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

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

Deputy Superintendency Resolution SMV

No. 020-2024-SMV/10

Lima, 24 April 2024

Summary: It is declared that Autoplan Empresa Administradora de Fondos Colectivos S.A. incurred two (02) infractions of a minor nature typified in Annex I, numeral 3, subparagraph 3.1., 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 applies; and therefore, the archiving of the administrative sanctioning procedure.

Administered
:
Autoplan Empresa Administradora de Fondos Colectivos S.A.
Subject
:
Administrative sanctioning procedure
File No.:
2023031840

The Deputy Superintendent of Prudential Supervision

VIEWS:

Administrative file No. 2023031840, and Report No. 306-2024-SMV/10.3, issued by the General Intendancy of Prudential Compliance; as well as the discharges presented by Autoplan Empresa Administradora de Fondos Colectivos S.A.; 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 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 made to the SMV;

I. FACTS

2. Within the supervision functions assigned to the SMV, an evaluation was made of the timely compliance in the presentation of periodic information by Autoplan Empresa Administradora de Fondos Colectivos S.A. (hereinafter, AUTOPLAN EAFC);

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 LPAG), by means of Official Letter No. 3459-2023-SMV/10.3, notified on 25 July 2023 (hereinafter, OFFICIAL LETTER OF CHARGES), charges were formulated against AUTOPLAN EAFC for failing to comply with the “Norms on 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, NORMS), in force at the time of the commission of the facts, and the Regulation of the System of Collective Funds and their Administering Companies, approved by SMV Resolution No. 020-2014-SMV/01 and its amendments (hereinafter, REGULATION) by not having presented, within the term established by the regulations applicable to administering companies, the following information:

a) The individual interim financial statements of AUTOPLAN EAFC corresponding to the second quarter of fiscal year 2022, approved by the General Management on 30 June 2022 and submitted to the SMV on 27 July 2022 1 . However, according to the applicable regulations, AUTOPLAN EAFC should have presented said information on the day of its approval;

b) The Management Report of AUTOPLAN EAFC corresponding to the second quarter of fiscal year 2022, approved on 30 June 2022 and submitted to the SMV on 27 July 2022 2 . However, according to the applicable regulations, AUTOPLAN EAFC should have presented said information on the day of its approval;

4. The aforementioned non-compliances are typified 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 an infraction of a minor nature: “Presenting outside the established term, or doing so incompletely, or, without observing the technical specifications approved by the SMV or without communicating the approval by the corresponding corporate body, to the SMV, to the Exchange, to the entity in charge of the centralized negotiation mechanism or to any other entity or subject of the securities market, the audited individual or consolidated financial information, the individual or consolidated interim financial statements, management report, special audit report, material facts and annual reports”;

5. By writing of 15 September 2023, AUTOPLAN EAFC requested an extension for the presentation of its discharges; which was granted by Official Letter No. Official Letter No. 4298-2023-SMV/10.3, notified on 18 September 2023. In this sense, on 27 June 2023, AUTOPLAN EAFC presented the discharges to the observations made;

6. The charges formulated, as well as the discharges presented by AUTOPLAN EAFC have been subject to evaluation by the General Intendancy of Prudential Compliance in Report No. 306-2024-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 OF THE LPAG, by means of Official Letter No. 959-2024-SMV/10, the administrative file to which this resolution refers was made available to AUTOPLAN EAFC for its review;

II. ISSUES TO BE DETERMINED

[1] File No. 2022031241.

[2] File No. 2022031241.

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

a. Whether AUTOPLAN EAFC incurred or not in infraction by not having presented the individual interim financial statements corresponding to the second quarter of fiscal year 2022, subject of charges, within the term established in article 5 of the NORMS;

b. Whether or not AUTOPLAN EAFC incurred an infraction by not having submitted the management report corresponding to the second quarter of fiscal year 2022, the subject of the charges, within the period established in article 5 of the NORMS.

c. Whether or not a sanction should be imposed on AUTOPLAN EAFC;

III. ANALYSIS

3.1 Of the applicable regulations

9. With regard to the submission of interim financial information and the Management Report that collective fund management companies must submit to the SMV, article 73, literal a) of the REGULATION provides the following:

“Article 73.- Information on the Administrator The Administrator must submit to the SMV the following: a) The interim financial information, individual or separate and consolidated, as well as the Management Report, in accordance with the provisions established in the norms that regulate the preparation and presentation of financial information of the Administrator. (…)” (Underline added);

10. Regarding the aforementioned, articles 2 and 5 of the “NORMS, in force at the time of the commission of the facts, provide the following:

“Article 2.- Obligation to submit financial information and annual report Issuing companies with securities registered in the RPMV, legal entities registered in the RPMV, collective fund management companies, and Investment Funds are obliged to submit to the SMV their annual individual or separate financial statements and interim individual or separate financial statements and annual report. Additionally, issuing companies with securities registered in the RPMV, legal entities registered in the RPMV whose special regulation requires it, and Investment Funds must prepare the Management Report referred to in Chapter VIII of the Financial Information Regulation, in accordance with the guidelines set out in Section Three of the Manual for the preparation of financial information, and submit it together with the interim individual or separate financial statements”. (Underline added);

“Article 5.- Deadlines for submission of interim individual or separate and consolidated financial statements Issuing companies with securities registered in the RPMV, legal entities registered in the RPMV and collective fund management companies must submit the interim individual or separate and interim consolidated financial statements, as applicable, to the SMV and, if applicable, to the entities responsible for the operation of centralized trading mechanisms, on the day they have been approved by the corresponding body. Such entities have as the deadline for the respective approval of the interim individual or separate financial statements of the first three quarters April 30, July 31 and October 31 of each year; (…) For the fourth quarter, the deadline for the approval of the interim individual or separate financial statements is February 15 of each year (…)” (Underline added);

3.2. Of the charges formulated

11. By means of the OFFICIAL LETTER OF CHARGES, charges were formulated against AUTOPLAN EAFC for not communicating, within the period established by the regulations, the periodic information indicated in the third recital of this resolution;

3.3. Of the defenses presented

12. In response to the charges made, by means of a document submitted on September 27, 2023, AUTOPLAN EAFC states that article 257 of the Single Ordered Text of Law No. 27444 and literals a) and b) of article 26 of the SANCTIONS REGULATION establish as mitigating factors the acknowledgment of the infraction and the contribution of the offender to the clarification of the infraction;

13. In this regard, and after citing the aforementioned provisions, AUTOPLAN EAFC expressly, precisely, concisely, clearly and unconditionally acknowledges its responsibility regarding the infractions imputed in the OFFICIAL LETTER OF CHARGES, for which reason it requests the application of this mitigating factor of responsibility;

14. Additionally, AUTOPLAN EAFC considers that through the information in the file and that it presented in due course, it could be considered, ex officio, whether it falls within the assumption established in literal b) of article 26 of the SANCTIONS REGULATION, taking into consideration all the information presented for the clarification of the infraction (the management company states it attaches the submission charges);

15. In view of the foregoing, the management company requests that this mitigating factor also be considered for its responsibility in determining the sanction that should be imposed;

16. Therefore, AUTOPLAN EAFC requests that the acknowledgment of responsibility set forth be accepted, and that its contribution to the clarification of the infraction be taken into account as another mitigating factor, in accordance with the provisions of article 26 of the SANCTIONS REGULATION and article 257 of the Single Ordered Text of Law No. 27444;

3.4 Evaluation of the defenses

17. In principle, it should be noted that AUTOPLAN EAFC has acknowledged the commission of the two (02) infractions imputed, as indicated in the OFFICIAL LETTER OF CHARGES;

18. Notwithstanding the foregoing, it should be mentioned that by SMV Resolution No. 013-2023-SMV/02 of December 6, 20233,

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

the “Norms on Preparation, Presentation 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, that is, among others, for Collective Fund Management Companies, as well as the funds they manage;

19. In this regard, although the NEW RULES entered into force as of 11 December 2023, considering the provisions of article 248, numeral 5 of the TUO LPAG, they have retroactive effect insofar as they are more favorable to the administered party, and therefore, taking into account that articles 154 and 215 of the NEW RULES, with respect to literals a) and b) of the third recital of this resolution, it must be considered that AUTOPLAN EAFC had as its maximum deadline to submit to the SMV its individual interim financial statements and the management report corresponding to the second quarter of fiscal year 2022 until 31 July 2022, regardless of the day of the date of approval of the information in question;

20. In this sense, as can be seen in the STATEMENT OF CHARGES, AUTOPLAN EAFC submitted the information described in literals a) and b) of the third recital of this resolution on 27 July 2022, that is, within the deadline established in articles 15 and 21 of the NEW RULES, that is, until 31 July 2022; and, consequently, the provisions of the aforementioned articles are applicable in this administrative sanctioning procedure, since it is more favorable to the administered party with respect to the commission of the infraction that AUTOPLAN EAFC would have committed;

21. In this sense, upon verifying that AUTOPLAN EAFC submitted the individual interim financial statements and the Management Report corresponding to the second quarter of fiscal year 2022 within the deadline established in articles 15 and 21 of the NEW RULES, it is appropriate to archive the charge formulated in this administrative sanctioning procedure, in application of the principle of benign retroactivity, contained in numeral 5 of article 248 of the TUO LPAG;

22. 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;

[4] “Article 15.- Approval and deadline for submission of individual or separate interim financial statements 15.1 The individual or separate interim financial statements must be approved by the general management or by the board of directors of the obligated subjects, as the case may be, of the competent body designated for such purpose. The financial statements must be digitally signed by a public accountant authorized to practice the profession and by the legal representative of the obligated subject. 15.2 In the case of issuers, the individual or separate interim financial statements must be submitted to the SMV on the date of their approval for their respective dissemination. 15.3 April 30, July 31 and October 31 of each year and February 15 of the following year are the due dates for the submission of the individual or separate interim financial statements for the first, second, third and fourth quarter, respectively.”

[5] “Article 21.- Management Report 21.1. Issuers and legal entities registered in the RPMV, whose special regulation requires it, must prepare the Management Report, which must be submitted together with the individual or separate interim financial statements. (…).”

RESOLVES:

Article 1.- Declare that Autoplan Empresa Administradora de Fondos Colectivos S.A. has incurred in one (1) infraction of a minor nature typified in Annex I, numeral 3, subsection 3.1 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for submitting outside the deadline established in the applicable regulations the individual interim financial statements corresponding to the second quarter of fiscal year 2022, in application of the principle of benign 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, to conclude this administrative sanctioning procedure.

Article 2.- Declare that Autoplan Empresa Administradora de Fondos Colectivos S.A. has incurred in one (1) infraction of a minor nature typified in Annex I, numeral 3, subsection 3.1 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for submitting outside the deadline established in the applicable regulations the management report corresponding to the second quarter of fiscal year 2022, in application of the principle of benign 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, to conclude this administrative sanctioning procedure.

Article 3.- Declare the archiving of the infractions referred to in articles 1 and 2 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, to conclude this administrative sanctioning procedure.

Article 4.- This resolution does not exhaust the administrative route, unless it is consented to, and may be challenged before the Deputy Superintendency of Prudential Supervision by filing a reconsideration appeal, submitted to the same, within a period of fifteen (15) business days counted from the day following its notification.

Article 5.- Transcribe this resolution to Autoplan Empresa Administradora de Fondos Colectivos S.A.

Register, communicate and publish.

Omar Gutiérrez Ochoa
Deputy Superintendent
Deputy Superintendency of Prudential Supervision