not communicating those acts that entail a modification of the data of the record card of the registry of collective fund management companies, within the period granted by the SMV”;
SIXTH CHARGE: FAILURE TO PREPARE, IN ACCORDANCE WITH THE RULES GOVERNING ITS PREPARATION, THE INFORMATION TO WHICH THEY ARE OBLIGED BY THE REGULATIONS.
REGARDING THE BALANCES OF THE COMPANY'S BANK ACCOUNTS IN THE VERIFICATION BALANCE SHEET OF THE MANAGEMENT COMPANY
OF THE REGULATIONS
105. Regarding information systems, which includes the management company's accounting information system, the REGULATION establishes:
“Article 34.- Information system The Administrator's information system is the set of mechanisms and procedures used for the collection, administration, transmission of data and information, which it has implemented for the proper functioning, control and compliance with its activities and obligations. This information includes, among others, documentation, books and records.
The Administrator must have an effective information system. The Board of Directors and the General Management of the Administrator are responsible for implementing an information system in such a way that its effectiveness is reasonably ensured.
The Administrator's information system is considered effective, or its effectiveness has been reasonably achieved, when it allows for the processing and exchange of information on its operations for internal and external purposes, as well as the timely compliance with its information obligations.
[36] 36Article 42.- PRESCRIPTION The power to determine the existence of administrative infringements prescribes after four (4) years. (…)
The Administrator must implement an information system that considers the aspects set out below:
a) Documentation, books and records, at least those indicated in Annex 3.
b) Financial information.
(…).
d) Compliance with the rules governing the preparation and presentation of the preceding aspects.
(…)” (Underlining ours)
106. As regards the obligations to submit information to the SMV, including the financial information of the administrator company, the REGLAMENTO provides the following:
“Article 72.- Obligation to submit information The Administrator is obliged to submit any information established by regulation or required by the SMV, in accordance with the technical specifications and other rules issued in that regard, under the means, forms and at the time established by the SMV”;
107. Likewise, collective fund management companies, for the preparation of their financial statements, must comply with the provisions of the “International Financial Reporting Standards” (IFRS) and the “Conceptual Framework for Financial Reporting” (hereinafter, CONCEPTUAL FRAMEWORK);
108. Article 2 of the Financial Information Regulation approved by CONASEV Resolution No. 103-99-EF-94.10 (hereinafter, REGLAMENTO IF), states:
Article 2.- Generally Accepted Accounting Principles The financial statements must be prepared and presented in accordance with Generally Accepted Accounting Principles, accounting standards established by the Supervisory and Control Bodies and the rules of this Regulation.
Generally Accepted Accounting Principles are contained in the International Accounting Standards (IAS) officialized and in force in Peru and also comprise the technical pronouncements issued by the accounting profession in Peru.
In those circumstances where certain accounting operating procedures are not specifically regulated in any of the IAS, the criteria set forth in the conceptual framework of said standards must be applied, (…).
(…).”(Underlining ours);
109. Article 1 of the Standards on the preparation and presentation of Financial Statements and Annual Report by entities supervised by the Superintendency of the Securities Market, approved by SMV Resolution No. 016-2015-SMV-01 (hereinafter, the STANDARDS), establishes:
"Article 1.-Application of IFRS by obligated subjects Issuing companies with securities registered in the Public Registry of the Securities Market (RPMV), legal entities registered in the RPMV, collective fund management companies, and investment funds must prepare their financial statements in full observance of the International Financial Reporting Standards (IFRS), issued by the International Accounting Standards Board (IASB) internationally in force, and to the extent applicable, the Financial Information Regulation and the Manual for the preparation of Financial Information.
(…)"; 110. For its part, paragraph 15 of International Accounting Standard 1, "Presentation of Financial Statements" (IAS 1) and paragraphs 2.12, 2.13, 2.14, 2.18 and 2.21 of chapter 2 "Qualitative characteristics of useful financial information" of the Conceptual Framework for Financial Reporting of the International Financial Reporting Standards -IFRS (hereinafter, CONCEPTUAL FRAMEWORK37, in force at the date of the events, indicate:
"Fair presentation and compliance with IFRS 15 Financial statements shall present fairly the financial position, financial performance, as well as the cash flows of an entity. This fair presentation requires the faithful representation of the effects of the
[37] It should be noted that the provisions of IAS 1 have been incorporated in Resolution No. 001-2020-EF/30 of 14 July 2020 of the Accounting Standards Council, which officializes the Amendments to IAS 1 - Presentation of Financial Statements and the Complete Set of International Financial Reporting Standards 2020 version that includes the Conceptual Framework for Financial Reporting: "Fair presentation and compliance with IFRS 15 Financial statements shall present fairly the financial position, financial performance and cash flows of an entity. This fair presentation requires the faithful representation of the effects of transactions, as well as of other events and conditions, in accordance with the definitions and recognition criteria for assets, liabilities, income and expenses established in the Conceptual Framework for Financial Reporting (Conceptual Framework). It is presumed that the application of IFRS, accompanied by additional information when necessary, will result in financial statements that provide a fair presentation."
"Fundamental qualitative characteristics (…) Faithful representation 2.12 Financial reports represent economic phenomena using words and numbers. To be useful, financial information must not only represent relevant phenomena, but also faithfully represent the essence of the phenomena it purports to represent. In many circumstances, the essence of an economic phenomenon and its legal form are the same. If they are not, providing information only about the legal form would not faithfully represent the economic phenomenon (see paragraphs 4.59 to 4.62).
2.13 To be a perfectly faithful representation, a description would have three characteristics. It would be complete, neutral and free from error. Naturally, perfection is rarely, if ever, achievable. The Council's objective is to maximize those qualities as much as possible.
2.14 A complete description includes all the information necessary for a user to understand the phenomenon being represented, including all necessary descriptions and explanations. For example, a complete representation of a group of assets would include, at a minimum, a description of the nature of the assets in the group, a numerical description of all the assets in the group, and a description of what the numerical description represents (for example, historical cost or fair value). For some items, a complete description may also entail explanations of significant facts about the quality and nature of the items, the factors and circumstances that may affect their quality and nature, as well as the process used to determine the numerical description.
(…) 2.18 Faithful representation does not mean accuracy in all respects. Free from error means that there are no errors or omissions in the description of the phenomenon, and that the process used to produce the information presented has been selected and applied without errors. In this context, free from error does not mean perfectly accurate in all respects. For example, it cannot be said that an estimate of an unobservable price or value is accurate or that it is inaccurate. However, a representation of that estimate can be faithful if the amount is described clearly and accurately as such an estimate, the nature and limitations of the estimation process are explained, and no errors have been made in selecting and applying an appropriate process to develop the estimate.
(…) Application of the fundamental qualitative characteristics (…) 2.21The most efficient and effective processes for applying the fundamental qualitative characteristics would usually be as follows (subject to the effects of the enhancing characteristics and the cost constraint, which are not considered in this example). First, identify an economic phenomenon, information about which may be useful to users of the financial information of the reporting entity. Second, identify the type of information about that phenomenon that would be most relevant. Third, determine whether that information is available and whether it can provide a faithful representation of the economic phenomenon. If so, the process of satisfying the fundamental qualitative characteristics ends at that point. If not, the process is repeated with the next type of information that is most relevant.” transactions, as well as other events and conditions, in accordance with the definitions and recognition criteria for assets, liabilities, income and expenses established in the Conceptual Framework. It is presumed that the application of IFRS, accompanied by additional information when necessary, will result in financial statements that provide a fair presentation.
(…)
Fundamental qualitative characteristics
(…)
Faithful representation
2.12 Financial reports represent economic phenomena using words and numbers. To be useful, financial information must not only represent relevant phenomena, but also faithfully represent the essence of the phenomena it purports to represent. (…)
2.13 To be a perfectly faithful representation, a description would have three characteristics. It would be complete, neutral and free from error. Naturally, perfection is rarely, if ever, achievable. The Board's objective is to maximize those qualities as much as possible.
2.14 A complete description includes all the information necessary for a user to understand the phenomenon being represented, including all necessary descriptions and explanations. (…). For some items, a complete description may also entail explanations of significant facts about the quality and nature of the items, the factors and circumstances that may affect their quality and nature, as well as the process used to determine the numerical description.
(…)
2.18 Faithful representation does not mean accuracy in all respects. Free from error means that there are no errors or omissions in the description of the phenomenon, and that the process used to produce the information presented has been selected and applied without errors. In this context, free from error does not mean perfectly accurate in all respects. For example, it cannot be said that an estimate of an unobservable price or value is accurate or inaccurate. However, a representation of that estimate can be faithful if the amount is clearly and accurately described as such an estimate, the nature and limitations of the estimation process are explained, and no errors have been made in selecting and applying an appropriate process to develop the estimate.
(…)
Application of the fundamental qualitative characteristics
(…)
2.21 The most efficient and effective processes for applying the fundamental qualitative characteristics would usually be as follows (…). First, identify an economic phenomenon, information about which may be useful to users of the financial information of the reporting entity. Second, identify the type of information about that phenomenon that would be most relevant. Third, determine whether that information is available and whether it can provide a faithful representation of the economic phenomenon. If so, the process of satisfying the fundamental qualitative characteristics ends at that point. If not, the process is repeated with the next type of information that is most relevant;
OF THE FACTS
111. By means of Official Letter No. 656-2020-SMV/10.2 dated 11 February 202038, an inspection visit to PLAN RENTABLE was ordered, in order to evaluate compliance with the regulations applicable to the development of its functions in the administration of the collective funds system
112. As part of the inspection, the balances of the bank accounts maintained by the administering company in the financial entities and their respective book records for the period from January 2020 to February 2021 were reviewed, identifying differences between the balance according to the bank statements and the balances according to the Trial Balance, which were not explained or supported with the bank reconciliations requested by the SMV in the requirements made;
113. In response to this, by means of Official Letter No. 568-2022- SMV/10.239, notified on 9 February 2022 (hereinafter, OFFICIAL LETTER), the differences observed were communicated to PLAN RENTABLE;
114. Below are the cases presented in each bank account:
A. Regarding the balance of bank account BBVA No. 011-387-000100040293
115. The following differences were identified between the balance according to the bank statements and the balances according to the Trial Balance:
Table No. 5
| Period | According to statements (S/.) | According to Trial Balance Account 10411 (S/.) | Difference (S/.) |
|---|---|---|---|
| 31/01/2020 | 8,252.90 | 4,914.96 | 3,337.94 |
| 29/02/2020 | 26,721.16 | 18,607.80 | 8,113.90 |
| 31/03/2020 | 11,667.62 | 5,760.84 | 5,906.78 |
| 30/04/2020 | 17,668.55 | 10,861.77 | 6,806.78 |
| 31/05/2020 | 21,317.91 | 15,411.13 | 5,906.78 |
| 30/06/2020 | 37,391.62 | 31,484.84 | 5,906.78 |
| 31/07/2020 | 2,070.53 | -3,836.25 | 5,906.78 |
| 31/08/2020 | 13,101.89 | 7,195.11 | 5,906.78 |
| 30/09/2020 | 3,177.82 | 3,705.87 | 6,883.69 |
| 31/10/2020 | 457,449.54 | 392,534.76 | 64,914.78 |
| 30/11/2020 | 2,128.43 | 1,384.72 | 743.71 |
116. PLAN RENTABLE, during the inspection, for the months of January to November 2020 presented its Excel file format of the General Ledger “Format 6.1 General Ledger - MN” of accounting account 10411 Banco Continental MN whose balances are the same as those recorded in the bank statements;
117. Subsequently, it delivered as bank reconciliation formats an Excel file for each of these months, in whose content the same format as the aforementioned General Ledger is observed; but
[38] File No. 2020004788.
[39] File No. 2020004788.
without a title identifying the content40. At the bottom of said format, a summary is presented showing that the closing balance of each month according to accounting books (based on the balance of the detailed movements) is the same as the balance recorded in the bank statements; that is, no differences are presented, which does not agree with the results obtained in Table No. 5;
118. It should be noted that in the General Ledger and bank reconciliation formats, it is observed that the movements or records of the accounting account are the same as the movements of the bank statements, identified by their operation number. Based on the foregoing, the accounting balance that PLAN RENTABLE presented to the SMV according to its General Ledger and its bank reconciliation format at the close of the indicated periods, showed differences with respect to the accounting balances recorded in its Trial Balance;
119. Consequently, the bank reconciliations presented by PLAN RENTABLE did not explain the differences between the accounting balances and the balances of the bank statements determined in Table 5;
120. Subsequently, after the completion of the inspection and notification of the OFFICIAL LETTER, PLAN RENTABLE presented an Excel detail with the amounts or items that make up the differences shown in table 5, which it indicates correspond mainly to checks issued and not collected; and in the month of October 2020, in addition to that, to disbursements that were recorded by PLAN RENTABLE; but not by the bank;
121. Likewise, in the relationship sent, it indicated as “bank charges not recorded in books” an expense to be identified for S/ 561.15 in the month of January 2020, and another for S/. 976.91 for the month of February 2020 which was maintained until August 2020;
122. Based on the foregoing, at the date of the inspection the accounting balances of the bank account recorded in the Trial Balance of PLAN RENTABLE were not reconciled with their respective bank statements; since differences were identified between these balances, which were not explained with the bank reconciliation formats presented, which included an accounting balance consistent with the General Ledger format; but different from that recorded in the Trial Balance. As indicated, the differences observed were addressed subsequently, after the OFFICIAL LETTER;
B. Regarding the balance of the BBVA bank account No. 011-387-000100040307
123. The following differences were identified between the balance according to the bank statements and the balances according to the Trial Balance:
Table No. 6
[40] The content includes for accounting account 10411 Banco Continental MN the initial balance, the debit and credit movements and the final balance.
PERÚ Ministry of Economy and Finance
SMV
Superintendency of the Market of 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"
| Period | According to statements of accounts (USD) | According to Trial Balance41 Accounting account 10412 (USD) | Difference (USD) |
|---|---|---|---|
| 31/10/2020 | 34,848.09 | 38,966.52 | -4,118.43 |
| 30/11/2020 | 9,189.78 | 13,229.81 | -4,040.03 |
124. PLAN RENTABLE, during the inspection, for the months of October and November 2020, presented its Excel file format of the General Ledger “Format 6.1 General Ledger - ME” of accounting account 10412 Banco Continental ME whose balances for the months of October and November 2020 amount to US$ 34,913.16 and US$ 9,189.78. Regarding these balances, for the month of October 2020 a difference of US$ 65.07 is observed, with respect to the balance recorded in its bank statement;
125. Subsequently, it delivered as bank reconciliation formats an Excel file for each of these months, in whose content a format similar to the General Ledger indicated above is observed; but without a title that identifies the content42, and whose balances for the months of October and November 2020 amount to US$ 34,848.09 and US$ 9,189.78;
126. At the bottom of said format, a summary is presented that shows that the closing balance of each month according to accounting books (based on the balance of the detailed movements), is the same as the balance recorded in the bank statements; that is, no differences are presented, which does not agree with the results obtained in Table 6;
127. In its response to the OFICIO regarding the differences observed in Table No. 6, PLAN RENTABLE presented other bank reconciliation formats in Excel according to which, the balance of accounting account 10412 Banco Continental ME amounts to USD 34,848.09 and USD 9,189.78 for the months of October and November 2020, respectively. Said amounts agree with the balances for these months of its Excel file format of the General Ledger “Format 6.1 General Ledger - ME” for the referred accounting account, which were additionally also presented by the administering company at this opportunity;
128. Consequently, the accounting balances that PLAN RENTABLE presented to the SMV, according to its General Ledger and bank reconciliation at the close of the indicated periods, showed differences with respect to the accounting balances recorded in its Trial Balance;
129. In that sense, in the bank reconciliations it is observed that the balance according to accounting books is the same as that recorded in the bank statements at the close of these months, that is, differences to be explained are no longer presented, which again differs with the results obtained in Table No. 6;
130. Based on the indicated, at the date of the inspection the accounting balances of the bank account recorded in the Trial Balance of
[41] The balances of the Trial Balance of Plan Rentable are in national currency, taking into account that the original currency of this bank account is in dollars, the balances were converted to this currency using the buying exchange rate published by the SBS at the close of these months.
[42] The content includes for accounting account 10412 Banco Continental ME the initial balance, the debit and credit movements and the final balance.
Trial Balance of PLAN RENTABLE, were not found reconciled with their respective bank statements; since differences were identified between these balances, which were not explained with the bank reconciliation formats presented. Likewise, the differences observed were also not explained with the bank reconciliations presented after the OFICIO, which included an accounting balance consistent with the General Ledger format presented at this opportunity; but different from that recorded in the Trial Balance;
C. Regarding the balance of the Interbank bank account No. 291-3002106944
131. The following differences were identified between the balance according to the bank statements and the balances according to the trial balance:
Table No. 7
| Period | According to statements (S/.) | According to Trial Balance - Accounting account 10413 (S/.) | Difference (S/.) |
|---|---|---|---|
| 30/11/2020 | 1,366.83 | 85.40 | 1,281.43 |
| 31/12/2020 | 1,366.83 | 85.40 | 1,281.43 |
| 31/01/2021 | 1,113.73 | 85.40 | 1,028.33 |
| 28/02/2021 | 1,113.73 | 85.40 | 1,028.33 |
132. PLAN RENTABLE during the inspection, presented its Excel file format of the General Ledger “Format 6.1 General Ledger - MN” of accounting account 10413 Banco Interbank MN, whose balances are S/. 1,366.83; S/. 1,366.83; S/. 1,113.73 and S/. 1,113.73 for the months of November and December 2020, and January and February 2021, respectively;
133. Subsequently, it delivered as bank reconciliation formats an Excel file for each of the months of November and December 2020, and January and February 2021, in whose content the same format as the General Ledger indicated above is observed; but without a title that identifies the content43. At the bottom of said format, a summary is presented that shows that the closing balance of each month according to accounting books is the same as the balance recorded in the bank statements44; that is, no differences are presented, which does not agree with the results obtained in Table 7;
134. Based on the indicated, the accounting balance that PLAN RENTABLE presented to the SMV, according to its General Ledger and its bank reconciliation format at the close of the indicated periods, showed differences with respect to the accounting balances recorded in the Trial Balance;
135. Consequently, in the bank reconciliation formats presented by PLAN RENTABLE, they did not explain the differences between the accounting balances and the balances of the bank statements determined in Table No. 7;
[43] The content includes for accounting account 10413 Banco Interbank MN 291-3002106944 the initial balance, the debit and credit movements and the final balance.
[44] For the month of November 2020, in said summary it is recorded that the balance according to accounting books and the bank statement is S/. 1,363.83.
136. It should be noted that PLAN RENTABLE did not comment regarding the differences in Table No. 7 observed through the OFICIO;
137. Based on the foregoing, as of the date of the inspection, the accounting balances of the bank account recorded in the Trial Balance of PLAN RENTABLE were not reconciled with their respective bank statements; since differences were identified between these balances, which were not explained with the bank reconciliation formats presented; nor subsequently, since the administering company did not respond to the observations raised in the OFICIO. Likewise, differences were presented between the balances presented in the General Ledger format, with respect to the balances recorded in the Trial Balance;
D. Regarding the balance of accounting account 10414 Interbank ME
138. In the Trial Balance, the accounting account with code 10414 Interbank ME was identified, which was not reported as part of the company's active accounts and for which, PLAN RENTABLE during the inspection, did not present the bank reconciliation formats, nor the corresponding bank statements, which was observed through the OFICIO;
139. Below are the balances presented in the Trial Balance, constituting balances not supported by bank statements or bank reconciliations:
Table No. 8
| Balance of accounting account 10414 INTERBANK in ME | ||
|---|---|---|
| Period | PEN45 | USD46 |
| 29/02/2020 | 2,485.04 | 720.72 |
| 31/03/2020 | 38,849.13 | 11,316.38 |
| 30/04/2020 | 38,204.10 | 11,316.38 |
| 31/05/2020 | 38,803.87 | 11,316.38 |
| 30/06/2020 | 39,992.09 | 11,316.38 |
| 31/07/2020 | 39,992.09 | 11,354.94 |
| 31/08/2020 | 39,992.09 | 11,290.82 |
| 30/09/2020 | 39,992.09 | 11,124.36 |
| 31/10/2020 | 40,852.13 | 11,316.38 |
| 30/11/2020 | 40,772.92 | 11,316.38 |
| 31/12/2020 | 42,751.66 | 11,816.38 |
| 31/01/2021 | 43,124.52 | 11,860.43 |
| 28/02/2021 | 43,254.99 | 11,860.43 |
140. In response to the OFICIO, PLAN RENTABLE presented for accounting account 10414 the bank statements corresponding to the bank account at Interbank No. 291-3002294014 in US dollars for the month of April 2020 and for the period between June and December 2020. When comparing
[45] The balances presented in the Trial Balance of Plan Rentable are in national currency.
[46] Taking into account that the original currency of this bank account is in dollars, the balances were converted to this currency using the buying exchange rate published by the SBS at the close of these months.
these balances with those of the Trial Balance considering the equivalent balance in US dollars for these months, the following differences are obtained47:
Table No. 9
| Period | According to bank statements (ME) | According to Trial Balance Accounting account 10414 (ME) | Difference (ME) |
|---|---|---|---|
| 29/02/2020 | 720.72 | ||
| 31/03/2020 | 11,316.38 | ||
| 30/04/2020 | 12,898.02 | 11,316.38 | 1,581.64 |
| 31/05/2020 | 11,316.38 | ||
| 30/06/2020 | 12,898.02 | 11,316.38 | 1,581.64 |
| 31/07/2020 | 12,898.02 | 11,354.94 | 1,543.08 |
| 31/08/2020 | 12,898.02 | 11,290.82 | 1,607.20 |
| 30/09/2020 | 13,231.36 | 11,124.36 | 2,107.00 |
| 31/10/2020 | 13,231.36 | 11,316.38 | 1,914.98 |
| 30/11/2020 | 13,231.36 | 11,316.38 | 1,914.98 |
| 31/12/2020 | 13,231.36 | 11,816.38 | 1,414.98 |
| 31/01/2021 | 11,860.43 | ||
| 28/02/2021 | 11,860.43 |
141. Likewise, in the bank reconciliation formats submitted by PLAN RENTABLE, it is observed that the book balance for the months of March to July 2020 is US$ 12,898.02, and for the months of September, November and December 2020 it is US$ 13,231.36, which matches its Excel file format of the General Ledger “Format 6.1: General Ledger – M.E.” for these months, which it also submitted in its response; that is, according to the bank reconciliations submitted and its General Ledger, no differences are identified between the book balances and the balances of the bank statements submitted, which differs from the results obtained in Table No. 9;
142. In that sense, PLAN RENTABLE did not explain in its bank reconciliation format that it submitted for the months of March to July 2020, September, November and December 2020, the differences shown in Table 9;
143. Likewise, the book balance that PLAN RENTABLE submitted to the SMV, according to its General Ledger for these months, showed differences with respect to the book balances recorded in the Trial Balance;
144. For its part, PLAN RENTABLE did not submit the bank statements for the months of February, March and May 2020, and for
[47] In order for the differences shown in Table 9 not to occur, the exchange rate applied in the conversion of the balances would have to be quite low, compared to those that actually are, according to what was obtained from the SBS portal.
January and February 2021, nor the bank reconciliations for the months of February, August48, October49 of 2020 and for January and February 2021;
145. Based on the foregoing, at the date of the inspection, the aforementioned book balances recorded in the Trial Balance of PLAN RENTABLE were not supported. Likewise, the differences obtained in Table No. 9, based on the bank statements submitted by PLAN RENTABLE after the OFICIO, were not explained with its bank reconciliations, which included a book balance that they supported with the General Ledger format that they submitted; but different from the one recorded in the Trial Balance50;
146. According to the foregoing, the situations described in items A, B, C and D, show that the accounting information system of PLAN RENTABLE has deficiencies, since it does not allow adequate control of the information related to the bank balances it maintains and that must be reflected in its accounting, that is, in its books and accounting records. In this regard, there have been deficiencies in the processing of the information incorporated into the accounting, and therefore, in the balances of the aforementioned accounts in the accounting books, specifically in the General Ledger, and in the Trial Balance, whose balances are the basis for the preparation of the financial statements, which must reasonably present the financial situation of PLAN RENTABLE, which requires a faithful presentation of the book balances;
147. It should be noted that adequate processing of accounting information allows accounting, books and accounting records to be kept and maintained up to date, and that the balances presented can be supported, with the records and supporting documentation and do not have differences or that they can be explained in a timely manner, which as mentioned, has not occurred in the present case.
148. In this sense, PLAN RENTABLE was charged with not having prepared its financial information observing that it has a faithful representation of the economic facts, that is, that it complies with being complete and free of error, since as demonstrated in the previous recitals, among other observations, the inspection detected book balances of the bank accounts in the Trial Balance that were not reconciled with the bank statements, identifying differences between these balances that were not explained with the bank reconciliation formats submitted by the managing company; and in another case, the managing company did not submit bank reconciliations or the corresponding bank statements;
149. In this regard, it should be noted that in some cases, the differences and documentation not submitted were addressed with the notification of OFICIO; however, as described, there were cases that, even with the information provided, remained with differences to be reconciled or explained; and in another case, the differences observed were not addressed. Likewise, from the documentation submitted by the managing company, different balances were evidenced for the same accounting account in the Trial Balance books and the General Ledger;
[48] The Excel file submitted as bank reconciliation and General Ledger for August 2020, indicates in its content that the information corresponds to the period September 2020.
[49] The Excel file submitted as bank reconciliation and General Ledger for October 2020, indicates in its content that the information corresponds to the period September 2020.
[50] Considering the buying exchange rate at the close of each month published by the SBS
150. Consequently, PLAN RENTABLE would have breached the provisions of article 34 and 72 of the REGLAMENTO, article 2 OF THE REGLAMENTO IF, article 1 of the NORMAS, paragraph 15 OF IAS 1 and paragraphs 2.12, 2.13, 2.14, 2.18 and 2.21 of the CONCEPTUAL FRAMEWORK, in force at the date the events occurred;
ON THE DEFENSES SUBMITTED
151. In relation to this imputed fact, PLAN RENTABLE states that it cannot refute the imputed charge since, after reviewing its physical files, it indicates that the formulated imputation is correct and PLAN RENTABLE is at fault. PLAN RENTABLE adds that it submits to what the SMV has indicated, therefore, it accepts and acknowledges the committed infraction and that it is indicated in the imputed charge; likewise, it requests that what has been stated be considered for the first charge;
EVALUATION OF THE DEFENSES
152. In accordance with the defenses presented, PLAN RENTABLE acknowledges the commission of the imputed infraction. In this regard, it has been proven in the record that PLAN RENTABLE did not prepare its financial information observing that it has a faithful representation of the economic facts, that is, that it complies with being complete and free of error, since as has been demonstrated, from the review of the bank accounts and their recording in the Trial Balance, in inspection51, balances recorded in the Trial Balance were detected, which were not supported, or reconciled with their bank statements, identifying differences between these balances that were not explained with the bank reconciliation formats presented by the administering company. Likewise, different accounting balances were identified for the same account in the Trial Balance and the General Ledger books;
153. Additionally, with the information received in response to Oficio N° 568-2022-SMV/10.252 notified on 9 February 2022, balances of the bank accounts were maintained in the Trial Balance of PLAN RENTABLE, without supporting or reconciling them. Likewise, there were requests for information that were not attended to;
154. It must be taken into account that the accounting balances, such as the balances of the Trial Balance and the General Ledger, are the basis for the preparation of the Financial Statements, which must reasonably present the financial situation, which requires a faithful presentation of the balances, and as has been demonstrated, this did not occur in this case;
155. It should be added that PLAN RENTABLE, as the administering company of collective funds at the date of the inspection, should have implemented and maintained an effective accounting information system that considers compliance with the rules governing the preparation and presentation of its financial information, as well as its books and accounting records;
156. In relation to the prescription of the imputed fact, it should be noted that the oldest observed fact occurred with respect to the accounting balances of the bank accounts of PLAN RENTABLE as of 31 January 2020, for
[51] By means of Oficio N° 924-2021- SMV/10.2 of 5 March 2021, it was ordered to resume the inspection visit to Plan Rentable Perú S.A.C. EAFC, which included the review of the period from 01 January 2020 to 28 February 2021.
[52] By means of file N° 2020004788.
which the four years to determine the existence of an infraction, in accordance with article 42 of the REGLAMENTO DE SANCIONES, would prescribe on 31 January 2024; however, the imputation of charges was notified to PLAN RENTABLE on 1 December 2023, that is, before the indicated prescription date, therefore, the imputation of the present charge was made in a timely manner and, in this sense, the prescription of the alleged facts has not occurred;
157. As regards the remediation of the imputed facts, it should be noted that this will be analyzed at the time of evaluating the sanction to be imposed;
158. For the foregoing, PLAN RENTABLE incurred an infraction classified as serious, in accordance with Annex I, numeral 2, subsection 2.2 of the REGLAMENTO DE SANCIONES, in force at the time the facts occurred, which establishes as an infraction of a serious nature “Not preparing, in accordance with the rules governing its preparation, the information to which they are obligated by the regulations or by requirement of the SMV”;
SEVENTH CHARGE: FAILURE TO COMPLY WITH THE CHART OF ACCOUNTS OF THE COLLECTIVE FUND OF THE REGULATIONS
159. In this regard, it must be taken into account that the REGLAMENTO establishes the obligation of the administering company to submit to the SMV the financial information on its administered collective funds.
“Article 74.- Information on administered Collective Funds The Administrator must send to the SMV the following:
a) Interim financial information corresponding to the close of each month, in accordance with the provisions of the Chart of Accounts of Collective Funds, within thirty (30) calendar days following each of them.
(…);
160. Likewise, it establishes that collective funds must have their own accounting as an entity separate from the administrator.
Article 75.- Accounting The accounting of the Collective Funds must be kept separately from the accounting of the Administrator and allow identifying the information corresponding to each Group, in accordance with the provisions of the Chart of Accounts of Collective Funds. The IT structure of the Administrator must allow obtaining the information referred to in the preceding paragraph automatically.”;
161. As regards information systems, which include the accounting information system, the REGLAMENTO establishes:
Article 34.- Information system The information system of the Administrator is the set of mechanisms and procedures used for the collection, administration, transmission of data and information, which it has implemented for an adequate operation, control and compliance with its activities and obligations. This information includes, among others, documentation, books and records.
The Administrator must have an effective information system. The board of directors and the General Management of the Administrator are responsible for implementing an information system, in such a way as to reasonably ensure its effectiveness.
The information system of the Administrator is considered effective or that its effectiveness has been reasonably achieved when it allows the processing and exchange of information on its operations for internal and external purposes, as well as the timely fulfillment of its information obligations.
The Administrator must implement an information system that considers the aspects indicated below:
a) Documentation, books and records, at least those indicated in Annex 3.
b) Financial information.
(…)
d) Compliance with the rules governing the preparation and presentation of the preceding aspects.
(…)
Annex 3
Components of the Information System
(…)
It is the responsibility of the Administrator to keep and maintain up to date the accounting of the Collective Funds it administers, as well as the following books and records, which must be available to the SMV:
1. In relation to the System it administers:
a) Journal, in which the operations carried out are detailed and the accounting movements of each Group are clearly identified.
b) Ledger, in which each of the accounts that make up the Assets, Liabilities, Equity, Income and Expenses of each Group are presented.
(…);
162. Additionally, the Chart of Accounts for Collective Funds, approved by SMV Resolution No. 006-2015-SMV-01 (hereinafter, CHART OF ACCOUNTS), establishes the following:
CHART OF ACCOUNTS FOR COLLECTIVE FUNDS
This Chart of Accounts for Collective Funds is mandatory for the accounting of said funds in order to maintain adequate control of their operations and to have an orderly and standardized accounting system for the collective funds system.
(…)
ACCOUNT: 10 CASH
(…)
NOMENCLATURE OF THE SUBACCOUNTS
(…)
103 Bank accounts
1031 Collection account
1032 Operating Account 1033 Contribution refund account 1034 Groups in formation account (…)
COMMENTS
(…)
The balances of bank accounts in the books must be subject to monthly reconciliation with the bank statements. Any difference must be analyzed and regularized.
(…)
ACCOUNT: 42 ACCOUNTS PAYABLE
CONTENT
It groups the subaccounts that represent obligations with the Administrator, for the liquidation of collections pending transfer and others related to its activity.
NOMENCLATURE OF THE SUBACCOUNTS
421 Accounts payable to the Administrator 4211 Registration Fees (…)
COMMENTS
The dynamics of account 421 will apply for the recording of periodic collections made from members, and the amounts corresponding in favor of the Administrator must be recognized.
(…);
A. REGARDING THE BALANCES OF THE BANK ACCOUNTS OF THE TRIAL BALANCE OF THE COLLECTIVE FUNDS SYSTEM
FACTS
163. As part of the inspection, the balances in the bank statements and their respective recording in the trial balance of the collective fund for the period from January 2020 to February 2021 53 were reviewed, identifying the following observations:
a.1 Regarding the balance of the bank accounts at Interbank No. 291-3002294030, No. 291-3002107001 and No. 291-3002294014
164. The balances were compared, in the bank statements and in the trial balance, for each of the following accounts at Interbank in United States dollars:
[53] Additionally, in accordance with the provisions of article 74 of the Regulation, the administering company presents monthly financial information for the collective funds system.
Table No. 10
| Type of bank account | Account No. |
|---|---|
| Groups in Formation Account | 291-3002294030 |
| Collection Account | 291-3002107001 |
| Group Liquidation Account | 291-3002294014 |
165. As a result, the detail of the aforementioned accounts was not evidenced in the Trial Balance of the collective funds system, so it was not possible to compare the accounting balances of these accounts with the bank statements provided, which was notified to PLAN RENTABLE through the OFICIO.PLAN RENTABLE in its response to the OFICIO, indicated the following:
“Of the following accounts mentioned, of the balances of this account. It is recorded in the system's accounting, only it is not differentiated from the rest of the accounts maintained at Interbank, these balances are recorded under the name “Interbank Collection Account”, according to information sent in the trial balances.
Interbank Account 291-3002294030
Interbank Account 291-3002107001
Interbank Account 291-3002294014
A table is attached taking as reference the months of April, May, June 2020
| Apr-20 | May-20 | Jun-20 | |
|---|---|---|---|
| Interbank Account 291-3002294030 | 500.00 | 500.00 | 500.00 |
| Interbank Account 291-3002107001 | 44 999.62 | 1 293.44 | 1 962.51 |
| Interbank Account 291-3002294014 | 12 898.02 | 12 898.02 | 12 898.02 |
| Balances according to EC | 58 397.64 | 14 691.46 | 15 360.53 |
| Balances according to EEFF | 58 397.64 | 14 691.46 | 15 360.53 |
Source: Plan Rentable Letter of 18-03-2022
166. When considering what was indicated by PLAN RENTABLE, the result obtained from the sums of the balances of the bank account statements, and the balances of the Trial Balance for each month, would be the following:
Table No. 11
| Period | According to account statements (USD) | According to Trial Balance Accounting account 103401 (USD) | Difference (USD) |
|---|---|---|---|
| 29/02/2020 | 18,591.27 | 0.00 | 18,591.27 |
| 31/03/2020 | 58,603.36 | 0.00 | 58,603.36 |
| 30/04/2020 | 58,397.64 | 58,397.64 | 0.00 |
| 31/05/2020 | 14,691.46 | 14,691.46 | 0.00 |
| 30/06/2020 | 15,360.53 | 15,354.53 | 6.00 |
| 31/07/2020 | 15,092.67 | 15,880.26 | -787.59 |
| 31/08/2020 | 14,943.58 | 15,813.52 | -869.94 |
| 30/09/2020 | 25,304.74 | 21,452.88 | 3,851.86 |
| Period | According to account statements (USD) | According to Trial Balance - Account 103401 (USD) | Difference (USD) |
|---|---|---|---|
| 31/10/2020 | 34,855.77 | 34,855.77 | 0.00 |
| 30/11/2020 | 19,493.72 | 22,549.90 | -3,056.18 |
| 31/12/2020 | 16,164.85 | 16,516.55 | -351.70 |
| 31/01/2021 | 28,435.30 | 32,638.84 | -4,203.54 |
| 28/02/2021 | 15,726.48 | 32,638.84 | -16,912.36 |
Source: Sum of the balances of the bank account statements of accounts No. 291-3002294030, No. 291-3002107001 and No. 291-3002294014
167. Consequently, in the accounting of the collective fund, PLAN RENTABLE, it would have recorded in one (1) bank accounting account, the balance of 3 different bank accounts, which does not allow adequate control of the movements and balances of each one, that is, the control of the collective fund's resources held in each of these bank accounts, which have different purposes, and which must be controlled separately in accordance with the provisions of the CHART OF ACCOUNTS;
168. Additionally, as shown in Table No. 11, following the example proposed by PLAN RENTABLE, only the differences for the months of April, May, and October 2020 are explained, while the differences for the other months persist. In this regard, PLAN RENTABLE has not explained the differences obtained in Table No. 11;
169. Based on the foregoing, as of the inspection date, the balances of the collective fund's bank accounts: Group Settlement, groups in formation and collecting account were not individually recorded in the accounting of the collective fund. Additionally, their balances were not reconciled with their respective bank account statements, presenting differences that have not been explained, so PLAN RENTABLE would have breached account 10 of the CHART OF ACCOUNTS;
a.2. Regarding the balance of the bank account at BBVA No. 011 387 000100040315 82
170. During the inspection, the following observations were also identified after comparing the balances of the account statements against the balances of the Trial Balance:
Table No. 12
| Period | According to account statements (USD) | According to Trial Balance - Account 103111 (USD) | Difference (USD) |
|---|---|---|---|
| 31/01/2020 | 32,951.06 | 24,512.27 | 8,438.79 |
| 30/09/2020 | 33,188.80 | 16,325.00 | 16,863.80 |
171. The differences identified in the preceding table were notified through the OFICIO. In its response, PLAN RENTABLE attached a detail of the differences;
172. For the month of January 2020, it indicated that the difference is composed of a check pending collection for USD 1 376.64; and a series of "credits in banks not considered in books", for a total amount of USD 7 062.15. In this regard, in the aforementioned detail, the credits have no description of each operation and no comment from the administering company explaining why it did not record these operations;
173. Regarding the month of September 2020, PLAN RENTABLE indicated that the difference corresponds to a series of "credits in banks not considered in books" for collections pending identification for a total amount of USD 25 708.14. Additionally, it should be noted that the figure of USD 25,708.14 indicated by the administering company does not match the observed difference;
174. The existence of unrecorded items in books pending identification demonstrates that the accounting balances were not duly reconciled with their bank account statements. Additionally, taking into account that they correspond to collections pending identification and that it is a collecting bank account, in which the fees paid by members are deposited, these could be unrecognized payments from members. It should be remembered that the objective of a monthly bank reconciliation is that once the differences between bank and accounting balances are identified, their analysis and regularization are carried out, as indicated by the CHART OF ACCOUNTS;
175. Based on the foregoing, as of the inspection date, the referred accounting balances recorded in the Trial Balance of the collective fund were not reconciled with their respective bank account statements, since differences were identified between these balances, which in response to the OFICIO were explained as credits or collections pending identification not recorded in books, so PLAN RENTABLE would have breached account 10 of the CHART OF ACCOUNTS;
a.3. Regarding the balance of the bank account at BBVA No. 011 387-000200291803
Table No. 13
Period
| According to account statements (USD) | According to Trial Balance – Account 103112 (USD) | Difference (USD) | |
|---|---|---|---|
| 31/01/2020 | 3,320.06 | 1,799.29 | 1,520.77 |
176. The observation in Table No. 13 was notified through OFFICIAL LETTER A PLAN RENTABLE, which indicated that the difference is due to credits received in the bank account that were not considered in the fund's accounting for the total amount of US$ 1,520.77, for which it attached the following detail:
| 011-387-00200291803-81 | |||||
|---|---|---|---|---|---|
| BANK CREDITS NOT CONSIDERED IN ACCOUNTING | |||||
| 15-03 | PLAN RENTABLE 012-10-QUOTA-21 | BCA. INTERNET | BIEN | 9341 | 88.17 15-11 |
| 00030837765GENOVEVA CABANA QUISCA OF. EL PEDREG | VEN | 11315 | 150.00 06-04 | ||
| 360210310MONTHLY FEE | OPEN OFFICE | VEN | 9480 | 100.00 04-03 | |
| 360210310MONTHLY FEE | OPEN OFFICE | VEN | 9195 | 100.00 07-05 | |
| 360210310MONTHLY FEE | 360210310MONTHLY FEE OPEN OFFICE | 9756 | 100.00 04-01 | ||
| 360210310MONTHLY FEE | OPEN OFFICE | VEN | 8661 | 400.00 29-10 | |
| 600117702MONTHLY FEE | OF. SN MARTIN | VEN | 11135 | 388.4 | |
| 20-01 | CASH DEPOSIT | OF PANDO | VEN | 11850 | 194.2 |
| $ 1,520.77 |
177. However, as can be verified in the same table, with the exception of the credit of 20 January 2020 for USD 194.20, which has operation number 11850, it is observed that the other credits would correspond to operations carried out much earlier than January 2020 (by the operation number);
178. Based on the above, in the accounting of the collective fund, reconciling items would have been kept unanalyzed or unrecorded for several months, evidencing once again deficiencies in controls and in the processing of information, therefore PLAN RENTABLE would have failed to comply with account 10 of the CHART OF ACCOUNTS;
Regarding the balance of the Interbank bank account No. 291-3002316310
Table No. 14
| Period | According to account statements (PEN) | According to Trial Balance (PEN) | Difference (PEN) |
|---|---|---|---|
| 30/11/2020 | 1,689.35 | 0.00 | 1,689.35 |
| 31/12/2020 | 1,691.39 | 0.00 | 1,691.39 |
| 31/01/2021 | 1,677.34 | 0.00 | 1,677.34 |
| 28/02/2021 | 1,677.34 | 0.00 | 1677.34 |
179. PLAN RENTABLE during the inspection, presented its Excel file format of the General Ledger “Format 6.1 General Ledger - MN” of accounting account 10414 Banco Interbank MN 291-3002316310, whose balances are S/. 1,689.35; S/. 1,691.3954; S/. 1,677.34 and S/. 1,677.34 for the months of November and December 2020, and January and February 2021, respectively;
180. Subsequently, it delivered as bank reconciliation formats an Excel file for each of these months, in whose content the same format as the aforementioned General Ledger is observed; but without a title identifying the content55. At the bottom of said format, a summary is presented showing that the closing balance of each month according to accounting books (based on the balance of detailed movements) is the same as the balance recorded in the bank statements; that is, no differences are presented, which does not agree with the results obtained in Table No. 14;
[54] The file delivered as the month of December with this balance, in the title identifies as period November 2020.
[55] The content includes, for accounting account 10414 Banco Interbank MN 291-3002316310, the initial balance, debit and credit movements, and the final balance.
181. However, although PLAN RENTABLE presented the mentioned files, in the Trial Balance of the collective funds system no accounting account was found corresponding to bank account Interbank No. 291-3002316310;
182. Based on the indicated, regarding this bank account, during the inspection the balances of the bank statements were compared with the balances of the Trial Balance of the collective fund; however, no accounting account was identified with which the bank balances could be reconciled; that is why these observed differences were notified through the OFICIO;
183. However, PLAN RENTABLE did not comment on these differences, so they were not explained, therefore PLAN RENTABLE would have breached account 10 of the CHART OF ACCOUNTS;
a.4. Regarding the balance of bank account BBVA No. 011 387 000100041354 80
184. The following difference was identified between the balance according to the bank statements and the balances according to the trial balance of the collective fund:
Table No. 15
Period
| According to account statements (USD) | According to Trial Balance accounting account 103211 (USD) | Difference (USD) | |
|---|---|---|---|
| 31/01/2020 | 133,230.44 | 76,179.42 | 57,051.02 |
185. In that sense, the bank reconciliation format presented by PLAN RENTABLE was reviewed, to review what would explain the difference;
186. However, according to the referred format, the balance in accounting books at the close of January 2020 is the same as in the bank statements, that is USD 133 230.44; with which there was no difference to explain, which does not relate to the difference obtained in Table 15;
187. It should be noted that PLAN RENTABLE also presented its Excel file format of the General Ledger of the collective fund “Format 6.1: General Ledger - ME” for the period January 2020 for account 103211 BCO. BBVA No. 011-387-000100041354-80, in which the accounting balance amounts to US$ 133,230.44;
188. Based on the indicated, the accounting balance that PLAN RENTABLE presented to the SMV, according to the General Ledger and bank reconciliation at the close of January 2020, showed differences with respect to the accounting balances recorded in the Trial Balance of the collective fund;
189. The difference observed in Table No. 15 was notified to PLAN RENTABLE through the OFICIO. In this regard, PLAN RENTABLE presented a detail with the amounts and descriptions that would make up the differences shown in table 15, indicating that they correspond to checks issued and not collected as of 31 January 2020, as set out:
Table No. 16
Source: Written document of 18-03-2022
CHECKS ISSUED AND NOT COLLECTED JANUARY - 2020 Date doc. Check Business Name Amount $ Month Typ. Lib. No. Entry RUC/DNI No. No. Voucher 16/01/2019 01 14 0097 CH 276 3601-040-10 CIMENTO INGENIERIA CONSTRUCCION Y SERVICIOS S.A.C. REFUND OF RESOLVED CONTRACT 3601-040-10 CH-276 675.75 16/01/2019 01 14 0098 CH 278 3601-060-10 C & M INDUSTRIAL PERU S.A.C. REFUND OF RESOLVED CONTRACT 3601-060-10 CH-278 16.58 15/11/2019 11 14 0059 CH 532 6004-125-01 LUIS EDUARDO PORRAS FRANK REFUND OF CONTRIBUTIONS 6004-125-01 CH-532 48.68 15/11/2019 11 14 0062 CH 535 21415506 MINAS DE YSHII FLAVIA BENEDICTA SETTLEMENT OF CONTRIBUTIONS 3604-082-10 CH-535 4,106.47 19/11/2019 11 14 0068 CH 541 6001-010-02 INGA FELIPE, MIGUEL AQUILES SETTLEMENT OF CONTRIBUTIONS 6001-010-02 CH-541 1,666.65 03/01/2020 01 14 0054 CH 558 6005-055-01 LOPEZ RAMOS, YANINA ABIGAIL OPERATING ACCOUNT 536.89 22/01/2020 01 14 0069 CH 573 6005-053-01 PEREZ RAMOS , GILMER FEDERICO OPERATING ACCOUNT 944.00 28/01/2020 01 14 0073 CH 577 6001-141-02 CESAR WILDER CONTRERAS VASQUEZ OPERATING ACCOUNT 14,000.00 31/01/2020 01 14 0079 CH 584 6004-026-02 MAGUIÑA CASTILLO, PEDRO EZEQUIEL OPERATING ACCOUNT 6,000.00 27/01/2020 01 14 0071 CH 575 6001-064-03 CESAR WILDER CONTRERAS VASQUEZ OPERATING ACCOUNT 10,000.00 27/01/2020 01 14 0072 CH 576 6003-075-01 KIRIBATTI S.A.C. OPERATING ACCOUNT 20,000.00 57,995.02
190. However, as indicated in the preceding recitals, the bank reconciliation format initially presented did not include the differences that PLAN RENTABLE later tried to explain;
191. On the other hand, when comparing the list of checks, it is observed that the figures of some of these do not coincide with the list of disbursements made for the following awarded and delivered certificates that PLAN RENTABLE reported through the “Archivo de Entrega de Bienes y Servicios (ENT)” corresponding to the February 2020 period56. Such disbursements are presented below:
Table No. 17
| Contract | Associate | Award Date | Delivery Date | Certificate Amount |
|---|---|---|---|---|
| 6001-064-03 | Contreras Vasquez, Cesar Wilder | 21/06/2019 | 12/02/2020 | 20,000.00 |
| 6004-026-02 | Maguiña Castillo, Pedro Ezequiel | 06/12/2019 | 04/02/2020 | 18,000.00 |
| 6001-141-02 | Contreras Vasquez, Cesar Wilder | 21/06/2019 | 12/02/2020 | 20,000.00 |
Source: Archivo Entrega de Bienes y Servicios
192. Based on the foregoing, at the date of the inspection, the book balance of the bank account recorded in the Trial Balance of the collective fund was not reconciled with its respective bank statement; since a considerable difference was identified between these balances, which was not explained with the bank reconciliation format presented. Such bank reconciliation included a book balance consistent with the General Ledger format; but different from that recorded in the Trial Balance. As indicated, the observed difference was addressed later, after the OFICIO;
193. Additionally, the information presented that would explain the difference presents inconsistencies;
194. The situations described in the preceding recitals show that the accounting information system implemented by the administering company for the accounting of the collective funds system presents deficiencies, and does not comply with the provisions established in the CHART OF ACCOUNTS, since it does not allow adequate control of the information referring to the bank balances it maintains and that must be reflected in its accounting, that is, in its books and accounting records. In this regard, deficiencies have been presented in the processing of the
[56] The ENT file for February 2020 was reported to the SMV through file No. 2020008555. It is presented based on the provisions of the “Manual de Especificaciones Técnicas para la remisión a la SMV de información de las Empresas Administradoras de Fondos Colectivos” approved by Superintendente Resolution No. 102-2016-SMV/02.
information that is incorporated into the accounting, and therefore, in the balances of the aforementioned accounts in the accounting books, specifically in the General Ledger, and in the Trial Balance, whose balances are the basis for the preparation of the financial statements of the SYSTEM;
195. An adequate processing of the accounting information and the application of the CHART OF ACCOUNTS allows the accounting, books and accounting records of the SYSTEM to be kept and maintained up to date, and that the balances presented can be supported with the records and supporting documentation and do not have differences or that they can be explained in a timely manner, which as mentioned, has not occurred in the present case;
196. According to the foregoing, it is evident that PLAN RENTABLE would not have prepared the financial information of the SYSTEM observing the CHART OF ACCOUNTS, since as demonstrated in the previous recitals, among other observations, in the inspection, balances of bank accounts were detected that were not individually recorded, or that were not recorded in the accounting; book balances that were not reconciled with their respective bank statements, identifying differences that have not been explained with the bank reconciliation formats presented by the administering company or the differences were not explained;
197. In this regard, for some cases, the differences were addressed with the notification of OFICIO; however, as described, there were cases that, even with the information provided, remained with differences to be reconciled or explained; and in another case, the observed differences were not addressed. Likewise, from the documentation presented by the administering company, it was evidenced in one case, different balances for the same accounting account in the Trial Balance and General Ledger books; and for another account, balances that were recorded in the General Ledger; but not in the Trial Balance;
198. Consequently, PLAN RENTABLE was charged with having failed to comply with the provisions of articles 34, 74, 75 and Annex 3 of the REGLAMENTO, and account 10 Cash of the CHART OF ACCOUNTS;
B. REGARDING THE BALANCES OF ACCOUNTS PAYABLE TO THE ADMINISTRATOR OF THE TRIAL BALANCE OF THE COLLECTIVE FUNDS SYSTEM
OF THE FACTS
199. As part of the inspection, the balances of the accounts “account payable to the administrator” account 421114 of the Trial Balance of the collective funds system were compared with the “accounts receivable from the collecting account (SYSTEM)” account 12126 of the Trial Balance of PLAN RENTABLE, from January 1 to December 31, 2020 and from January 1 to February 28, 2021, identifying differences that were notified to PLAN RENTABLE, through the OFICIO;
200. Below are the differences between the indicated accounts:
Table No. 18
| Period | Accounts Receivable from Trial Balance of EAFC (PEN) | Accounts Receivable from Trial Balance of EAFC (USD)57 | Accounts Payable from Trial Balance of the System (USD) | Difference (USD) |
|---|---|---|---|---|
| 31/01/2020 | 118,201.96 | 35,043.57 | 89,110.06 | 54,066.49 |
| 29/02/2020 | 120,830.23 | 35,043.57 | 84,703.58 | 49,660.01 |
| 31/03/2020 | 54,053.73 | 15,745.33 | 37,944.85 | 22,199.52 |
| 30/04/2020 | 53,269.90 | 15,779.00 | 147,786.72 | 132,007.72 |
| 31/05/2020 | 54,106.19 | 15,779.00 | 77,586.91 | 61,807.91 |
| 30/06/2020 | 55,762.99 | 15,779.00 | 172,819.93 | 157,040.93 |
| 31/07/2020 | 55,762.99 | 15,832.76 | 72,325.00 | 56,492.24 |
| 31/08/2020 | 55,762.99 | 15,743.36 | 72,325.00 | 56,581.64 |
| 30/09/2020 | 25,726.99 | 7,156.33 | 72,325.00 | 65,168.66 |
| 31/10/2020 | 26,666.02 | 7,386.71 | 7,146.00 | -240.71 |
| 30/11/2020 | 26,614.32 | 7,386.71 | 2,963.74 | -4,422.97 |
| 31/12/2020 | 20,531.38 | 5,674.79 | 2,963.74 | -2,711.05 |
| 31/01/2021 | 20,623.76 | 5,672.10 | 63,002.79 | 57,330.69 |
| 28/02/2021 | 20,686.15 | 5,672.10 | 105,110.48 | 99,438.38 |
201. Likewise, it was observed that the “accounts payable to the administrator” according to the fund's Trial Balance correspond to Registration Fees of group 3604, inclusive, during the period from 1 October 2020 to 28 February 2021; however, group 3604 was liquidated in September 2020;
202. PLAN RENTABLE, regarding the collective fund's accounts payable to the administrator, in its response to the OFICIO, indicated: “In these items, the liquidation projections of the resolved associates were being recorded, without yet being awarded, which is why there are month-to-month differences between accounts; for the closing of the fiscal year this has been corrected, leaving a reconciled balance between the administered system and the EAFC of $20,313.00, corresponding to a non-transferred balance from the liquidation of group 3604. A detail of the account annex is attached.” (Underlined by us);
203. According to what was indicated by PLAN RENTABLE, the balance that the collective fund maintained as accounts payable to the administrator would correspond to a provision or estimate of the liquidation of the resolved associates; however, it did not specify what type of fees or concepts it is considering in its projection to be liquidated, nor did it explain why it would be considering registration fees payable to the administrator even for some months after the liquidation of group 3604;
[57] Taking into account the buying exchange rate at the close of each month published by the SBS.
[58] Additionally, the settlement date of group 3604 was reported to the SMV through the Group Settlement file (LIQ). This file is submitted in accordance with the provisions of the “Manual of Technical Specifications for the submission to the SMV of information from Collective Fund Management Companies” approved by Superintendency Resolution No. 102-2016-SMV/02.
204. Notwithstanding the foregoing, PLAN RENTABLE in the Excel file it submitted with its response to the OFICIO includes a detail of the balance of the account payable of the collective fund system to the administrator as of 28 February 2021 for a total of US$ 105,110.47, which is consistent in amount with the balance of its Trial Balance as of that date shown in Table No. 18; however, in this detail a list of terminated contracts is observed that would correspond to group 6001 and 6002, and not to group 3604, as indicated by its Trial Balance. Likewise, it indicates a series of amounts for each contract, in which it has not identified whether they correspond to enrollment installments —as also indicated by the description of the balance in its Trial Balance— or to which installments they correspond59 and how they are obtained; that is, an analysis that specifies the calculation of how the balances and concepts to be settled that would be payable to the management company are obtained;
205. For its part, the management company indicated that at the close of fiscal year 2021, PLAN RENTABLE's accounts receivable from the System, as well as the System's accounts payable to PLAN RENTABLE, amount to USD 20 313.00, a figure that is consistent with the Financial Statements presented for the same period;
206. Based on the foregoing, as of the date of review by the inspection, the balances presented as accounts payable to the administrator by the collective fund system in its Trial Balance for the 2020 period, and January and February 2021, presented amounts to be analyzed and reconciled. Additionally, it must be taken into account that the accounting of the collective funds must allow the identification of the information corresponding to each group, as established by article 75 of the REGLAMENTO, which has not occurred in this case, based on the information presented in the System's Trial Balance and the detail of the balance presented by the accounts payable to the administrator as of 28 February 2021;
207. The situation described shows that the accounting information system implemented by the management company for the accounting of the collective fund system has deficiencies, and does not comply with the provisions established in the CHART OF ACCOUNTS, since it does not allow adequate control of the information referring to the obligations it has with the administrator that must be reflected in its accounting, that is, in its books and accounting records as accounts payable to the administrator. In this regard, deficiencies have been presented in the processing of the information that is incorporated into the accounting, and therefore, in the balances of the aforementioned accounts in the accounting books, specifically in the Trial Balance, whose balances are the basis for the preparation of the financial statements;
208. An adequate processing of the accounting information and the application of the CHART OF ACCOUNTS allows the accounting, books and accounting records of the SYSTEM to be kept and maintained up to date, and that the balances presented can be supported, with the records and supporting documentation and do not have differences to be reconciled or that they can be explained in a timely manner, which as mentioned, has not occurred in the present case;
209. Based on the foregoing, it is evident that PLAN RENTABLE would not have prepared the financial information of the SYSTEM observing the CHART OF ACCOUNTS;
[59] Considering the PLAN 60 program to which groups 6001 and 6002 correspond, in the generality of cases, the amount considered would correspond to the amount equivalent to one (1) capital installment.
210. Consequently, PLAN RENTABLE was charged with having breached the provisions of article 34, 74, 75 and Annex 3 of the REGLAMENTO, and account 42 Accounts payable of the CHART OF ACCOUNTS;
OF THE DEFENSES SUBMITTED
With regard to this imputed fact, PLAN RENTABLE states that it cannot refute the imputed charge since, after reviewing its physical files, it indicates that the imputation formulated is correct and PLAN RENTABLE is at fault. PLAN RENTABLE adds that it submits to what the SMV has indicated, therefore, it accepts and acknowledges the infraction committed and that is indicated in the imputed charge. Likewise, it requests that what it stated for the first charge be considered;
EVALUATION OF THE DEFENSES
211. In accordance with the defenses submitted, PLAN RENTABLE acknowledges the commission of the imputed infraction;
212. Therefore, it has been established in the record that PLAN RENTABLE did not prepare the financial information of the System regarding the accounting balances of its bank accounts and of the accounts payable to the administrator, observing the CHART OF ACCOUNTS;
213. In this regard, it must be indicated that it has been established that as of the date of review by the inspection, the balances presented as accounts payable to the administrator by the collective fund system in its Trial Balance for the 2020 period, and January and February 2021, presented amounts to be analyzed and reconciled; and that the accounting of the System did not allow the identification of the information corresponding to each group, as established by article 75 of the REGLAMENTO, as can be inferred from the information presented in the System's Trial Balance and the detail of the balance presented by the accounts payable to the administrator as of 28 February 2021;
214. In the response to the OFICIO, PLAN RENTABLE indicated that at the close of fiscal year 2021, the balances of the accounts receivable from the System (in the administrator's accounting), and of the accounts payable to the administrator (in the system's accounting), have been corrected and are reconciled, presenting a balance of US$ 20,313.00;
215. It must be taken into account that the PLAN DE CUENTAS is of mandatory observance in the accounting of the collective funds to maintain adequate control of their operations and consequently of the accounting balances that will be reflected in the Trial Balance and the General Ledger, which are the basis for the preparation of the financial statements of the SYSTEM. However, as has been demonstrated, this has not occurred in the present case;
216. Additionally, PLAN RENTABLE, as responsible for the system's accounting, should have implemented and maintained an effective accounting information system that considers compliance with the rules governing the preparation and presentation of its financial information, as well as its books and records;
217. With regard to the statute of limitations of the imputed act, it should be noted that the oldest observed act occurred with respect to the accounting balances of the bank accounts and the accounts payable to the administrator as of 31 January 2020, so the four years to determine the existence of an infraction, in accordance with article 42 of the REGLAMENTO DE SANCIONES, would expire on 31 January 2024; however, the imputation of charges was notified to PLAN RENTABLE on 1 December 2023, that is, before the indicated expiration date, so the imputation of the present charge was made in a timely manner and, in that sense, the statute of limitations for the alleged acts has not occurred;
218. As regards the remediation of the imputed acts and the criteria for the evaluation of the sanction indicated by PLAN RENTABLE, it should be noted that this will be analyzed at the time of evaluating the sanction to be imposed;
219. Based on what is set forth in sections A and B of the present charge, PLAN RENTABLE has incurred two (2) infractions classified as serious, in accordance with Annex XIII, numeral 2, subsection 2.3 of the REGLAMENTO DE SANCIONES, in force at the time the acts occurred, which establishes as an infraction of a serious nature “Failure to apply the Specific Chart of Accounts or failure to fully observe its provisions in the accounting of the system or in the preparation of its financial statements”;
220. For its part, it should be noted that in its additional written arguments of 24 January 2024, PLAN RENTABLE reiterates that it acknowledges the commission of the imputed infractions. Likewise, it requests that, for the purposes of imposing the sanction, it be considered that it has not caused any economic harm, nor any repercussion in the market, has not obtained illicit benefits, has not generated harm to the public interest, and that there has been no intentionality in the commission of the infractions; and that, in the event a fine is imposed, the provisions of article 26, literal a, numeral 1 of the REGLAMENTO DE SANCIONES be considered; Additionally, it states that, for the purposes of the gradation of the sanction to be imposed, the criteria set forth in article 248, numeral 3 of the TUO LPAG be considered;
221. It should be noted that what has been set forth by the administrator will be considered in the following section corresponding to the evaluation of the sanction to be imposed;
IV. Evaluation of the Sanction
222. In accordance with the provisions of the regulations, the determination of sanctions shall be carried out in accordance with Decreto Ley N° 21907, article 25° of the REGLAMENTO DE SANCIONES, in accordance with article 248, numeral 3, of the TUO LPAG, and the mitigating and exculpatory circumstances regulated in articles 26 and 27 of the REGLAMENTO DE SANCIONES, in accordance with the provisions of article 257° of the TUO LPAG;
223. Within this framework, the evaluation of the sanction must consider: a) the offender's antecedents; b) recidivism; c) the circumstances of the commission of the infraction; d) the harm caused and the repercussion in the market; e) the illicit benefit resulting from the commission of the infraction; f) probability of detection of the infraction; g) seriousness of the harm to the public interest and/or protected legal interest; h) the existence or not of intentionality in the offender's conduct;
224. In that sense, in order to reconcile the criteria of Decreto Ley N° 21907 and of the TUO LPAG with those indicated in the REGLAMENTO DE SANCIONES and so that these criteria are adequately considered in order that their assessment observes the principle of reasonableness and that the sanction to be imposed is adjusted to them, the following criteria have been analyzed;
225. With regard to the offender's antecedents, in accordance with the provisions of article 25 of the REGLAMENTO DE SANCIONES, the sanctions imposed by the SMV and that have become final within the four (04) years prior to the commission of the infraction constitute the offender's antecedents. In that sense, from the review carried out in said period, it has been verified that FONBIENES EAFC records the following sanction antecedents:
a) By Resolución de Superintendencia Adjunta de Supervisión Prudencial N° 105-2017-SMV/10 of 31 October 2017, PLAN RENTABLE was sanctioned with five (05) warnings and a fine of 6 UIT, for having incurred seven (07) infractions of a minor nature classified in Annex XIV, numeral 3, subsection 3.1 of the previous Reglamento de Sanciones. It should be noted that said sanction was not subject to challenge, so it became final on 23 November 2017.
b) By Resolución de Superintendencia Adjunta SMV N° 007-2019-SMV/10 of 11 March 2019, PLAN RENTABLE was sanctioned with a fine of 12 UIT, for having incurred seven (07) infractions of a serious nature classified in Annex XIX, numeral 2, subsection 2.12 of the previous REGLAMENTO DE SANCIONES. It should be noted that said sanction was the subject of an appeal, which was resolved by Superintendente Resolution No. 80-2020-SMV/02 of 24 August 2020, by which it was resolved to declare the appeal filed by PLAN RENTABLE 60 partially founded.
226. It should be noted that with respect to the infractions related to not having the minimum net equity established and presenting outside the established term the documentation to which it is obligated by the regulations, the infraction precedent cited in literal a) applies;
227. As for the infractions related to directly maintaining persons who have some impediment in accordance with the regulations on the matter, to not communicating the change of its directors, to not preparing, in accordance with the rules that regulate their preparation, the information to which they are obligated by the regulations, and to not complying with the chart of accounts of the collective fund, the infraction precedents cited in literals a) and b) apply;
228. With respect to the infraction related to not updating guarantees, the infraction precedent cited in literal b) applies;
229. With reference to the recidivism of the infractions, in accordance with the provisions of numeral 7 of article 248 of the TUO LPAG, it is not observed that in the present case the assumptions that could constitute a repetition and/or continuity of the infractions subject of this proceeding are present;
230. As for the circumstances of the commission of the infraction, it should be indicated that with respect to the infraction related to not having the net equity, it should be indicated that the facts occurred when PLAN RENTABLE presented its financial information corresponding to the third quarter of 2019 and the four quarters of 2020, in which it was observed that said former EAFC did not have the minimum equity established, which led the SMV to observe such situations and require the corresponding correction, which occurred on dates after the maximum term established by the regulations;
[60] 4 infractions were archived and the fine imposed was reduced to 5.14 UIT.
231. In relation to the infraction for presenting outside the established term the documentation to which it is obligated by the regulations, this occurred to the extent that PLAN RENTABLE had to comply with correcting the minimum equity established as indicated, for which it had to hold a shareholders' meeting in order to adopt the resolutions to amend the bylaws, precisely to carry out the respective capital increases; however, it did not timely present the copies of the pertinent amendment of the corporate bylaws and of the minutes of the shareholders' meeting of PLAN RENTABLE of 29 November 2019, 25 June 2020 and 21 December 2021, which were presented to the SMV only on 13 December 2019, 9 September 2020 and 23 December 2021, respectively; that is, outside the term established in article 18 of the REGLAMENTO (they should have been presented on 2 December 2019, 26 June 2020 and 22 December 2021, respectively); whereby the information subject to the charge was presented 11, 75 and 1 days late with respect to the deadline, respectively;
232. As for the infraction for directly maintaining persons who have some impediment in accordance with the regulations on the matter, it should be indicated that PLAN RENTABLE maintained two of its shareholders as such, ACCIONISTA 1 and ACCIONISTA 2 (whose shareholding represents 96.4 % and 3.6 % of the share capital of PLAN RENTABLE), even though both presented a financial situation that did not comply with the provisions contained in the regulations according to the Infocorp Credit Report obtained on 4 December 2020, and neither of them nor the EAFC itself complied with informing the SMV of such fact, which due to its seriousness prevented such persons from continuing to be directors of Plan Rentable, given that the regulations seek that shareholders have at all times recognized economic and moral solvency to the satisfaction of the SMV and that they are not subject to the impediments developed in the NORMAS COMUNES. In the case of ACCIONISTA 1, said situation remained from 01 March 2017 until 21 February 2022, that is, for 1818 days, while for ACCIONISTA 2, the situation was observed from 23 October 2018 until 23 February 2022, that is, for 1219 days;
233. With respect to the infraction of not updating the guarantees, on 31 January 2022, PLAN RENTABLE presented to the SMV the monthly financial statements as of 31 December 2021 of the SISTEMA, in which it was observed that said former EAFC had a guarantee in favor of the SMV lower than that established from 15 February to 10 May 2022, which was observed and the respective correction was required, which was covered only on 10 May 2022; that is, the deficient situation remained for 84 days;
234. In relation to the infraction for not communicating the change of its directors, PLAN RENTABLE was observed for the fact that it did not inform the SMV of the variations of its Registration Card referring to the departure of its directors: DIRECTOR 1 (31 July 2021) and DIRECTOR 2 (23 July 2021); and the entry of its new directors: DIRECTOR 2, Jorge David Zegarra Paredes, Manuel Francisco Zegarra Paredes and Yimy Sullón Yarleque (2 August 2021). Although according to the regulations, any variation of the Registration Card, as well as the documentation corresponding to this variation, must be communicated to the SMV within two days of the change occurring or of becoming aware of it. It should also be noted that the administrator did not rule on the case of the change in the position of DIRECTOR 1 and that a total of 231 days elapsed for PLAN RENTABLE to report on the departure of the former directors and 221 days for the new directors; with respect to the date of occurrence of the modifications;
235. Regarding the infraction referred to as failure to prepare, in accordance with the rules governing its preparation, the information to which it is obligated by regulation, this occurred for the financial information referring to various month-end balances of the bank accounts of PLAN RENTABLE presented in its Trial Balance, for the period from 31 January 2020 to 28 February 2021, which were reviewed as part of the inspection carried out on the administrator;
236. In this regard, it was evidenced that PLAN RENTABLE did not prepare its financial information referring to these balances, observing that they have a faithful representation of the economic facts, that is, complying with being complete and free of error, since unsupported balances not reconciled with their bank statements were detected, as well as different accounting balances for the same account in the Trial Balance and General Ledger books;
237. Regarding the infraction referred to as failure to comply with the chart of accounts of the collective fund, this occurred for the financial information referring to various accounting balances at month-end of the bank accounts, and of the accounts payable to the administrator presented in the Trial Balance of the SYSTEM for the period from 31 January 2020 to 28 February 2021, which were reviewed as part of the inspection;
238. In this regard, bank account balances were detected that were not recorded in the accounting, or that were not recorded individually, accounting balances that were not reconciled with their bank statements, different accounting balances for the same account in the Trial Balance and General Ledger books, or balances recorded in the General Ledger but not in the Trial Balance;
239. Likewise, it was detected that the balances of the accounts payable to the administrator presented amounts to be analyzed and reconciled, in which the information corresponding to each group could not be identified;
240. Regarding the harm caused and the impact on the market, it should be noted that it has not been possible to evidence that the infraction incurred by PLAN RENTABLE in this sanctioning procedure has caused a specific quantifiable economic harm to the participants of the collective fund system; however, with respect to the impact on the market, the omissions of PLAN RENTABLE have increased the risk assumed by the members by not having adequate administration and accounting of the resources of the groups they had formed, as well as by ceasing to have for a period the complete coverage that should have been provided by the guarantees intended to back the responsibilities assumed by PLAN RENTABLE;
241. Concerning the illicit benefit resulting from the commission of the infractions, it is noted that it has not been proven in this administrative sanctioning procedure that PLAN RENTABLE obtained any illicit benefit as a result of having incurred the infractions under analysis;
242. With regard to the probability of detection of the infractions, it should be noted that the infractions related to failure to prepare, in accordance with the rules governing their preparation, the information to which they are obligated by regulation and failure to comply with the chart of accounts of the collective fund, were evidenced as a result of the supervision and control activities carried out by the SMV during the inspection regarding compliance with the obligations to which collective fund management companies are subject in the performance of their functions, in accordance with the applicable regulations, which implies the review and analysis of the information and documentation submitted by the administrator only in this proceeding, with which it was possible to carry out the reconciliations that allowed the detection of the commission of the infractions. Therefore, the probability of detection of these infractions was low;
243. On the other hand, in the case of the remaining infractions, it should be noted that it was possible to detect them in light of the supervision and control actions periodically carried out by the SMV based on the information that PLAN RENTABLE sends to the SMV, so the probability of detection of said infractions was high; however, in the case of the infractions related to the impediments of the shareholders and the modification of the data in the registry file of the collective fund management companies, Plan Rentable did not timely submit the information to which it was obligated, so the probability of detection of these infractions was medium;
244. Regarding the seriousness of the damage to the public interest and/or protected legal right and harm caused, it should be noted that the actions of PLAN RENTABLE in the commission of the infraction analyzed in this sanctioning procedure have generated an impact on the public interest sought to be protected by the regulatory framework that establishes prudential parameters of equity, guarantees and suitability for the EAFC as well as diligent and orderly conduct in the administration and control of the resources of the members;
245. In this way, every collective funds management company, in order to carry out its operations in the Collective Funds System, must maintain minimum capital conditions in accordance with the provisions of the regulations so that it can mitigate the risks derived from its operations and strengthen compliance with the obligations and responsibilities assumed before its members in the collective funds system;
246. Indeed, it is the obligation of such management companies to maintain their net worth above the limits established in the regulations in order to have a prudentially sound financial position that supports the management of the collective funds system, providing confidence to the members, so by not having complied with the obligations indicated by the regulation, PLAN RENTABLE has affected the protection that the regulations provide to the members;
247. Likewise, considering that during the period between the close of the third quarter of 2019 and the close of the fourth quarter of 2020, the management company did not comply with having the minimum capital required by the regulations and that PLAN RENTABLE also recorded a deficit from 15 February 2022 to 10 May 2022 in the guarantees it constituted as backing for the obligations contracted with the members of the system, it must be reiterated that this affected the legal interest referred to the protection of the same, insofar as the fact that a collective funds management company does not comply with minimum prudential requirements affects the confidence that the members, potential members and the market in general may place in the collective funds industry, affecting in turn its development and its impact as an alternative as a source of financing;
248. Likewise, with regard to the submission of documentation to the SMV, the updating of information in the SPECIAL REGISTRY and keeping persons within the company who have some impediment, such facts imply the impairment of the principle of protection of the members and integrity of the Collective Funds System because by not complying with its information obligations to the System and to the regulator it limits the supervision and control activities of the SMV, which leads to the violation of the legal interest referred to the protection of the members;
249. It should be noted that the impediments established by the regulations for shareholders, among others, seek that these be persons who deserve public trust and who have the suitability and appropriate conduct, insofar as through this the development of the collective funds industry with stability and integrity is guaranteed. Thus, through regulation, the aim is to generate trust, promote the development of the industry and, as Paredes61 points out, mitigate the consequences of the risk of misconduct that includes the lack of suitability of personnel for the financial system in general and for collective funds in particular;
250. In this sense, as Paredes refers, the regulatory framework seeks to “guarantee the integrity of financial institutions by establishing permanent requirements for their main officers, thus contributing to financial stability in general”; however, these objectives have been affected by the actions of PLAN RENTABLE by having allowed persons who had impediments linked to payment defaults or debts of a commercial or financial nature to continue serving as shareholders for up to more than 5 years;
251. On the other hand, it should be indicated that the information of the SPECIAL REGISTRY is disseminated to the market through the SMV Portal, therefore when a management company does not timely communicate changes in the composition of its board of directors, such inaccurate information is disseminated with that condition to the market in general, thus affecting its transparency;
252. With regard to the infraction for not updating the guarantees provided by the regulations, it should be indicated that considering that from 15 February to 10 May 2022, PLAN RENTABLE recorded a deficit in the guarantees it constituted as backing for the commitments contracted with its members, it should be indicated that this affected the legal interest referred to the protection of the same, as well as the integrity of the collective funds system industry has been affected, insofar as the fact that a management company does not comply with minimum prudential requirements affects the confidence that the members, potential members and the system in general may place in said industry, affecting in turn its development and its impact as an alternative as a source of financing;
253. On the other hand, by not having prepared its financial information referring to the observed accounting balances, in accordance with the provisions of the regulations applicable to the management company and the fund it manages, the legal interest referred to the transparency and integrity of the funds system has been violated
[61] Farida Saraid Paredes Falconi, “Suitability and the risk of misconduct in the Financial System. The case of the Superintendency of Banking and Insurance”. University of Navarra.
collective. Likewise, the situations and faults detected in the reviewed accounting balances hindered the control and supervision of the SMV;
254. It should be noted that it is the duty of the collective funds management company to comply with preparing its financial information and that of the system it manages in accordance with provisions that regulate its preparation, a duty of mandatory compliance not only before the general market and the SMV, but also before its members and potential members. In this regard, as previously noted, non-compliance affects the integrity of the market, as well as the principle of transparency of information; which in the present case, the commission of the infraction has implied that information that did not comply with the treatment required by accounting regulations and the CHART OF ACCOUNTS was disseminated to the market;
255. It should be noted that the information provided to the market and which serves as a basis for decisions by a member must comply with a set of conditions, including being truthful and complete; in this sense, investors reasonably expect that the financial information to which they have access is prepared in compliance with the regulations governing it; which is particularly important in the present case since PLAN RENTABLE is an institution that operates under the scope of an operating authorization granted by the regulator and supervisor of the collective funds industry;
256. Consequently, it is considered that PLAN RENTABLE has violated legal interests related to the protection of the collective funds system industry and the duties of the managing company to act with diligence, and in defense of the transparency and integrity of the system, such as managing its activity prudently, caring for the interests of the members as if they were its own;
257. Regarding the existence or not of intentionality in the conduct of the offender, it must be specified that No intentionality has been evidenced in the conduct of PLAN RENTABLE regarding the infractions under analysis;
258. In addition to the above, it is appropriate to analyze the exempting and mitigating conditions of responsibility established in article 257° of the TUO LPAG62 and in articles 2763 and 2664 of the SANCTIONS REGULATION, respectively;
259. In the present administrative sanctioning procedure, it should be noted that none of the assumptions that constitute exempting conditions of responsibility have been observed to be configured;
260. Notwithstanding the foregoing, it should be noted that in its defenses PLAN RENTABLE has stated that it remedied the infractions subject to imputation, without any requirement from the SMV;
261. On the matter, it should be indicated that PLAN RENTABLE has not specified how it voluntarily remedied the infractions committed or
[62] “Article 257.- Exemptions and mitigations of liability for infractions 1.- The following constitute exempting conditions of liability for infractions: a) Fortuitous event 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 ability 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 remediation 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 mitigating conditions of liability for infractions: a) If, once an administrative sanctioning procedure has begun, the offender acknowledges its responsibility expressly and in writing. 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 norm.”
[63] Article 26.- MITIGATING CONDITIONS OF LIABILITY FOR INFRACTIONS The following constitute mitigating conditions of liability for infractions: a) Acknowledgment of responsibility by the offender expressly and in writing, once the administrative sanctioning procedure has begun. When the applicable sanction is a fine, it is reduced, taking into account the following: 1. If the acknowledgment of the infraction is presented within the period granted for the presentation of defenses, the reduction amount shall be fifty percent (50%). 2. If the acknowledgment is presented after the expiration of the period granted for the presentation of defenses and before the expiration of the period granted to formulate allegations to the instruction report, the reduction amount shall be thirty percent (30%). 3. If the acknowledgment is presented after the expiration of the period granted to formulate allegations to the instruction report and up to before the issuance of the sanction resolution, the reduction amount shall be ten percent (10%). The acknowledgment of responsibility regarding an infraction must be made precisely, concisely, clearly, expressly and unconditionally, and must not contain ambiguous or contradictory expressions; otherwise, it will not be understood as an acknowledgment. If defenses are presented, despite having made an acknowledgment of responsibility, it will be understood as a non-acknowledgment, and the authority shall proceed to evaluate the defenses. b) Contribution of the offender to the clarification of the infraction. c) The remediation carried out after its requirement or the initiation of the administrative sanctioning procedure.
[64] Article 27.- EXEMPTING CONDITIONS OF LIABILITY FOR INFRINGEMENTS The following constitute exempting conditions of liability for infringements: a) Fortuitous event, force majeure or another exceptional situation that, in the opinion of the SMV, is comparable to a duly proven fortuitous event or force majeure. b) Acting in compliance with a legal duty or the legitimate exercise of a right of defense. c) Mental incapacity duly proven by the competent authority, provided that it affects the aptitude to understand the infringement. 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 infringement, prior to the notification of the imputation of charges referred to in subsection 3) of article 253 of the LPAG and provided that no communication demanding compliance with the obligation has been sent.
has proven this with the respective documentary evidence, so such argument lacks basis;
262. Without prejudice to the foregoing, it should be noted that, as has been developed in each imputed infringement, all of them were subject to observation by the SMV, that is, there was a prior requirement by the regulator, which was expressly known to PLAN RENTABLE, which is why it is not appropriate to grant a request for voluntary correction and therefore, to consider it as an exempting condition of liability;
263. As for the mitigating circumstances of liability, consideration is given to the correction of the facts related to the equity deficit, the late submission of the documentation they are obliged to provide, directly maintaining persons who have some legal impediment, not updating the guarantees, not communicating the change of their directors, whose situations were regularized after the respective requirements by the SMV, as has been developed in this proceeding;
264. Indeed, in the case of the first infringement, not having the minimum net equity established, through the following official letters PLAN RENTABLE was required to correct the equity deficit incurred:
a. Official Letter No. 5587-2019-SMV/10.02, of 25 November 2019 (interim financial information for the third quarter of 2019);
b. Official Letter No. 2734-2020-SMV/10.02 of 19 August 2020 (interim financial information for the first quarter of 2020);
c. Official Letter No. 3442-2020-SMV/10.02 of 02 October 2020 (interim financial information for the second quarter of 2020);
d. Official Letter No. 4223-2020-SMV/10.02 of 24 November 2020 (interim financial information for the third quarter of 2020);
e. Official Letter No. 988-2021-SMV/10.2, issued on 11 March 2021 (interim financial information for the fourth quarter of 2020);
265. As for the second infringement, submitting outside the established term the documentation to which it is obliged by the regulations, in particular, a copy of the minutes containing the agreement to increase capital to correct the equity deficit and a copy of the bylaws including the amendments made, it should be noted that for each deficit incurred, through the official letters indicated in the previous paragraph, PLAN RENTABLE was required to provide the aforementioned documents;
266. Regarding the third infringement, directly maintaining persons who have some impediment in accordance with the regulations on the matter referring to directors: SHAREHOLDER 1 and SHAREHOLDER 2 who presented a financial situation that did not comply with the provisions contained in the REGLAMENTO, through Official Letter No. 4505-2020-SMV/10.2 of 14 December 2020 and No. 1554-2021-SMV/10 of 20 April 2021, PLAN RENTABLE was required to correct the case;
267. In relation to the fourth infringement, not updating the guarantees, through Official Letter No. 765-2022-SMV/10.2, issued on 22 February 2022, the SMV requested PLAN RENTABLE to submit the respective guarantee that complies with the minimum amounts required by the regulations;
268. As for the fifth infringement, referring to not communicating the change of its director MR MAC DOWALL, through Official Letter No. 1034-2022- SMV/10.2 of 9 March 2022 PLAN RENTABLE was required to update the data of the members of its board of directors that appear in the REGISTRO ESPECIAL;
269. In the case of the infringements for the administrator: “Not preparing, in accordance with the rules that regulate its preparation, the information to which they are obliged by the regulations or by requirement of the SMV” regarding not having prepared in observance of the regulations, its financial or accounting information, referring to the balances of its bank accounts in the accounting and in the accounting books, specifically in the Trial Balance and the General Ledger of the administrator; and for the Fund: “Not applying the Specific Chart of Accounts or not complying with fully observing its provisions in the accounting of the system or in the preparation of its financial statements”, regarding not complying with the CHART OF ACCOUNTS regarding the preparation of the balances of its bank accounts, and of its accounts payable to the administrator in the accounting and in the accounting books, such as the Trial Balance and the General Ledger;
270. It should be noted that such conducts could not be corrected under the terms provided by the TUO LPAG, since the financial information referring to the accounting balances subject to charge was prepared in breach of the regulations that govern its preparation and therefore was detected at the time of the inspection;
271. Notwithstanding the foregoing, it must be taken into account that with respect to the observations referring to bank balances for both the administrator and the system, in the generality of cases, even with the explanations or information provided pursuant to Oficio N° 568-2022-SMV/10.265 notified on 9 February 2022, as explained, balances remained to be reconciled, items to be regularized or recorded in accounting were identified, or inconsistencies were identified. Likewise, there was information not addressed. Additionally, with respect to the accounts payable to the administrator, although PLAN RENTABLE, in response to the aforementioned Oficio, presented a detail with the balances as of 31 December 2021, which would correspond to the accounts payable of the fund to the administrator, and to the accounts receivable of the administrator from the fund, which coincide in amount and stated that as of this date the balances have already been corrected and reconciled; it should be noted that this correction was made in a period subsequent to those observed in Cuadro N° 18, which were the periods subject to inspection;
272. Likewise, it should be noted that PLAN RENTABLE has acknowledged its responsibility in the commission of the infractions, which will be considered as a mitigating factor;
273. As regards the offender's contribution to its clarification, it should be noted that although PLAN RENTABLE did not hinder the clarification of most of the facts related to the infractions subject to this sanctioning procedure and presented some regularizations prior to the SMV's observations since the infractions of this procedure were imputed, it must be specified that it has not contributed by providing
[65] By means of expediente N° 2020004788.
additional explanations regarding the imputed facts to the extent that it has submitted to the charges indicating that they correspond to a previous administration;
274. In view of the foregoing, it is concluded that PLAN RENTABLE has incurred in eight infractions: two (2) very serious, four (4) serious and two (2) minor, with respect to which, in application of article 29 of the REGLAMENTO DE SANCIONES, it corresponds to apply concurrence of infractions and impose on PLAN RENTABLE a sanction corresponding to the infractions classified as very serious;
275. In accordance with the provisions of article 37° of the REGLAMENTO DE SANCIONES, the very serious infraction is punishable by a fine greater than 50 up to 100 UIT or the prohibition of the subscription of new contracts or revocation of the authorization of operation; however, to the extent that PLAN RENTABLE has acknowledged the commission of the infraction; it corresponds to apply the provisions of article 26°, literals a), numeral 1 of the REGLAMENTO DE SANCIONES, so the fine for the infractions must fluctuate between 25 UIT and 50 UIT; that is, 50% of the range established for serious infractions
276. In this sense, considering the sanction criteria analyzed and in application of the Principle of Reasonableness contemplated in article 248°, numeral 3 of the TUO LPAG, which states that sanctions must be proportional to the non-compliance qualified as an infraction, this Superintendencia Adjunta considers that it corresponds to impose on PLAN RENTABLE a sanction corresponding to a classification lower than that provided for very serious infractions;
In accordance with the provisions of article 32, numeral 16 of the Reglamento de Organización y Funciones de la SMV, approved by Decreto Supremo Nº 216-2011-EF.
RESOLVES:
Artículo 1°.- Declare that Plan Rentable Perú S.A.C. ex Empresa Administradora de Fondos Colectivos has incurred in an infraction classified as very serious typified in Anexo I, numeral 1, inciso 1.16 of the Reglamento de Sanciones, approved by Resolución SMV N° 035-2018-SMV/01, for not having the minimum net equity established by the regulations, as established in article 2 of Decreto Ley N° 22014, articles 38 and 39 of the Reglamento del Sistema de Fondos Colectivos y de sus Sociedades Administradoras, approved by Resolución SMV N° 020-2014-SMV-01 and its amendments.
Artículo 2°.- Declare that Plan Rentable Perú S.A.C. ex Empresa Administradora de Fondos Colectivos has incurred in an infraction classified as very serious, according to Anexo I, numeral 1, inciso 1.15 of the Reglamento de Sanciones, approved by Resolución SMV N° 035-2018-SMV/01, for directly maintaining persons who have some impediment in accordance with the regulations on the matter, in accordance with article 11-A and Anexo B, literal s) of the Normas comunes a las entidades que requieren autorización de organización y funcionamiento de la SMV, approved by Resolución SMV N° 039-2016-SMV/01 and its amendments; and articles 11 and 13 of the Reglamento del Sistema de Fondos Colectivos y de sus Sociedades Administradoras, approved by Resolución SMV N° 020-2014-SMV-01 and its amendments.
Artículo 3°.- Declare that Plan Rentable Perú S.A.C. ex Empresa Administradora de Fondos Colectivos has incurred in an infraction classified as serious, according to Anexo I, numeral 2, inciso 2.26 of the Reglamento de Sanciones, approved by Resolución SMV N° 035-2018-SMV/01, for not updating guarantees, as established in article 40 of the Reglamento del Sistema de Fondos Colectivos y de sus Sociedades Administradoras, approved by Resolución SMV N° 020-2014-SMV-01 and its amendments.
Artículo 4°.- Declare that Plan Rentable Perú S.A.C. ex
Empresa Administradora de Fondos Colectivos has incurred an infraction classified as serious, in accordance with Annex I, numeral 2, subparagraph 2.2 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for not preparing, in accordance with the rules governing its preparation, the information to which they are obligated by the regulations, breaching the provisions of articles 34 and 72 of the Regulation of the Collective Funds System and its Managing Companies, approved by SMV Resolution No. 020-2014-SMV-01 and its amendments, article 2 of the Financial Information Regulation approved by CONASEV Resolution No. 103-99-EF-94.10, article 1 of the Rules on the preparation and presentation of Financial Statements and Annual Report by entities supervised by the Superintendency of the Securities Market, approved by SMV Resolution No. 016-2015-SMV-01, paragraph 15 of International Accounting Standard 1, "Presentation of Financial Statements" (IAS 1) and paragraphs 2.12, 2.13, 2.14, 2.18 and 2.21 of the Conceptual Framework for Financial Reporting of the International Financial Reporting Standards –IFRS, in force at the date of occurrence of the facts.
Article 5.- Declare that Plan Rentable Perú S.A.C. ex
Empresa Administradora de Fondos Colectivos has incurred an infraction classified as serious, in accordance with Annex XIII, numeral 2, subparagraph 2.3 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for not complying with the Chart of Accounts of the Collective Fund, under articles 34, 74, 75 and Annex 3 of the Regulation of the Collective Funds System and its Managing Companies, approved by SMV Resolution No. 020-2014-SMV-01 and its amendments, and account 10 Cash of the Chart of Accounts of Collective Funds, approved by SMV Resolution No. 006-2015-SMV-01.
Article 6.- Declare that Plan Rentable Perú S.A.C. ex
Empresa Administradora de Fondos Colectivos has incurred an infraction classified as serious, in accordance with Annex XIII, numeral 2, subparagraph 2.3 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for not complying with the Chart of Accounts of the Collective Fund, under articles 34, 74, 75 and Annex 3 of the Regulation of the Collective Funds System and its Managing Companies, approved by SMV Resolution No. 020-2014-SMV-01 and its amendments, and account 42 Accounts payable of the Chart of Accounts of Collective Funds, approved by SMV Resolution No. 006-2015-SMV-01.
Article 7.- Declare that Plan Rentable Perú S.A.C. ex
Empresa Administradora de Fondos Colectivos has incurred an infraction classified as minor as defined in Annex I, numeral 3, subparagraph 3.6 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for not submitting to the SMV, on the date of the agreement or on the day following its adoption, a copy of the minutes and article of the bylaws referring to the modification of the company's share capital, as established in article 18 of the Regulation of the Collective Funds System and its Managing Companies, approved by SMV Resolution No. 020-2014-SMV-01 and its amendments.
Article 8.- Declare that Plan Rentable Perú S.A.C. ex Empresa Administradora de Fondos Colectivos has incurred an infraction classified as minor, in accordance with Annex XIII, numeral 3, subparagraph 3.1 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for not reporting those facts that entail a modification of the data in the registration file of the collective fund managing companies, within the period granted by the SMV, thereby breaching article 73, literals d) and e) of the Regulation of the Collective Funds System and its Managing Companies, approved by SMV Resolution No. 020-2014-SMV-01 and its amendments.
Article 9.- Sanction Plan Rentable Perú S.A.C. ex Empresa Administradora de Fondos Colectivos, with a fine amounting to twenty-seven (27) UIT, for the commission of the infractions mentioned in articles 1 to 8 of this resolution.
Article 10.- 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 motion for reconsideration or appeal before the same, within a period of fifteen (15) business days counted from the day following its notification.
Article 11.- In the event that this resolution is not challenged by means of a motion for reconsideration or appeal within fifteen (15) business days of notification and becomes final, it must be published on the SMV Institutional Page on the Single Digital Platform of the Peruvian State, in observance of the provisions of numeral 1, article 7 of the Policy on 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.
Article 12.- Transcribe this resolution to Plan Rentable Perú S.A.C. ex Empresa Administradora de Fondos Colectivos.
Register, communicate and publish.
Omar Gutiérrez Ochoa
Deputy Superintendent
Deputy Superintendency of Prudential Supervision
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- Issued under
“in accordance with article 42 of the REGLAMENTO DE SANCIONES, approved by Resolución SMV No. 035-2018- SMV/01 (hereinafter, REGLAMENTO DE SANCIONES)”
“approved by SMV Resolution No. 014-2014-SMV/01 and its amendment”
- General Administrative Procedure Law (Ley N.° 27444, Ley del Procedimiento Administrativo General)2001 · PE-LAW
“In observance of the Principle of Due Process contemplated both in Article IV, numeral 1.2, of the Preliminary Title and in article 248, item 2, of the Single Ordered Text of the General Administrative Procedure Law, Law No. 27444 and its …”
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