PERU Ministry of Economy and Finance
SMV
Superintendency of the Market in Securities

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

Deputy Superintendency Resolution SMV

No. 012-2024-SMV/10

Lima, 20 March 2024

Summary: It is declared that Promotores e Inversiones Investa S.A. Sociedad Agente de Bolsa has incurred a minor infraction classified in Annex I, numeral 3, subparagraph 3.1., for not timely submitting its annual report for the year 2021, to which the principle of non-retroactivity set forth in numeral 5 of article 248 of the Single Ordered Text of the General Administrative Procedure Law corresponds to apply; and therefore, the archiving of the administrative sanctioning procedure.

Administered entity	:	Promotores e Inversiones Investa S.A. Sociedad Agente de Bolsa
Subject	:	Administrative sanctioning procedure
File No.:		2023027573

The Deputy Superintendent of Prudential Supervision

WHEREAS:

Administrative file No. 2023027573, and Report No. 252-2024-SMV/10.3, issued by the General Intendancy of Prudential Compliance; as well as the defenses submitted by Promotores e Inversiones Investa S.A. Sociedad Agente de Bolsa; and,

CONSIDERING:

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

I. FACTS

2. Within the supervision functions assigned to the SMV, an evaluation was carried out of timely compliance in the submission of periodic information by Promotores e Inversiones Investa S.A. Sociedad Agente de Bolsa (hereinafter, INVESTA SAB);

3. As a result of said evaluation and under the provisions of the Single Ordered Text of the General Administrative Procedure Law, Law No. 27444, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO DE LA LPAG), by means of Official Letter No. 2863-2023-SMV/10.3, notified on 22 June 2023 (hereinafter, OFFICIAL LETTER OF CHARGES), a charge was formulated against INVESTA SAB for failing to comply with the "Norms on the preparation and submission 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, NORMS), in force at the time of the commission of the facts, by not having submitted, within the term established by the regulations applicable to stock brokerage firms, the Annual Report corresponding to fiscal year 2021 (hereinafter, ANNUAL REPORT 2021), which was approved on 28 February 2022. Said information should have been submitted on the day of its approval; however, it was sent on 15 March 2022;

4. The aforementioned non-compliance is classified in Annex I, numeral 3, subparagraph 3.1 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), which prescribes as a minor infraction: "Submit outside the established term, or do so incompletely, or, without observing the technical specifications approved by the SMV or without communicating the approval by the corresponding corporate body, to the SMV, to the Exchange, to the entity in charge of the centralized negotiation mechanism or to any other entity or subject of the securities market, the audited individual or consolidated financial information, the individual or consolidated interim financial statements, management report, special audit report, material events and annual reports";

5. By writing received on 27 June 2023, INVESTA SAB submitted its defenses to the observations made;

6. The charges formulated, as well as the defenses submitted by INVESTA SAB, have been subject to evaluation by the General Intendancy of Prudential Compliance in Report No. 252-2024-SMV/10.3, which has been submitted to the knowledge of this Deputy Superintendency;

7. In observance of the Principle of Due Process contemplated both in article IV, subparagraph 1, numeral 1.2 of the Preliminary Title, as well as in article 248, numeral 2, of the TUO DE LA LPAG, by means of Official Letter No. 845-2024-SMV/10, the administrative file to which this resolution refers was made available to INVESTA SAB for its review;

II. ISSUES TO BE DETERMINED

8. In the present administrative procedure, in the opinion of this Deputy Superintendency, it corresponds to determine the following:

a. Whether or not INVESTA SAB incurred an infraction by not having submitted the Annual Report corresponding to the year 2021, subject of charges, within the term established in article 12 of the NORMS;

b. Whether or not it corresponds to impose a sanction on INVESTA SAB;

[1] File No. 2022010484.

III. ANALYSIS

3.1 Of the applicable regulations

9. Regarding the observations noted in the OFFICIAL LETTER OF CHARGES, article 12 of the NORMS establishes the following:

""Article 12.- Obligation to submit annual report (...) Issuing companies with securities registered in the RPMV, legal persons registered in the RPMV and collective fund management companies must submit to the SMV on the day it has been approved by the corresponding body, their Annual Report and, if applicable, the Annual Information Document. The deadline for its approval and respective submission is 31 March of each year. In the case of collective fund management companies, the deadline is 30 April of each year. (...)";

3.2. Of the charge formulated

10. Through the OFICIO DE CARGOS, a charge was filed against INVESTA SAB after it was verified that it would not have complied with timely submitting to the SMV the periodic information indicated in the third recital of this resolution;

3.3. Of the defenses presented

11. On the matter, INVESTA SAB maintains that, strictly speaking, the provisions of article 12 of the NORMAS are not enforceable against the administered party insofar as they are incompatible with the establishment of deadlines set forth in article 145 of the TUO DE LA LPAG2, whose application is imperative for the administration, in accordance with "article II Content" of the same norm3, and is likewise incompatible with the provision of deadlines established in article 183 of the Civil Code4, a supplementary norm for the securities market;

12. Notwithstanding the foregoing, the stock brokerage company states that the imputation described in the OFICIO DE CARGOS would likewise be inapplicable due to two circumstances: the first arising from the current regulations and the

[2] "Article 145.- Passage of the term 145.1 When the term is indicated in days. (...) 143.2 (...) 145.3 When the term is set in months or years. (...)". (Emphasis added by INVESTA SAB).

[3] "Article II.- Content 1. This Law contains common norms for the actions of the administrative function of the State and regulates all administrative procedures developed in the entities, including special procedures. 2. Laws that create and regulate special procedures may not impose conditions less favorable to administered parties than those provided in this Law. 3. Administrative authorities, when regulating special procedures, shall comply with following the administrative principles, as well as the rights and duties of the subjects of the procedure, established in this Law.". (Emphasis added by INVESTA SAB).

[4] "Rules for computation of the term Article 183.- The term is computed (...) in accordance with the following rules: 1.- The term indicated in days is computed (...) 2.- The term indicated in months is fulfilled (...) 3.- The term indicated in years is governed (...) (...)". (Emphasis added by INVESTA SAB).

second, generated by the will of the legislator expressed through an "administrative act"5 that remains in force;

13. In this regard, it states that the occasion on which the MEMORIA ANUAL 2021 was submitted would not entail administrative liability, insofar as, in accordance with the provisions of literal f) of numeral 1 of article 257 of the TUO DE LA LPAG6, it was a voluntary rectification; and, as an effect derived from the publication of Superintendency Resolution No. 024-2019-SMV/01, article 28 of the REGLAMENTO DE SANCIONES cannot be applied to the submission of financial and occasional information;

14. On the other hand, INVESTA SAB alleges that with the publication of the "Calendario de Presentación de Información de Agentes de Intermediación – año 2022" the exemption from administrative liability provided in literal e), numeral 1 of article 257 of the TUO DE LA LPAG would also be applicable:

"Article 257.- Exemptions and mitigating circumstances of liability for infractions The following constitute conditions exempting liability for infractions: (...) e) The error induced by the Administration or by a confusing or illegal administrative provision. (...)". (Emphasis added by INVESTA SAB)

;

15. In this regard, the stock brokerage company maintains that, as an unintended effect, the dissemination of the calendar would have induced the administered party into error, because from a reasonable perspective it is feasible that the precision of what was published by the administrative authority is perceived as an extension for the submission of the MEMORIA ANUAL 2021;

[5] "Article 1.- Concept of administrative act 1.1 Administrative acts are the declarations of the entities that, within the framework of norms of public law, are intended to produce legal effects on the interests, obligations or rights of administered parties within a specific situation.". (Emphasis added by INVESTA SAB).

[6] "Article 257.- Exemptions and mitigating circumstances of liability for infractions 1.- The following constitute conditions exempting liability for infractions: (...) f) The voluntary rectification by the possible sanctioned party of the act or omission imputed as constituting an administrative infraction, prior to the notification of the imputation of charges referred to in subsection 3) of article 255.". (Emphasis added by INVESTA SAB).

3.4 Evaluation of the defenses

16. In its defenses, INVESTA SAB alleges that the term indicated in article 12 of the NORMAS, in force at the time the facts occurred, would be incompatible with the provisions of article 145 of the TUO DE LA LPAG and article 183 of the Civil Code;

17. On the matter, it must be indicated that article 12 of the NORMAS establishes the obligation of stock brokerage companies, among others, in their capacity as agents supervised by the SMV, to submit their Annual Report on the day it has been approved by the corresponding body, so that the information contained in the Annual Reports is conveyed to the market in a sufficient, truthful and timely manner, so that the trust of the persons participating in said market is preserved;

18. For its part, the rules contained in article 145 of the TUO de la LPAG are aimed at regulating the terms established in the administrative procedures carried out in administrative entities, which have as their purpose the issuance of an administrative act. Likewise, article 183 of the Civil Code regulates the rules that must be taken into account when calculating the term in the Gregorian calendar, in cases where the term is established in days, months, years, which is not applicable to the present case, since the opportunity at which the obligation to submit the Annual Report has been established is the date of its approval;

19. In accordance with the foregoing, the alleged incompatibility between the aforementioned provisions and the provisions of article 12 of the NORMS, alleged by INVESTA SAB, is not observed;

20. On the other hand, the stock brokerage company invokes the application of the exemption from liability provided for in literal f) of numeral 1 of article 257 of the TUO DE LA LPAG, insofar as it has voluntarily remedied the infraction under analysis. Likewise, it maintains that in accordance with the provisions of Superintendency Resolution No. 024-2019-SMV/01, article 28 of the SANCTIONS REGULATIONS cannot be applied to the submission of financial and event information;

21. On this matter, it is appropriate to indicate that SMV Resolution No. 024-2019-SMV/01 does not establish that article 28 of the SANCTIONS REGULATIONS cannot be applied to the submission of financial and event information, but rather, through said norm, the dissemination of the draft "Graduality Regime of Sanctions for late submission of financial information, annual report and material events" was authorized, so that within thirty (30) calendar days after its publication in the Official Gazette "El Peruano", any interested person may send to the SMV their comments and observations regarding said draft, in accordance with the provisions of articles 1 and 2 of the Policy on publicity of regulatory drafts, general legal norms and other administrative acts of the SMV, approved by SMV Resolution No. 014-2014-SMV-01;

22. Consequently, it should be noted that in accordance with the provisions of article 28, literal c), of the SANCTIONS REGULATIONS, the late or incomplete submission; or the non-submission of material events, financial information and annual reports, constitutes one of the cases in which voluntary remediation does not apply as an exemption from liability, which is why it is not possible to apply the exemption from liability invoked by the stock brokerage company;

23. Additionally, INVESTA SAB alleges that with the publication of the "Information Submission Calendar for Intermediation Agents – Year 2022" it would have been misled, because from a reasonable perspective it would be feasible for said calendar to be perceived as an extension for the submission of the 2021 ANNUAL REPORT;

24. In this regard, it should be noted that the "Information Submission Calendars" are reference documents whose purpose is to remind supervised entities of certain considerations to take into account, for example, the deadlines for submitting their financial information and, that, in no case, said documents can create new obligations or modify them beyond those established in the corresponding norms;

25. In this sense, through the "Information Submission Calendar for Intermediation Agents – Year 2022", published on the SMV portal on 28 January 2022 (hereinafter, SUBMISSION CALENDAR), a set of provisions established in the NORMS was communicated to all intermediation agents, among which was INVESTA SAB, among others, referring to the main obligations regarding the submission of certain periodic information to the SMV;

26. In numeral 5 of point A of the SUBMISSION CALENDAR7 it is indicated that the deadline for the submission of the 2021 ANNUAL REPORT was 31 March 2022; establishing for this purpose as the reference regulatory framework article 12 of the NORMS; that is, in addition to indicating the deadline, reference was made, clearly and precisely, to the pertinent article of the NORMS that regulates the submission of the Annual Report;

27. On this matter, and as indicated above, article 12 of the NORMS establishes the obligation of stock brokerage companies to submit to the SMV their Annual Report on the day it has been approved by the corresponding body. Likewise, it indicates the maximum term for its approval and respective submission, which, for the present case, was 31 March 2022;

28. In this sense, it should be highlighted that INVESTA SAB, as a company supervised by the SMV, with operating authorization granted through CONASEV Resolution No. 243-94-EF/94.10.0 of 17 May 1994, had the duty of diligence to know and apply the regulatory framework that corresponded to it when participating in a regulated market; and, consequently, it should have submitted the REPORT

[7] "(…) 5. ANNUAL REPORT (art. 12 Norms on preparation and submission of financial statements and annual report by entities supervised by the SMV, R.SMV. 016-2015-SMV/01)

No.	Closing Date	Deadline
1	31/12/2021	31/03/2022

(…)" 2021 ANNUAL REPORT on the day of its approval by the corresponding body, that is, on 28 February 2022, in accordance with the provisions of the aforementioned article 12 of the NORMS;

29. Notwithstanding the foregoing, it should be indicated that, through SMV Resolution No. 013-2023-SMV/01 of 06 December 20238, the Norms on Preparation, Submission and Dissemination of Financial Statements, Annual Report and Management Report applicable to entities supervised by the Superintendency of the Securities Market (hereinafter, NEW NORMS) were approved, which replaced the NORMS;

30. Although the NEW RULES entered into force as of 11 December 2023, considering the provisions of article 248, numeral 5 of the TUO of the LPAG, they have retroactive effect insofar as they are more favorable to the administered party. In this regard, it should be noted that Annex I, numeral 3, subsection 3.1 of the SANCTIONS REGULATION classifies as an administrative infraction the submission of annual reports to the SMV outside the established deadline; in this case, it was observed that, as of the date the events occurred, the ANNUAL REPORT 2021 was submitted by INVESTA SAB outside the deadline established in article 12 of the RULES, that is, after the day of its approval;

31. Therefore, the deadline for submission of the annual report established in article 12 of the RULES (currently repealed) should be applied to this case, unless the NEW RULES contain provisions more favorable to INVESTA SAB;

32. Regarding the submission deadline, article 20 of the NEW RULES establishes:

“Article 20.- Approval and submission deadline (…) 20.3 31 March of each year is the expiration date of the deadline for the submission and dissemination of the annual report. (…).”;

33. According to the foregoing, it is observed that article 20 of the NEW RULES provides that legal entities registered in the Public Registry of the Securities Market, among which are stock brokerage firms, have the obligation to submit their annual report to the SMV by 31 March of each year;

34. However, as seen in the STATEMENT OF CHARGES, INVESTA SAB submitted the ANNUAL REPORT 2021 on 15 March 2022, that is, within the deadline established in the aforementioned article 20 of the NEW RULES, that is, until 31 March 2022;

35. Consequently, the provisions of article 20 of the NEW RULES are applicable in this administrative sanctioning procedure, as it is more favorable to the administered party regarding the commission of the infraction that INVESTA SAB would have committed;

36. In that sense, upon verifying that INVESTA SAB submitted the ANNUAL REPORT 2021 within the deadline established in article 20 of the NEW RULES, the charge formulated in this procedure should be archived

[8] Published in the Official Gazette El Peruano on 10 December 2023.

administrative sanctioning procedure, in application of the principle of non-retroactivity, contained in numeral 5 of article 248 of the TUO OF THE LPAG;

37. In accordance with the provisions of article 32, numeral 17, of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF and its amendments;

RESOLVES:

Article 1.- Declare that Promotores e Inversiones Investa S.A. Sociedad Agente de Bolsa has incurred in one (1) infraction of a minor nature classified in Annex I, numeral 3, subsection 3.1 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for submitting outside the deadline established in the applicable regulations the annual report corresponding to fiscal year 2021.

Article 2.- Declare the archiving of the infraction referred to in article 1 of this resolution in application of the principle of non-retroactivity, contained in numeral 5 of article 248 of the Single Ordered Text of the General Administrative Procedure Law, Law No. 27444, approved by Supreme Decree No. 004-2019-JUS; and consequently, consider this administrative sanctioning procedure concluded.

Article 3.- Transcribe this resolution to Promotores e Inversiones Investa S.A. Sociedad Agente de Bolsa and to the Lima Stock Exchange S.A.

Register, communicate and publish.

Omar Gutiérrez Ochoa
Deputy Superintendent
Deputy Superintendency of Prudential Supervision