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

Superintendency Resolution Adjunta SMV No. 035-2024-SMV/10

Lima, 27 June 2024

Summary: The reconsideration appeal filed by Diviso Fondos Sociedad Administradora de Fondos S.A. against Superintendency Resolution Adjunta SMV No. 029-2022-SMV/10 is declared unfounded.

Administered
:
Diviso Fondos Sociedad Administradora de Fondos S.A.
Subject
:
Reconsideration appeal against Resolution of
Superintendency Adjunta SMV No. 029-2022-SMV/10 File No.:
2022004527

The Deputy Superintendent of Prudential Supervision

VIEWS:

Administrative file No. 202204527, the reconsideration appeal filed by Diviso Fondos Sociedad Administradora de Fondos S.A. against Superintendency Resolution Adjunta SMV No. 29-2022-SMV/10 and Report No. 791-2024-SMV/10.3, issued by the General Intendancy of Prudential Compliance; and

CONSIDERING:

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

I. BACKGROUND

2. By Superintendency Resolution Adjunta SMV No. 029-2022-SMV/10 (hereinafter, RESOLUTION), it was resolved to sanction Diviso Fondos Sociedad Administradora de Fondos S.A. (hereinafter, DIVISO SAF) with 6.15 UIT, equivalent to S/ 25 522,50 (twenty-five thousand five hundred twenty-two and 50/100 Soles) and ten (10) warnings, for having incurred two (2) infractions of a minor nature typified in Annex I, numeral 3, subparagraph 3.1, of the Sanctions Regulations, approved by CONASEV Resolution No. 055-2001-EF-94.10 (hereinafter, FORMER SANCTIONS REGULATIONS), and ten (10) infractions of a minor nature typified in Annex I, numeral 3, subparagraph 3.1, of the Sanctions Regulations, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATIONS), for failing to submit eventual information within the term established by the applicable regulations;

3. By document presented on 24 November 2022, DIVISO SAF filed a reconsideration appeal against the RESOLUTION;

II. ON THE ADMISSIBILITY OF THE RECONSIDERATION APPEAL

4. According to the provisions of Article 32, numeral 27 of the Regulations of Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF, it is the function of the Deputy Superintendency of Prudential Supervision to resolve reconsideration appeals against the resolutions it issues;

5. Likewise, Article 218 numeral 218.2 of the Single Ordered Text of the General Administrative Procedure Law, Law No. 27444, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO OF THE LPAG), establishes that the term for filing appeals is fifteen (15) peremptory days. According to the provisions of Article 144 of the TUO OF THE LPAG, the aforementioned term shall begin to count from the day following the legal notification of the challenged administrative act;

6. In this regard, it has been verified that the reconsideration appeal was filed within the term established by Article 218 of the TUO OF THE LPAG;

7. Pursuant to Article 219 of the TUO OF THE LPAG, the reconsideration appeal is filed before the same body that issued the act subject to challenge and must be supported by new evidence. However, in cases of administrative acts issued by bodies that constitute a single instance, new evidence is not required;

III. ON THE ARGUMENTS PRESENTED BY DIVISO SAF

8. DIVISO SAF states that the fourth recital of the RESOLUTION establishes that the non-compliances mentioned in literals a) and b) of the third recital are typified in Annex I, numeral 3, subparagraph 3.1 of the FORMER SANCTIONS REGULATIONS, in force at the date of the commission of the facts;

9. In this regard, it mentions that a correct normative analysis of the exempting conditions of responsibility in force at the date of the commission of the facts has not been carried out, so no sanction should have been imposed regarding said minor infractions;

10. After citing Article 6 of the SANCTIONS REGULATIONS1, and Article 236-A of the General Administrative Procedure Law –

[1] "Article 6.- CRITERIA AND MITIGATING FACTORS TO CONSIDER FOR THE IMPOSITION OF SANCTIONS Administrative sanctions that are imposed must take into account the criteria established in Article 348 of the Law or Article 7 of Decree Law No. 21907 on Collective Fund Management Companies, as applicable; and numeral 3 of Article 230 of the Procedure Law. Likewise, the voluntary declaration of the commission of the infraction, the contribution of the offender for its clarification and the mitigating factors of responsibility established in Article 236-A of the Procedure Law shall be taken into account.

Law No. 274442, DIVISO SAF states that, on 20 March 2017, Supreme Decree No. 006-2017-JUS was published, through which the TUO of Law 27444- General Administrative Procedure Law was approved, whose norm regulated the exempting and mitigating factors of responsibility for infractions in Article 255, as follows:

"Article 255.- Exempting and mitigating factors of responsibility for infractions 1.- The following constitute exempting conditions of responsibility for infractions:

a) The duly proven fortuitous event or force majeure.

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 aptitude to understand the infraction.

d) The mandatory order of 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 infraction, prior to the notification of the imputation of charges referred to in subsection 3) of article 253.

2.- The following constitute mitigating conditions of liability for infractions:

a) If, once an administrative sanctioning procedure has been initiated, the offender expressly and in writing acknowledges their responsibility.

In cases where the applicable sanction is a fine, it is reduced to an amount no less than half of its amount.

b) Others established by special norm.”

[2] When the evaluation of the aforementioned criteria and mitigating factors allows concluding that there is no proportionality between the sanction to be imposed and the imputed facts, by exception and through a reasoned resolution, a sanction corresponding to a lower classification than the one provided may be imposed. For the determination of the sanction for non-compliance with the norms that regulate the timeliness in the presentation of periodic or occasional information of the issuer with securities registered in the Public Registry of the Securities Market, of legal entities registered in the Registries under the charge of the SMV, and other persons obligated to present such information, the Board of Directors of the SMV sets the sanction parameters that develop and specify the sanction criteria established in the aforementioned laws for their better and uniform application". (Emphasis own of DIVISO SAF)

[2] The General Administrative Procedure Law - Law 27444, established the following: “Article 236-A.- Exemptions and mitigations of liability for infractions 1.- The following constitute exempting conditions of liability for infractions: a) The duly proven fortuitous event or force majeure. 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 aptitude to understand the infraction. d) The mandatory order of 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 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 been initiated, the offender expressly and in writing acknowledges their responsibility. In cases where the applicable sanction is a fine, it is reduced to an amount no less than half of its amount. b) Others established by special norm.” (Emphasis own of DIVISO SAF)

(Emphasis own of DIVISO SAF)

11. DIVISO SAF indicates that by having corrected the presentation of the information considered as material facts on 13 September 2019, the voluntary correction by the possible sanctioned party of the act has been complied with before the notification of imputation of charges, insofar as this occurred on 03 February 2022, therefore the administering company considers that said correction should be considered as an exempting condition of liability;

12. DIVISO SAF indicates that at the date of occurrence of the facts mentioned in subsections a) and b) of the third recital of the RESOLUTION, the PREVIOUS SANCTIONS REGULATION was in force, while at the date on which the sanction is imposed the SANCTIONS REGULATION is in force. It states that although the SANCTIONS REGULATION establishes that the exemptions from liability do not apply to material facts left uncommunicated or communicated late, the resolution has not taken into account the principle of Non-retroactivity of the principles of administrative sanctioning power, which establishes that the sanctioning provisions in force at the time the administered party incurs the conduct to be sanctioned are applicable, unless subsequent ones are more favorable to them;

13. Likewise, the administering company states that article 86 of the TUO OF THE LPAG establishes that administrative norms must be interpreted in the manner that best serves the public purpose to which they are directed, reasonably preserving the rights of the administered parties;

14. In that sense, it alleges that the administrative sanction has mainly two purposes: i) to repress or retribute the commission of typified unlawful conducts; and, ii) to dissuade or prevent the occurrence of conducts that are desired to be discouraged;

15. It states that voluntary correction as an exemption from liability is directly related to the second purpose, since it seeks to incentivize the offender to comply with the obligation or dissuade them to correct their conduct before the state sanctioning apparatus is activated. The sanction, therefore, is not an end, but a means to incentivize compliance with the norms, whether through repression or through dissuasion;

16. DIVISO SAF adds that article 51 of the Constitution enshrines the principle of normative hierarchy and normative supremacy of the Constitution, providing that the Constitution prevails over all legal norms and the law over norms of inferior hierarchy and so on;

17. In that sense, it states that insofar as literal f) of numeral 1 of article 236-A of the General Administrative Procedure Law - Law 27444 (a norm of statutory rank) does not establish any greater limitation for the configuration of the exemption through voluntary correction than that it be carried out prior to the notification of the imputation of charges; the Administration cannot make distinctions through resolutions (a norm of lower rank than a law) where the law does not express them, much less to the detriment of the administered party that has corrected and complied with the purpose of the norm;

IV. EVALUATION OF THE ARGUMENTS PRESENTED

18. In principle, it should be noted that the appeal filed by DIVISO SAF is only referred to the parts of the RESOLUTION relating to the infractions described in literals a) and b) of the third recital of the RESOLUTION, which consist of the following:

a) The material fact referring to the communication of the excess investment of the mutual investment fund named “Diviso Conservador Soles FMIV”3 (hereinafter, FONDO CONSERVADOR SOLES) in the entity Mi Banco, which occurred on 27 September 2018. Said fact should have been communicated on 28 September 20184, however, it was reported to the RPMV on 13 September 20195; and,

b) The material fact referring to the communication of the excess investment of the mutual investment fund named “Diviso Conservador Dólares FMIV” (hereinafter, FONDO CONSERVADOR DÓLARES), in the entities Bolsa de Valores de Lima S.A.A., Diviso Grupo Financiero S.A., and Medrock Corporation SAC., which occurred on 5 December 2018. Said fact should have been communicated on 6 December 20186, however, it was reported to the RPMV on 13 September 20197;

19. DIVISO SAF states that through the RESOLUTION no correct normative analysis has been made of the conditions exempting liability in force at the date of the commission of the facts, imposing a sanction for the minor infractions described above. Nevertheless, through recitals 57 to 62 of the RESOLUTION it is analyzed whether the exemptions from liability established in the FORMER SANCTIONS REGULATION, the SANCTIONS REGULATION and the TUO OF THE LPAG are applicable, as seen below:

“(…)

57. In addition to the foregoing, it is appropriate to analyze the exempting and mitigating circumstances of liability8 established in article 257 of the TUO OF THE LPAG9, in article 6 of the SANCTIONS REGULATION, and in articles 26 and 27 of the NEW SANCTIONS REGULATION;

[3] By Resolution No. 080-2021-SMV/10.2 of 18 August 2021, it was resolved, among others, that the mutual investment fund in securities named “Diviso Extra Conservador Soles FMIV” be hereinafter named “Diviso Conservador Soles FMIV”.

[4] In accordance with the provisions of numerals 2, literal b), 3.1 and 5.5 of the Technical Specifications of the Information to be submitted by the Mutual Fund Management Companies for Investment in Securities, approved by General Management Resolution No. 058-2010-EF/94.01.2 (hereinafter, TECHNICAL SPECIFICATIONS) investments are reported daily and the frequency of sending information is no later than 20:00 hours of the next business day, so if the referred excess occurred on 27 September 2018, as indicated by DIVISO SAF, it became aware on 28 September 2018.

[5] File No. 2019037531.

[6] Ibid. 2.

[7] File No. 2019037531.

[8] Article 2 of Legislative Decree No. 1272 modified article 236-A of the LPAG and in that sense incorporates and restructures the exempting and mitigating circumstances of liability, respectively.

[9] “Article 257.- Exemptions and mitigations of liability for infractions 1.- The following constitute conditions exempting 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 aptitude 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 correction 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 conditions mitigating liability for infractions:

58. In that sense, in accordance with the provisions of article 257, numeral 1 of the TUO OF THE LPAG and article 27 of the NEW SANCTIONS REGULATION, it is not observed that in the present case any of the assumptions constituting conditions exempting liability has been configured;

59. In this regard, it should be noted that the application of the exemption from liability for voluntary correction before the notification of the imputation of charges, established in article 257, numeral 1, literal f) of the TUO OF THE LPAG is subject to the correction of the very act constituting the imputed infraction or omission, not the consequences of administrative infractions;

60. In that sense, from the infraction type imputed in the present case, it follows that the constitutive elements of the infractions regarding untimely presentation10 is precisely the failure to deliver information and/or documentation within a determined period, so that, taking into account the specific type of infraction, the failure of timely presentation could not be corrected with a late presentation;

61. Likewise, it should be noted that there are conducts that are not eligible for voluntary correction, because in these cases it is not possible to reverse, repair or compensate the damage caused as a consequence of the commission of the infraction. Such is the case of the infraction for not timely presenting material facts by the management companies, because their late submission causes immediate harm to market transparency11, which is the protected legal interest;

62. Therefore, as noted, the exemption from liability contained in article 257, numeral 1, literal f) of the TUO DE LA LPAG is not applicable to the present case;

(…)”.

(Underline added);

20. From DIVISO SAF's arguments, it is noted that the management company considers that the RESOLUTION, when analyzing the alleged exemptions and mitigating circumstances of liability, only considers the SANCTIONS REGULATION in force as of 19 December 2018, which expressly establishes that the late or incomplete presentation, or the non-presentation of material facts, financial information and annual reports is not eligible for correction12. However, as highlighted in the cited recitals, the analysis

[a] If, once an administrative sanctioning procedure has been initiated, the offender expressly and in writing acknowledges their responsibility. In cases where the applicable sanction is a fine, it is reduced to an amount not less than half of its value.

[b] Others established by special rule.”

[10] It should be specified that Annex I, numeral 3, subsection 3.1 of the SANCTIONS REGULATION and of the NEW SANCTIONS REGULATION contain more than one type of infraction.

[11] According to the principle of transparency of the securities market, the information made available to investors and the general public must comply with certain conditions, such as truthfulness, sufficiency, and timeliness, in order to protect investors and promote efficient and transparent markets.

[12] “Article 28.- CASES IN WHICH CORRECTION DOES NOT APPLY AS AN EXEMPTION FROM LIABILITY Correction prior to the notification of the imputation of charges is not considered an exemption from liability when a communication demanding compliance with the obligation has been issued. They are not eligible for correction for the purposes of the provisions of literal f) of article 27: (…)

of the Resolution was made considering the provisions of the PREVIOUS REGULATION, the SANCTIONS REGULATION and article 257 of the TUO DE LA LPAG, explaining that the imputed infractions were not eligible for correction due to their nature. Consequently, the principle of non-retroactivity has not been violated by sanctioning the infractions subject to appeal;

21. On the other hand, while the management company argues that article 257, literal f) of the TUO DE LA LPAG does not establish limitations for the configuration of the exemption through voluntary correction made prior to the notification of imputation of charges, and that the administration cannot make distinctions through resolutions to the detriment of the administered party, it should be noted that, as indicated by author Natalia Zuñiga Arbildo13 “It is clear that although the law does not make distinctions (ie. it would be impossible for the law to cover all cases of potential infractions), practice does limit the possibility of correction, and there are situations in which it is not appropriate. Thus, cases may arise in which it is impossible to reverse the effects of an infraction”.;

22. Although article 257, literal g) of the Administrative Procedure Law does not expressly contain restrictions on the application of the exemption from liability of voluntary correction in addition to carrying out the correction before the imputation of charges, it follows from the same article that there are infractions that are eligible for correction and others that are not, such as those addressed in this analysis and whose characteristics were described in recitals 60 and 62 of the RESOLUTION;

23. Additionally, the arguments made by the Third Specialized Chamber in Contentious Administrative Matters in Resolution No. 7 of File No. 1231-2022 are cited:

“(…) Eighth.- Now, although article 255 of the TUO of Law No. 27444, approved by Supreme Decree D.S No. 006-2017-JUS, in force since 19 September 2017, and therefore applicable to the case, considers voluntary correction as a condition exempting from liability, such assumption is based on the premise that there are correctable and non-correctable obligations, without the norm specifying when one is in a given assumption, and it is therefore appropriate to carry out an evaluation in each particular case. Precisely, regarding the aforementioned exemption, national doctrine has indicated that not only will the concurrence of the described requirements be evaluated (before the start of the PAS), but also the correctable nature of the detected non-compliance, from the nature of the infracting conduct and from the effects it deploys, taking into account that there are infractions that, due to their own nature or by express legal provision, are not susceptible to being corrected10. Based on this, considering that as a constitutive element of the infractions, the untimely presentation is essentially the non-compliance with the delivery of information and/or documentation within a determined period, fixed in advance, as occurs in these proceedings; therefore, given the

[c] The late or incomplete presentation, or the non-presentation of material facts, financial information and annual reports”.

[13] ZUÑIGA ARBILDO, Natalia. Op. cit. Link: https://agnitio.pe/articulo/no-basta-con-pedir-perdon-la-interpretacion-de-oefa-respecto-a-la-causal-de-eximente-de-responsabilidad-por-subsanacion-voluntaria/

nature of the infraction conduct, the failure to timely file cannot be remedied with a late filing, hence it is easily inferred that the administrative offense detected, strictly speaking, is irremediable because the obligation was fulfilled outside the deadline, beyond the effects that this fact may generate.

Ninth.- Consequently, this Higher Chamber confirms that the exempting condition of liability contained in article 255, literal f), numeral 1 of the TUO of Law No. 27444 approved by D.S No. 006-2017-JUS11 as alleged by the plaintiff is not met; which leads to such argument being dismissed”.

24. Based on the foregoing, it is concluded that the arguments raised by DIVISO SAF in its reconsideration appeal have not disproved the grounds of the RESOLUTION, which served as the basis for imposing the sanction applied to said company14;

In accordance with the provisions of article 32, numeral 27, of the Regulations on Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF;

RESOLVES:

Article 1.- Declare unfounded the reconsideration appeal filed by Diviso Fondos Sociedad Administradora de Fondos S.A for the reasons set forth in this resolution.

Article 2.- Declare that the administrative remedy has been exhausted since the Resolution of Deputy Superintendence SMV No. 029-2022-SMV/10 has become final.

Article 3.- This resolution must be published on the Institutional Page of the SMV on the Single Digital Platform of the Peruvian State, in observance of the provisions of numeral 1, article 7 of the Policy on dissemination

[14] It should be noted that according to article 6, numeral 6.1 of the Gradualness Regime of Sanctions for late submission of financial information, annual report and material events, approved by SMV Resolution No. 007-2023-SMV/01 of 04 September 2023, in force as of 01 January 2024 (hereinafter, GRADUALNESS REGIME OF SANCTIONS), provides that the sanction of warning may be applied when the following assumptions are concurrently met: a) When the impact on market transparency is minimal. This statement is linked to the criterion of the seriousness of the damage to the public interest and/or protected legal interest; b) The infraction committed has not caused a concrete detriment to investors or associates; c) The offending subject has no prior record or, if any, they are sanctions corresponding to minor infractions imposed by the SMV that have become final in the four (4) years prior to the commission of the infraction being evaluated; d) The offending subject is not a repeat offender; e) The offender has not obtained benefits from its administrative infraction; and, f) It has not been proven that the offender acted with intent in the commission of the infraction.

Considering the foregoing in the present case, it is observed that with respect to the infractions subject to challenge, they have generated an impact on market transparency that is not minimal given that the information subject to the infractions was submitted 350 and 281 days late. In that sense, considering the provisions of literal d) referred to in the preceding paragraph, a fine sanction would correspond to be imposed.

On this matter, it is appropriate to indicate that, according to numeral 6.2.2 of the GRADUALNESS REGIME OF SANCTIONS, the considerations for the application of a fine sanction, in the case of non-compliance in the submission of material events, are the following: On the basis of two (2) UIT, ten percent (10%) of one (1) UIT will be added for each calendar day of delay up to forty (40) days equivalent to four (4) UIT additional to the base, additional percentage counted from the second day of delay, without prejudice to the fact that said amount could be higher if aggravating factors exist.

Therefore, the provisions of the GRADUALNESS REGIME OF SANCTIONS are not more beneficial for the administered. 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 Regulations, approved by SMV Resolution No. 035-2018-SMV/01.

Article 4.- Transcribe this resolution to Diviso Fondos Sociedad Administradora de Fondos S.A.

Register, communicate and publish.

Signed by: GUTIERREZ OCHOA Omar Dari
Reason:

Omar Gutiérrez Ochoa
Deputy Superintendent
Deputy Superintendence of Prudential Supervision