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Resolution of the Deputy Superintendent SMV

No. 044-2024-SMV/10

Lima, 31 July 2024

Summary: Autoplan Empresa Administradora de Fondos Colectivos S.A. is sanctioned with a fine of 7 UIT for having incurred in four (04) infractions: one (1) minor typified in Annex XIII, numeral 3, subparagraph 3.5 of the Sanctions Regulation for not complying with the deadline to communicate to the associate the date of return of their contributions after the end of the group; two (2) serious infractions typified in Annex XIII, numeral 2, subparagraph 2.16 of the Sanctions Regulation, for not complying with the provisions of the collective funds administration contract entered into with the associate related to i) not complying with the deadline to return contributions in favor of the associate at the end of their group in the liquidation stage, ii) not complying with proceeding with the return of contributions to the associate upon being favored in a quarterly draw; and, one (1) serious infraction typified in Annex I, numeral 2, subparagraph 2.1 of the Sanctions Regulation, for not presenting information required by the SMV within the framework of preliminary inquiries.

Administered	:	Autoplan Empresa Administradora de Fondos Colectivos S.A.
Subject	:	Administrative sanctioning procedure
File No.	:	2023047553

The Deputy Superintendent of Prudential Supervision

SEEN:

Administrative file No. 2023047553, and Report No. 724-2024-SMV/10.3, issued by the General Intendancy of Prudential Compliance; and,

CONSIDERING:

1. In accordance with article 1 of Law No. 29782, Law of Strengthening the Supervision of the Securities Market, the name of the National Supervisory Commission of Companies and Securities (CONASEV) is replaced by that of

Superintendency of the Securities Market (SMV), so any reference to CONASEV in legal norms shall be understood as made to the SMV;

I. FACTS

2. On 2 June 2017, MR.11 entered into with Autoplan Empresa Administradora de Fondos Colectivos S.A. (hereinafter, AUTOPLAN EAFC) the “Collective Funds Administration Contract of Autoplan EAFC S.A. Purchase Certificate Modality” No. 004417, Program “Autoplan-001”, Group No. 14, for the award of a purchase certificate of US$ 20,000.00 (Twenty thousand and 00/100 US dollars) (hereinafter, CONTRACT 1) and the “Collective Funds Administration Contract of Autoplan EAFC S.A. Purchase Certificate Modality” No. 004418, Program “Autoplan-001”, Group No. 14, for the award of a purchase certificate of US$ 10,000.00 (Ten thousand and 00/100 US dollars) (hereinafter, CONTRACT 2);

4. Group No. 14 of Program “Autoplan-001”, to which MR.1 belonged, had as its last assembly (No. 60) on 21 July 20222;

5. By means of the brief received on 10 February 2023, MR.1 filed a complaint before the Superintendency of the Securities Market (SMV) against AUTOPLAN EAFC3, in which he states that although the group to which his contracts belong ended, AUTOPLAN EAFC did not comply with returning his contributions corresponding to CONTRACT 1 and CONTRACT 2. Likewise, that AUTOPLAN EAFC would not have complied with communicating to him the date of return of his contributions within the term of the 10 days following the last assembly of the group. Additionally, in the complaint he stated that AUTOPLAN EAFC sent him an email dated 27 July 2022, informing him that he had been benefited with the quarterly draw of resolved contracts regarding CONTRACT 2. However, they did not provide him with further information on the procedure to follow to make said return effective and they also did not make the return. MR.1 attaches as part of his complaint, among others:

a. Copy of the first page of CONTRACT 1, which includes the general conditions.

b. Copy of the first page of CONTRACT 2, which includes the general conditions.

c. Copy of certain payment receipts made in favor of AUTOPLAN EAFC, corresponding to CONTRACT 1 and CONTRACT 2.

d. Copy of an email dated 27 July 2022 at 19:13 hours, sent by MRS.1 (contact@autoplan.pe), by means of which the following is communicated to MR.1:

(…) hereby we inform you that, having been selected as a beneficiary in the quarterly draw of AUTOPLAN, the respective calculations have been made for the refund of the credit balance. We attach the calculation of the credit balance and the schedule of payments made. (…)”.

[1] The Annex attached to this resolution details the complete data of the natural persons to whom the denominations used in this resolution belong, and also, if applicable, the email addresses.

[2] According to the document “Communication on Results of Subsequent Assemblies” dated 27 July 2022, reported by AUTOPLAN EAFC to the SMV (File No. 2022031208).

[3] File No. 2023006239.

Additionally, and in accordance with what is indicated in the complaint letter, the SEÑOR1 attached to said email a copy of the “Payment Schedule” as of 27 July 2022 with the installments paid and due under CONTRACT 2.

e. Copy of an email dated 29 July 2022 at 15:16 hours, sent by the SEÑOR1 to contacto@autoplan.pe, in response to the preceding email, stating: “Good afternoon, yes I am aware of the quarterly draw and I know that I was already due for the refund of my money, from one of my contracts, how are you going to refund the money to me? Since in your email you only tell me that I have been a beneficiary and mention the amount, but not how the refund of the money will be made. I will be awaiting your prompt response, thanks in advance. (…)”.

6. By Official Letter No. 722-2023-SMV/10.3, notified on 16 February 2023 (hereinafter, OFFICIAL LETTER), the complaint filed by the SEÑOR1 was forwarded to AUTOPLAN EAFC so that it may submit the corresponding comments, and it was requested, among other information, the following documentation and/or information:

(…

e. Copy of the response to the email dated 29 July 2022 sent by the COMPLAINANT to contacto@autoplan.pe, as well as the results of the quarterly draw in which the COMPLAINANT would have been selected as a beneficiary, according to the email sent by AUTOPLAN EAFC on 27 July 2022.

f. Specify whether, once the liquidation of the group corresponding to the CONTRACT began, the COMPLAINANT was informed of the refund date of their contributions and whether said refund was made (if applicable).

g. Copy of the account statements corresponding to the CONTRACT signed by its representative and the COMPLAINANT.

(…)”.

7. On 1 March 2023, AUTOPLAN EAFC submitted a document, by means of which it requested an extension of the term granted to submit the information and documentation required by the OFFICIAL LETTER;

8. By Official Letter No. 931-2023SMV/10.3, notified on 3 March 2023, the requested extension of the term was granted to AUTOPLAN EAFC;

9. On 31 March 2023, AUTOPLAN EAFC, in response to the OFFICIAL LETTER, indicated, among others, that on 22 March 2023 it signed with the SEÑOR1 an Extrajudicial Transaction (hereinafter, TRANSACTION). In accordance with the TRANSACTION, AUTOPLAN EAFC acknowledges in favor of the SEÑOR1 the sum of US$ 16,475.50 (Sixteen thousand four hundred seventy-five and 50/100 US dollars) for the concept of refund of contributions corresponding to CONTRACT 1 and CONTRACT 2. For their part, the SEÑOR1 voluntarily and irrevocably acknowledges that said commitment fully satisfies any economic claim that they may have now or in the future with the administering company;

10. Likewise, AUTOPLAN EAFC presents a copy of a document dated 22 March 2023, by means of which the SEÑOR1 withdraws their claims and from the procedure; as well as requests the archiving of the complaint4.

11. In that sense, AUTOPLAN EAFC presented the following documentation that is in the file:

[4] Without prejudice to the foregoing and by virtue of article 200, numeral 200.74 of the Single Ordered Text of Law No. 27444, General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS, the analysis of the facts contained in the complaint continued to the extent that these could violate the general interest, within which is verifying compliance with the regulations governing the collective funds system by AUTOPLAN EAFC.

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a. Copy of the TRANSACTION, signed by MR1 and Ms. Gabriela Alexandra Suarez Medina, on behalf of AUTOPLAN EAFC.

b. Copy of the document titled “Toc Biometrics” in which the DNI number and full name of MR1 are observed; as well as an alphanumeric code and the date 22 de marzo de 2023 at 14:30:03 hours. Likewise, a frontal photo is observed which would be the face of MR1.

c. Copy of the document dated 22 de marzo de 2023, by which MR1 withdraws his claims and the procedure initiated with the complaint filed against AUTOPLAN EAFC. In said document, the signature, name and DNI of MR1 are recorded.

d. Copy of the document titled “Toc Biometrics” in which the DNI number and full name of MR1 are observed; as well as an alphanumeric code and the date 22 de marzo de 2023 at 14:34:35 hours. Likewise, a frontal photo is observed which would be the face of MR1;

12. With Memorandum No. 3882-2023-SMV/10.3 notified on 21 de agosto de 2023, the request for the following information, as well as additional information, related to the complaint filed by MR1 was reiterated to AUTOPLAN EAFC:

“(…)

a. The minutes with the results of the quarterly draw in which the COMPLAINANT would have been benefited, according to the email sent by AUTOPLAN EAFC to the COMPLAINANT on 27 de julio de 2022. It should be noted that, by means of item e) of Memorandum No. 722-2023-SMV/10.35, notified to AUTOPLAN EAFC on 16 de febrero de 2022, said information was requested from them.

b. Proof of payment of US$ 16,475.50 (Dieciséis mil cuatrocientos setenta y cinco y 50/100 dólares americanos) recognized by its representative in favor of the COMPLAINANT, according to section 2.1 of the Out-of-Court Settlement signed with the COMPLAINANT on 22 de marzo de 2023, submitted by AUTOPLAN EAFC.

c. Copy of the account statements corresponding to the Autoplan EAFC S.A. Collective Fund Management Contract No. 0004417.

(…)”;

13. On 24 de agosto de 2023, AUTOPLAN EAFC filed a document, by which it requested an extension of the deadline granted to submit the information and documentation required by Memorandum No. 3882-2023-SMV/10.3;

14. With Memorandum No. 3965-2023-SMV/10.3, notified on 25 de agosto de 2023, the requested extension of the deadline was granted to AUTOPLAN EAFC;

15. By email dated 7 de setiembre de 2023 at 09:49 hours, the submission of the documentation and/or information required by Memorandum No. 3882-2023-SMV/10.3 was reiterated to AUTOPLAN EAFC;

16. On 07 de setiembre de 2023, AUTOPLAN EAFC sent the SMV the following documentation which is on file, in response to the request made by Memorandum No. 3882-2023-SMV/10.3:

a. Copy of the document entitled “SORTEO TRIMESTRAL JUNIO-21”, in which a list is observed stating the names, contract number and group of the

[5] “e. Copy of the reply to the email dated 29 de julio de 2022 sent by the COMPLAINANT to contacto@autoplan.pe, as well as the results of the quarterly draw in which the COMPLAINANT would have been benefited, according to the email sent by AUTOPLAN EAFC on 27 de julio de 2022.”

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beneficiaries in the quarterly draw of June 2021. Said list contains MR1 with CONTRACT 2 (item 14 of the list).

b. Copy of a bank transfer statement made by AUTOPLAN EAFC through BCP in the amount of US$ 3,475.50 (Three thousand four hundred seventy-five and 50/100 US dollars) in favor of MR1 dated 17 April 2023 at 18:30 hours.

c. Copy of a bank transfer statement made by AUTOPLAN EAFC through Banco Continental in the amount of US$ 13,000.00 (Thirteen thousand and 00/100 US dollars) in favor of MR1 dated 17 April 2023 at 18:23 hours;

17. Likewise, regarding the request made through item c) of Letter N° 3882-2023-SMV/10, it stated that “(…) since to date we have returned the amount contributed by the client, it is not possible to obtain a copy of the account statements corresponding to Contract N° 0004417”;

18. Through Letter N° 5110-2023-SMV/10.3 notified on 10 November 2023 (hereinafter, CHARGES LETTER), an administrative sanctioning procedure was initiated against AUTOPLAN EAFC, charging it with certain facts related to the complaint of MR1;

19. In a filing submitted on 22 November 2023, AUTOPLAN EAFC requested an extension for the submission of its defense;

20. Through Letter N° 5301-2023-SMV/10.3, notified on 22 November 2023, the requested extension was granted to AUTOPLAN EAFC;

21. AUTOPLAN EAFC has not submitted its defense to the administrative sanctioning procedure initiated by the CHARGES LETTER, to date;

22. The charges formulated have been subject to evaluation by the General Directorate of Prudential Compliance in Report N° 724-2024-SMV/10.3, which has been submitted to the knowledge of this Deputy Superintendency;

23. In observance of the Principle of Due Process contemplated both in article IV, paragraph 1, numeral 1.2 of the Preliminary Title, as well as in article 248°, numeral 2, of the Single Ordered Text of Law N° 27444, General Administrative Procedure Law, approved by Supreme Decree N° 004-2019-JUS (hereinafter, TUO LPAG), through Letter N° 2381-2024-SMV/10, the administrative file to which this resolution refers was made available to AUTOPLAN EAFC for its review;

II. ISSUES TO BE DETERMINED

24. In this administrative procedure, in the opinion of this Deputy Superintendency, the following must be determined:

a. Whether AUTOPLAN EAFC committed or did not commit an infringement set forth in Annex XIII, numeral 3, paragraph 3.5 of the Sanctions Regulations, approved by SMV Resolution N° 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATIONS), for failing to comply with the established deadline to contact the member in order to inform them of the date of the return of their contributions;

b. Whether AUTOPLAN EAFC committed or did not commit an infringement set forth in Annex XIII, numeral 2, paragraph 2.16 of the SANCTIONS REGULATIONS, for failing to meet the deadline

to make the return of contributions corresponding to CONTRACT 1 in favor of MR1;

c. Whether AUTOPLAN EAFC committed or did not commit an infringement set forth in Annex XIII, numeral 2, paragraph 2.16 of the SANCTIONS REGULATIONS, for failing to make the return of contributions corresponding to CONTRACT 2 in favor of MR1, after having benefited from the quarterly draw held in June 2021;

d. Whether AUTOPLAN EAFC committed or did not commit an infringement set forth in Annex I, numeral 2, paragraph 2.1 of the SANCTIONS REGULATIONS, for failing to provide the SMV with information that was requested from it;

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

III. ANALYSIS

3.1 On the applicable regulations

25. Regarding CONTRACT 1 and CONTRACT 2, article 21 of the Regulations for the Collective Funds System and their Management Companies, approved by SMV Resolution N° 020-2014-SMV-01 (hereinafter, REGULATIONS) provides:

“Article 21.- Contract The Contract is of a private nature and has a collective character, it regulates the relationships between the Members and the Manager, and it establishes the rights and obligations of both parties; its content is governed by the provisions of article 95 of the Regulations. (…)”. (Underlining added);

A. ON THE RETURN OF CONTRIBUTIONS

26. In relation to the return procedure for non-awarded members with a resolved contract, article 99, item a), last paragraph of the REGULATIONS states the following:

“Article 99.- Resolution of Contract (…) a) When it concerns a non-awarded Member,(…). The Member with a resolved Contract will participate in quarterly draws and if they benefit from the draw, the Capital Quotas contributed will be returned to them, deducting the penalties established in the Contract. If not benefiting from the draw, the Member with a resolved Contract will receive their contributions upon completion of the Group, with the deductions that apply according to what is established in the Contract. (…)” (Underlining added);

27. Article 122, fifth and sixth paragraph of the REGULATION, establishes the applicable procedure for the return of contributions to non-awarded associates with a terminated contract after the first assembly in which they are to participate:

“Article 122.- Return of contributions (…) In the other cases, when it is about Associates with some non-awarded Contract, the return of their contributions may be made through draws in Assembly according to the provisions of literal a) of article 99 of the Regulation, deducting the penalties established in the Contract.

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To the Associates with a terminated contract who were not benefited by the draw, their contributions will be returned at the end of the Group. (…).” (Underline added);

28. Article 123 of the REGULATION provides the moment in which a Group is considered finalized:

“Article 123.- Finalization of the Group A Group will be considered finalized when the duration term of the Group established in the Contract has expired.”;

29. Likewise, Clause 4, numeral 4.3 of CONTRACT 1 and CONTRACT 2 establishes:

“4. OF THE PAYMENT DEFAULT AND CAUSES FOR CONTRACT TERMINATION (…) 4.3 The non-awarded Associate who incurs in the payment default of three (03) consecutive Total Monthly Contributions, will incur in a cause for contractual termination, and Autoplan may terminate the Contract by operation of law, without the need for any prior notice, applying the provisions of Clause 11.2. (…);

30. In that context, clause 9, numeral 9.1, literal b) of CONTRACT 1 and CONTRACT 2 establishes:

“9. OF THE RIGHTS AND OBLIGATIONS 9.1 The following constitute rights of the Associates: (…) b) In case of termination of the Contract, the Associate will have the right to receive the return of the contributions that correspond according to the terms provided in the Causes for Contract Termination. (…);

31. Additionally, clause 11, numeral 11.2 of CONTRACT 1 and CONTRACT 2 establishes the following:

“11. OF THE CONTRACTUAL TERMINATION AND RETURN OF CONTRIBUTIONS (…) 11.2 NON-AWARDED ASSOCIATE: The Associate with a non-awarded Contract terminated after the term established in Clause 11.1, will only have the right to the return of the Capital Contributions made less a penalty equivalent to two (2) of them. The return will be made through quarterly draws, the mechanism to identify the non-awarded associate with a terminated contract benefited will be determined taking as reference the number of the winning ball of the Award Draw. (…) For the case of those non-awarded Associates with a terminated contract who are not benefited with the return of their contributions, the return will be made at the end of the Group in the liquidation stage, after deduction of the penalty and of what is owed for the Inscription Fee.” (Underline added);

32. In that sense, clause 12, numerals 12.1, 12.2 and 12.3 of CONTRACT 1 and CONTRACT 2 provide:

“12. ON THE LIQUIDATION OF THE GROUP

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12.1 A Group shall be considered finished when the duration term of the Group established in the Contract6 has expired. 12.2 When three (3) months have elapsed after the end of the group. 12.3 When the Group formally ends, the liquidation and return of the amounts corresponding to the Associates shall be carried out within a period no greater than sixty (60) days7. Likewise, once the Group has ended, Autoplan shall proceed with its liquidation and, within the (10) days following the last assembly of the group, shall notify the Associates with credit balances in writing of the date of return of their contributions, after deducting the corresponding amounts. (…)”. (Underline added);

B. ON THE DOCUMENTATION AND/OR INFORMATION REQUESTED FROM AUTOPLAN EAFC IN RESPONSE TO THE COMPLAINT FILED

33. Article 54 of the REGULATION establishes:

“Article 54.- Supervision and Control The Administrator must provide to the SMV officials the documentation, books, records, or other information required during inspections and other supervision and control actions. Consequently, the Administrator is prohibited from carrying out any action that may hinder, delay or impede the supervision and control actions of the SMV”;

3.2. On the charges formulated

A. ON THE COMMUNICATION OF THE DATE OF RETURN OF CONTRIBUTIONS

34. In accordance with the provisions of clause 12, numeral 12.3 of the contracts, AUTOPLAN EAFC had to notify the associates with credit balances in writing of the date of return of their contributions, within the 10 business days following the last assembly of the group;

35. Therefore, considering that the end of Group No. 14 of the AUTOPLAN 001 program was on 21 July 2022 (date of the last assembly of the group to which the complainant belonged), AUTOPLAN EAFC had until 8 August 2022 (10 business days after the end of the group) to notify MR.1 of the date of return of his contributions corresponding to CONTRACT 1. However, MR.1 stated in his complaint that AUTOPLAN EAFC did not comply with notifying him of the date on which it would return his contributions, which is why through the OFFICIAL LETTER, the administering company was requested to specify whether, once the liquidation of the group corresponding to CONTRACT 1 had begun, the complainant was notified of the date of return of his contributions. However, AUTOPLAN EAFC did not present the required information;

36. In view of the foregoing, it is observed that AUTOPLAN EAFC would not have complied with the provisions of clause 12, numeral 12.3, of CONTRACT 1, since it would have failed to notify MR.1 of the date of return of his contributions, within the 10 business days following the last assembly of Group No. 14;

37. Therefore, AUTOPLAN EAFC was charged with having incurred one (1) infraction classified as minor, according to Annex XIII, numeral 3, subparagraph 3.5 of the SANCTIONS REGULATION, according to which the following constitutes an infraction: “Failure to notify associates with a terminated contract, within the period established by the SMV, of the date of return of their contributions”:

[7] In accordance with the provisions of CONTRACT 1 and CONTRACT 2, the days referred to correspond to business days unless otherwise indicated.

B. ON THE PERIOD FOR RETURN OF CONTRIBUTIONS AFTER THE END OF THE GROUP

38. According to the facts set forth, on 02 June 2017, MR.1 signed with AUTOPLAN EAFC CONTRACT 1 and CONTRACT 2 for the purpose of acquiring two (2) purchase certificates that would be applied to the acquisition of a new vehicle. Likewise, as noted, said contracts were part of Group No. 14 of the “Autoplan-001” Program, which had a term of 60 months (5 years);

39. MR.1 made the payment of the monthly installments corresponding to both contracts up to the July 2019 period, because – as he indicated in his complaint – for personal reasons it was not possible for him to pay the subsequent monthly installments;

40. Consequently, in accordance with the provisions of clauses 4.3 and 4.68 of CONTRACT 1 and CONTRACT 2, AUTOPLAN EAFC proceeded to terminate said contracts;

41. In this regard, from the review of the information submitted by AUTOPLAN EAFC to the SMV9, through the “Associate Status File (SIT)” and recorded in the SMV's collective funds information systems, it was verified that MR.1 presents a “Terminated” status as of the date of the assembly of January 2020, with respect to CONTRACT 1 and CONTRACT 2; and with a withdrawal date10 of 30 December 2019. That is, according to the information reported by AUTOPLAN EAFC, MR.1's contracts were terminated on 30 December 2019;

42. In that context, taking into account that MR.1 had the status of terminated associate without an awarded asset and considering that both contracts were terminated after the first assembly in which MR.1 was to participate (7 July 2017), the application of article 122 of the REGULATION corresponds for the return of his contributions;

43. Article 122 of the REGULATION establishes that the return of contributions to associates with any non-awarded contract may be carried out through quarterly draws in assembly, in accordance with the provisions of subparagraph a) of article 99 of the REGULATION, deducting the penalties established in the contract. Likewise, it is established that associates with a terminated contract who were not beneficiaries of the quarterly draw will have their contributions returned at the end of the group;

44. Likewise, clause 11, numeral 11.2 of CONTRACT 1 and CONTRACT 2 establishes that the associate with a non-awarded contract terminated after the period established in clause 11.111 (one day before the holding of the first assembly in which they were to participate), will have their contributions returned through quarterly draws, and in the event of not being

[8] “4. ON PAYMENT DEFAULT AND CAUSES FOR TERMINATION OF THE CONTRACT (…) 4.6 In no case may the Contract be in a situation of arrears for more than three (03) consecutive months, after which period, Autoplan will terminate it by operation of law.”

[9] 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.

[10] Date on which an associate's contract ceases to belong to a group; in this case it corresponds to a terminated contract.

[11] “11. ON CONTRACTUAL TERMINATION AND RETURN OF CONTRIBUTIONS 11.1 The Associate who, up to one (1) day before the first Assembly, notifies Autoplan in writing of the termination of their Contract as indicated in Clause 2.3, shall be entitled to the return of the entirety of the contributions made. (…)”.

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beneficiary, the return will be made at the end of the group in the liquidation stage, after deduction of the penalty and any amount owed for the registration fee12;

45. It should be noted that, according to the information submitted by MR.1 and AUTOPLAN EAFC, MR.1 would have been a beneficiary in the quarterly draws for the return of their contributions with respect to CONTRACT 2, but not with respect to CONTRACT 1;

46. In this regard, it should be noted that clause 12, numeral 12.3 of CONTRACT 1 and CONTRACT 2 establishes that when the group formally ends, the maximum period for the return of the amounts corresponding to the associates is 60 business days. Therefore, considering that Group No. 14 of the “Autoplan-001” Program, to which MR.1 belonged, had a duration of 60 months, according to the information provided by AUTOPLAN EAFC, and that the last assembly (No. 60) was held on 21 July 202213, the date corresponding to the end of the group, AUTOPLAN EAFC had until 18 October 2022 (60 business days later) to make the return of the contributions in favor of MR.1, with respect to CONTRACT 1, which did not occur, since, according to the transfer receipts presented by AUTOPLAN EAFC, the management company transferred in favor of MR.1 the amount recognized in the TRANSACTION, amounting to US$ 16,475.50 (Sixteen thousand four hundred seventy-five and 50/100 US dollars) for the return of contributions corresponding to CONTRACT 1 and CONTRACT 2, on 17 April 2023;

47. Consequently, with respect to CONTRACT 1, it can be observed that between 18 October 2022 and 17 April 2023, almost six (6) months elapsed, without AUTOPLAN EAFC complying with the return of the contributions corresponding to MR.1, in accordance with the applicable regulations and CONTRACT 1 signed with AUTOPLAN EAFC;

48. It should be noted that, given the lack of return of their contributions, MR.1 went to the SMV's Investor Ombudsman, by email dated 28 November 2022, in order to obtain, among other things, the return of their contributions for CONTRACT 1. In response, AUTOPLAN EAFC replied on 28 December 2022, stating that it had a conciliatory proposal for the return of MR.1's contributions, which was finally completed with the return made on 17 April 2023;

49. Based on the foregoing, AUTOPLAN EAFC would not have complied with the provisions of clause 9, numeral 9.1, literal b), clause 11, numeral 11.2 and clause 12, numeral 12.3 of CONTRACT 1, since it would not have complied with the period for making the return of contributions in favor of the associate corresponding to CONTRACT 1, in accordance with the provisions of article 99, literal a) and article 122 of the REGULATION;

50. In this regard, AUTOPLAN EAFC was charged with having incurred one (1) infraction classified as serious, in accordance with Annex XIII, numeral 2, subsection 2.16 of the SANCTIONS REGULATION, according to which the following constitutes an infraction: “Failure to comply with the provisions of the collective fund management contract entered into with the associate”; since it would not have complied with the period for making the return of contributions, corresponding to CONTRACT 1, in favor of MR.1 at the end of their group, in the liquidation stage;

C. ON THE RETURN OF CONTRIBUTIONS THROUGH QUARTERLY DRAWS

[12] The deduction of the registration fee II is also established in clause 3, numeral 3.2 of CONTRACT 1 and CONTRACT 2.

[13] In accordance with the document “Communication on Results of Subsequent Assemblies” reported by AUTOPLAN EAFC to the SMV.

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51. On the other hand, in relation to CONTRACT 2, it should be noted that MR.1 presented a copy of an email dated 27 July 2022, which was sent to the complainant by MRS.1 (contacto@autoplan.pe) of AUTOPLAN EAFC, through which she informed MR.1 that he had been a beneficiary of a quarterly draw carried out by AUTOPLAN EAFC with respect to one of his contracts, CONTRACT 2, in accordance with what was stated by MR.1 in his complaint;

52. It should be noted that the email from AUTOPLAN EAFC to MR.1, informing him that he had been a beneficiary in the quarterly draw, was sent after the last assembly of the group, that is, when it had already ended. Additionally, although the complainant requested the administering company to explain the procedure of said refund through the email dated 29 July 2022-14, he did not receive a response from AUTOPLAN EAFC, as indicated by him. Likewise, the administering company was requested to present the response sent to MR.1 in response to the email sent on 29 July 2022. However, to date AUTOPLAN EAFC has not presented the required documentation;

53. In that sense, the respective request was made to AUTOPLAN EAFC for the Minutes with the results of the quarterly draw in which the complainant was a beneficiary, and in response it sent the document “Sorteo Trimestral Junio-21”, in which the results of the quarterly draw for the refund of contributions made in June 2021 corresponding, among others, to Group No. 14 of the “Autoplan-001” Program are observed. From the review of said document, it is noted that MR.1, with regard to CONTRACT 2, was a beneficiary in the quarterly draw for the refund of contributions to associates with contracts terminated without an awarded asset, carried out in June 2021;

54. Considering the foregoing, it is noted that although AUTOPLAN EAFC should have made the refund of the contributions corresponding to CONTRACT 2 from the date on which MR.1 was a beneficiary in the quarterly draw corresponding to June 2021, AUTOPLAN EAFC made the refund of the contributions corresponding to CONTRACT 2 on 17 April 2023, the date on which it also made the refund corresponding to CONTRACT 1, that is, at a date after the liquidation stage, after the end of the group to which MR.1 belonged and after the filing of his complaint before the SMV;

55. Likewise, given the lack of refund of his contributions, MR.1 went to the Investor Ombudsman of the SMV, through an email dated 28 November 2022, in order to obtain, among others, the refund of his contributions for CONTRACT 2. In response, AUTOPLAN EAFC replied on 28 December 2022, stating that it had a conciliatory proposal for the refund of MR.1's contributions, which was finally concluded with the refund made on 17 April 2023 for both contracts;

56. In that sense, AUTOPLAN EAFC would not have complied with the provisions of clause 9, numeral 9.1, literals b) and clause 11, numeral 11.2 of CONTRACT 2, since it did not refund the contributions corresponding to CONTRACT 2 in favor of the associate after being a beneficiary in the quarterly draw of June 2021, in accordance with the provisions of article 99, literal a) and article 122 of the REGULATION;

57. Therefore, it was imputed to AUTOPLAN EAFC that it would have incurred in one (1) infraction classified as serious, according to Annex XIII, numeral 2, subsection 2.16 of the SANCTIONS REGULATION, according to which constitutes

[14] It should be noted that said email was presented by MR.1 in his complaint brief.

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infraction: “Failure to comply with the provisions of the collective funds administration contract entered into with the associate”; since it would not have complied with making the refund of contributions corresponding to CONTRACT 2, in favor of MR.1 as a consequence of having been a beneficiary in the quarterly draw of June 2021;

D. ON THE DOCUMENTATION AND/OR INFORMATION REQUESTED FROM AUTOPLAN EAFC IN RESPONSE TO THE COMPLAINT FILED

58. Within the framework of the preliminary inquiries made in response to the complaint filed by MR.1, through the OFFICIAL LETTER notified on 16 February 2023, the administering company was requested to send information for the evaluation of said complaint, including the account statements corresponding to the collective funds administration contracts entered into with the complainant, within a period of seven (7) business days counted from the day following the notification of the OFFICIAL LETTER;

59. In response to the OFFICIAL LETTER, on 1 March 2023, the administering company requested an extension of the granted period, which was granted through Official Letter No. 931-2023-SMV/10.3. However, once the granted period ended, AUTOPLAN EAFC did not comply with presenting the required account statements;

60. Subsequently, through Official Letter No. 3882-2023-SMV/10.3, notified on 21 August 2023, the request for the submission of the account statements corresponding to CONTRACT 1 was reiterated to AUTOPLAN EAFC, as well as the request for additional information related to the complaint. For which a period of three business days after the notification of Official Letter No. 3882-2023-SMV/10.3 was granted, which expired on 24 August 2023;

61. In response to the aforementioned official letter, on 24 August 2023, AUTOPLAN EAFC requested an extension of the granted term, which was granted by Official Letter No. 3965-2023-SMV/10.3, granting an additional term of seven (7) business days, which expired on 5 September 2023;

62. However, upon verifying that AUTOPLAN EAFC had not complied with submitting the requested information after the term granted by Official Letter No. 3965-2023-SMV/10.3 expired, by email dated 7 September 2023 at 09:49 hours addressed to the email addresses rrios@alesecorp.com, dfarfans@autoplan.pe, dfarfans@icloud.com, msoldevilla@autoplan.pe, julio.sanchez@autoplan.pe, gsuarezm@aleseperu.com and gmontenegro@autoplan.pe, it requested the administering company to respond to the request made;

63. In that regard, on 7 September 2023 at 18:53 hours, AUTOPLAN EAFC partially submitted the requested information via Official Letter No. 3882-2023-SMV/10.3, since it did not comply with submitting the requested account statements. In this regard, AUTOPLAN EAFC stated that it was not possible for them to obtain a copy of the account statements corresponding to CONTRACT 1, because they had already made the return of the contributions made by the member;

64. On this matter, it should be noted that according to article 54 of the REGULATION, administering companies are obliged to provide SMV officials with the information required during inspections and other supervision and control actions, as is the case of preliminary inquiries in response to the filing of a complaint before the SMV;

65. Therefore, AUTOPLAN EAFC would not have complied with observing the provisions of article 54 of the REGULATION, since it did not comply with submitting the account statements of CONTRACT 1, despite the fact that said documentation was requested on more than one occasion by the SMV;

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66. In that regard, AUTOPLAN EAFC was charged with having incurred one (1) infraction classified as serious, according to Annex I, numeral 2, subsection 2.1 of the SANCTIONS REGULATION, according to which it constitutes an infraction: “Not presenting, denying or delaying the delivery of books, documents and other information required by the SMV during inspections or preliminary inquiries or any other oversight activity, not granting the facilities that the SMV requests in the execution of the supervision and control actions it orders; as well as presenting documentation, with the purpose of delaying the procedure, or not making available to the SMV the documentation to which they are obliged or in any other way obstructing the supervision and control actions”;

3.3. Of the defenses

67. In this regard, it should be noted that AUTOPLAN EAFC, as of the date of issuance of this resolution, has not submitted defenses to the charges formulated through the OFFICIAL LETTER OF CHARGES;

3.4. Evaluation of the charges

68. Without prejudice to the foregoing, it is necessary to note that AUTOPLAN EAFC is a company supervised by the SMV, with operating authorization granted by Superintendent Resolution No. 024-2015-SMV/02 of 17 February 2015 and is aware of the regulations under which the collective funds system operates, as well as the rights and obligations established in the contracts it administers, for which it has the obligation to act diligently as a collective funds administering company; however, this did not occur, since the administering company incurred in the commission of four (04) infractions subject to charges;

69. The aforementioned in the previous recital affects the fulfillment of its functions and obligations as a collective funds administering company; likewise, AUTOPLAN EAFC has the obligation to comply with the contract signed with its members, which establishes the rights and obligations of the members and the administering company and whose model is authorized by the SMV, at the request of the administering company;

70. Additionally, the Administrator must review its procedures to verify the content of the communications received from its members and give them timely attention, according to the contract and the established norms and thus avoid situations such as the one observed in this administrative sanctioning procedure;

A. ON THE COMMUNICATION OF THE DATE OF RETURN OF CONTRIBUTIONS

71. Indeed, in this case it is observed that AUTOPLAN EAFC did not comply with communicating to the SEÑOR1 the date of return of his contributions corresponding to CONTRACT 1, within the ten (10) business days following the last assembly of Group No. 14 (until 8 August 2022), failing to comply with the provisions of clause 12, numeral 12.3 of CONTRACT 1;

72. Consequently, it is noted that AUTOPLAN EAFC incurred one (1) infraction classified as minor, according to Annex XIII, numeral 3, subsection 3.5 of the SANCTIONS REGULATION, according to which it constitutes an infraction: “Not communicating to members with terminated contracts, within the term established by the SMV, the date of the return of their contributions”;

B. ON THE TERM OF RETURN OF CONTRIBUTIONS AFTER THE END OF THE GROUP

73. Likewise, it is observed that AUTOPLAN EAFC failed to comply with the deadline for returning contributions in favor of SEÑOR1 corresponding to CONTRACT 1, after the end of the group, at the liquidation stage, breaching the provisions of clause 9, numeral 9.1, literal b), clause 11, numeral 11.2 and clause 12, numeral 12.3 of CONTRACT 1. Said obligation was fulfilled by the administrator on 17 April 2023; that is, 181 days after the maximum date established for such purpose;

74. In that sense, it is noted that AUTOPLAN EAFC incurred one (1) infraction classified as serious, in accordance with Annex XIII, numeral 2, item 2.16 of the SANCTIONS REGULATION, according to which the following constitutes an infraction: “Failure to comply with the provisions of the collective funds administration contract entered into with the associate”;

C. ON THE RETURN OF CONTRIBUTIONS FOR QUARTERLY DRAWS

75. Indeed, it is observed that AUTOPLAN EAFC did not return the contributions corresponding to CONTRACT 2 in favor of SEÑOR1 as a result of being benefited in the quarterly draw held in June 2021, breaching the provisions of clause 9, numeral 9.1, literals b) and clause 11, numeral 11.2 of CONTRACT 2. Said obligation was fulfilled by the administrator on 17 April 2023; that is, 656 days after the maximum date established for such purpose;

76. Therefore, AUTOPLAN EAFC has incurred one (1) infraction classified as serious, in accordance with Annex XIII, numeral 2, item 2.16 of the SANCTIONS REGULATION, according to which the following constitutes an infraction: “Failure to comply with the provisions of the collective funds administration contract entered into with the associate”;

D. ON THE DOCUMENTATION AND/OR INFORMATION REQUESTED FROM AUTOPLAN EAFC IN RESPONSE TO THE COMPLAINT FILED

77. Additionally, from the evidence in the file, it is observed that AUTOPLAN EAFC failed to submit the account statements of CONTRACT 1 even though said information was requested by the SMV on more than one occasion, breaching the provisions of article 54 of the REGULATION;

78. In that sense, AUTOPLAN EAFC incurred one (1) infraction classified as serious, in accordance with Annex I, numeral 2, item 2.1 of the SANCTIONS REGULATION, according to which the following constitutes an infraction: “Failure to present, deny or delay the delivery of books, documents and other information requested by the SMV during inspections or preliminary inquiries or any other oversight activity, failure to provide the facilities that the SMV requests in the execution of the supervision and control actions it orders; as well as presenting documentation with the purpose of delaying the procedure, or failing to make available to the SMV the documentation to which they are obligated or in any other way obstructing the supervision and control actions”;

IV. EVALUATION OF THE SANCTION

79. In accordance with article 7 of Decreto Ley N° 21907 on Collective Funds Companies and article 25 of the SANCTIONS REGULATION; in accordance with article 248, numeral 315 of the TUO LPAG and article

[15] “Article 248.- Principles of administrative sanctioning power The sanctioning power of all entities is additionally governed by the following special principles: (…) 3. Reasonableness.- The authorities must foresee that the commission of the sanctionable conduct does not prove more advantageous for the offender than complying with the infringed norms or assuming the sanction. However, the sanctions to be applied must be proportional to the non-compliance classified as an infraction, observing the following criteria indicated for their gradation:

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25716 of the aforementioned normative body; the administrative sanctions imposed must take into account the criteria set forth by Decreto Ley N° 21907, the SANCTIONS REGULATION and the TUO LPAG;

80. Within that framework, the evaluation of the sanction must consider: a) Offender's antecedents; b) Recidivism; c) Circumstances of the commission of the infraction; d) Economic harm caused and its impact on the market; e) Illicit benefit resulting from the commission of the infraction; f) Probability of detection of the infraction; g) Severity of the harm to the public interest and/or protected legal interest; h) Existence or not of intent in the offender's conduct;

81. In that sense, in order to reconcile the criteria of the TUO LPAG with those indicated in Decreto Ley N° 21907 and in the SANCTIONS REGULATION, and so that these criteria are adequately considered so that their assessment observes the principle of reasonableness and the sanction to be imposed is adjusted to them, the following criteria are analyzed;

82. Regarding antecedents, in accordance with the provisions of article 25, literal a) of the SANCTIONS REGULATION, antecedents are final sanctions imposed by the SMV within the period of four (4) years prior to the commission of the infraction to be sanctioned. The aforementioned article specifies that the commission of the same infraction in the year prior to the infraction to be sanctioned is not considered an antecedent;

83. In that sense, from the review carried out in said period, it has been verified that AUTOPLAN EAFC records the following final sanctions:

No.	Resolution	Resolved	Finality	Antecedent (*)
i	Superintendency Adjunct Resolution SMV N° 112-2017-SMV/1017	AUTOPLAN EAFC is sanctioned with a fine of two (02) UIT, for having incurred one (01) infraction of a serious nature classified in Annex XIX, numeral 2, subparagraph 2.12 of the Sanctions Regulation approved by CONASEV Resolution No. 055-2001-EF/94.10 and its amending norms (hereinafter FORMER SANCTIONS REGULATION), for not having complied with submitting the First Semiannual Report of the Compliance Officer of the	12/12/2017	C

[16] a) The illicit benefit resulting from the commission of the infraction; b) The probability of detection of the infraction; c) The severity of the damage to the public interest and/or protected legal right; d) The economic harm caused; e) Recidivism, for the commission of the same infraction within a period of one (1) year from when the resolution that sanctioned the first infraction became final. f) The circumstances of the commission of the infraction; and g) The existence or not of intent in the conduct of the offender". 16 "Article 257.- Exemptions and mitigating circumstances of liability for infractions 1.- The following constitute conditions exempting liability for infractions: a) Fortuitous event or duly proven 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 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 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 255. 2.- The following constitute conditions mitigating 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 not less than half of its value. b) Others established by special norm".

[17] Notified on 17 November 2017.

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No.	Resolution	Resolved	Finality	Background (*)
		fiscal year 2015, within the term established in the Norms for the Prevention of Money Laundering and Financing of Terrorism.
ii	Resolution of the Deputy Superintendence SMV No. 017-2018-SMV/1018	AUTOPLAN EAFC is sanctioned with six (06) warnings and a fine of 15.48 UIT for having incurred eleven (11) infractions of a minor nature classified in Annex XIV, numeral 3, subparagraph 3.1 of the FORMER SANCTIONS REGULATION, for not having complied with submitting periodic information within the term established in the applicable regulations. By Resolution of the Deputy Superintendence SMV No. 070-2021-SMV/10, the reconsideration appeal filed by Autoplan EAFC was declared partially founded and consequently the amount of the fine imposed by article 17 of the Resolution of the Deputy Superintendence SMV No. 017-2018-SMV/10 was graduated to 9.675 UIT.	30/12/2021	A, B and D
iii	Resolution of the Deputy Superintendence SMV No. 011-2019-SMV/1019	AUTOPLAN EAFC is sanctioned with two (02) warnings for having incurred two (02) infractions of a serious nature classified in Annex XIV, numeral 2, subparagraph 2.21 and Annex XIV, numeral 2, subparagraph 2.41 of the FORMER SANCTIONS REGULATION, for not having adequately determined the order of preference of the substitute awardees.	11/04/2019	A, B, C and D
iv	Resolution of the Deputy Superintendence SMV No. 004-2020-SMV/1020	AUTOPLAN EAFC is sanctioned with a fine of three (03) UIT for having incurred two infractions: one (01) of a serious nature classified in Annex XIV, numeral 2, subparagraph 2.22 of the FORMER SANCTIONS REGULATION, for not complying with the conditions established in the regulations for the convening or holding of assemblies; and, one (01) of a minor nature classified in Annex XIV, numeral 3, subparagraph 3.13 of the FORMER SANCTIONS REGULATION, for not timely sending to the associate the information on the assembly calendar. By RSUP No. 119-2020-SMV/02, the appeal filed by AUTOPLAN EAFC was declared partially founded and consequently the sanction imposed as a fine in article 3 of the Resolution of the Deputy Superintendence SMV No. 004-2020-SMV/10 was modified, reducing it from three (3) UIT to two (2) UIT, in force at the time of effective payment of the fine; and, revoking the corrective measure ordered in article 4 of the aforementioned Resolution of the Deputy Superintendence.	01/12/2020	A, B, C and D
v	Resolution of the Deputy Superintendence SMV No. 013-2021-SMV/1021	AUTOPLAN EAFC is sanctioned with three (03) warnings and a fine of 28.0045 UIT for having incurred twenty (20) infractions of a minor nature classified in Annex XIV, numeral 3, subparagraph 3.1 of the FORMER SANCTIONS REGULATION and in two (02) infractions of a minor nature classified in Annex I, numeral 3, subparagraph 3.1, of the SANCTIONS REGULATION, for not having complied with submitting periodic information within the term established by the regulations	21/04/2021	A, B, C and D

[18] Notified on 11 May 2018.

[19] Notified on 21 March 2019.

[20] The resolution was subject to appeal by AUTOPLAN EAFC. Subsequently, by Superintendent Resolution No. 119-2020-SMV/02, the appeal was declared partially founded.

[21] Notified on 26 March 2021.

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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"

No.	Resolution	Resolved	Finality	Background (*)
		applicable referred interim financial information and management report.
vi	Deputy Superintendency Resolution SMV No. 060-2021-SMV/1022	AUTOPLAN EAFC is sanctioned with a fine of 18.3345 UIT for having incurred twelve (12) infractions of a minor nature typified in Annex I, numeral 3, subsection 3.1, of the SANCTIONS REGULATIONS, for failing to submit periodic information within the term established by the applicable regulations.	19/01/2022	A, B and D
vi	Deputy Superintendency Resolution SMV No. 003-2022-SMV/1023	AUTOPLAN EAFC is sanctioned with four (04) UIT for having incurred one (01) infraction of a serious nature typified in Annex XIV, numeral 2, subsection 2.6 of the PREVIOUS SANCTIONS REGULATIONS, for granting loans to third parties exceeding the limit established by the regulations.	17/03/2022	A, B and D
viii	Deputy Superintendency Resolution SMV No. 021-2022-SMV/1024	AUTOPLAN EAFC is sanctioned with a fine of 3.0855 UIT for having incurred two (2) infractions of a minor nature typified in Annex I, numeral 3, subsection 3.1, of the SANCTIONS REGULATIONS, for failing to submit periodic information within the term established by the applicable regulations.	02/11/2022	D
ix	Deputy Superintendency Resolution SMV No. 005-2023-SMV/1025	AUTOPLAN EAFC is sanctioned with a fine of 10 UIT for having incurred three (3) serious infractions typified in Annex XIII, numeral 2, subsection 2.16 of the SANCTIONS REGULATIONS, for failing to comply with the provisions of the collective fund administration contract entered into with the member by failing to resolve a contract on the requested date and failing to consider the member in the quarterly draws for the return of their contributions; failing to return contributions at the end of a group in the liquidation stage and failing to comply with the procedure established to contact the member in order to inform them of the date of return of their contributions; and failing to address a claim within the legal term.	08/03/2023	D

(*) Literals of recital 23.

84. With regard to recidivism for the commission of the same infraction, the final sanction imposed by the SMV within the term of one (1) year prior to the commission of the infraction to be sanctioned is taken into account. Within this framework, it must be stated that AUTOPLAN EAFC does not present sanctions within the aforementioned term, for the commission of the same infractions subject to analysis, in the present administrative sanctioning procedure, therefore recidivism is not configured;

85. With regard to the circumstances of the commission of the infractions, it must be mentioned that AUTOPLAN EAFC, in its capacity as a company supervised by the SMV, knows the rules that regulate the collective fund system and in that sense, the rules that oblige it to communicate and proceed with the return of contributions in accordance with the provisions of the REGULATIONS and in the contracts it administers; likewise, it knows the rules referring to the presentation of

[22] Notified on 29 December 2021.

[23] Notified on 24 February 2022.

[24] Notified on 6 October 2022.

[25] Notified on 14 February 2023.

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information required by the SMV during inspections and other supervisory and control actions;

86. It should be reiterated that AUTOPLAN EAFC has the obligation to comply with the contract signed with its associates, which establishes the rights and obligations of the associates and the administering company and whose model is authorized by the SMV, at the request of the administering company;

87. Notwithstanding the foregoing, in the present case it has been proven that AUTOPLAN EAFC failed to inform MR.1 of the refund date of his contributions corresponding to CONTRACT 1, failed to observe the term to make the contributions corresponding to CONTRACT 1, nor did it comply with the term to make the refund of contributions corresponding to CONTRACT 2 as a result of being favored in a quarterly draw, but rather proceeded to refund the contributions corresponding to the contracts signed by the complainant by virtue of an out-of-court settlement signed after the filing of the complaint by MR.1, that is, it complied with its obligation 181 days late with respect to CONTRACT 1 and 656 days late with respect to CONTRACT 2. Likewise, it is observed that it failed to submit the account statements of CONTRACT 1 even though such information was requested by the SMV on more than one occasion;

88. As for the economic harm caused and the impact on the market, in the present case, it has not been evidenced that the infractions incurred by AUTOPLAN EAFC have produced a specific quantifiable harm in the market. However, these facts affect the trust of associates or potential associates in the collective funds system;

89. Likewise, from the facts it is evidenced that harm has been caused to MR.1, since he could not dispose of the amount corresponding to the refund of his contributions corresponding to CONTRACT 1 and CONTRACT 2 as of 18 October 2022 (maximum date for the administering company to make the refund of contributions after the group has ended) and after he was favored in the quarterly draw of June 2021, respectively;

90. Additionally, it should be highlighted that the associate was obliged to go to the Investor Defense area of the SMV, by email dated 28 November 2022, in order to request a space for dialogue with AUTOPLAN EAFC and find a solution to his request for refund of contributions, among other matters, regarding the refund corresponding to his contracts. It should be noted that the refund was finalized at a later date, through the signing of an out-of-court settlement with MR.1 on 22 March and 2023, whereby, among others, AUTOPLAN EAFC acknowledged in favor of MR.1 the sum of US$ 16,475.50 (Sixteen thousand four hundred seventy-five and 50/100 US dollars) for the refund of the contributions of CONTRACT 1 and CONTRACT 2. Then, on 17 April 2023, by means of a bank transfer the administering company transferred the referred amount in favor of the complainant;

91. Therefore, the total amount of the contributions corresponding to MR.1 amounting to US$ 16,475.50 were in the possession of AUTOPLAN EAFC irregularly and illegally for almost six (6) months (181 days) with respect to CONTRACT 1 and twenty-two (22) months (656 days) with respect to CONTRACT 2 approximately, the use and profitability of said amount being at its discretion, to the detriment of MR.1 who could not make use and enjoyment of the money that corresponded to him according to law;

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92. It should be noted that MR.1 could have received a benefit or given it the corresponding utility based on his needs, if he had had his money timely to invest it;

93. Regarding the infractions set forth in literals A and D of recital 23 of this resolution, it has not been evidenced that these have caused a quantifiable economic harm to MR.1;

94. Regarding the illicit benefit resulting from the commission of infractions B and C, it must be considered that the funds paid by the associates must remain in the accounts of the collective fund until their total or partial refund to the associate. In cases where this is complied with, these funds do not constitute a source of financing for the administering company but for the other associates of the collective fund;

95. As for the infractions set forth in literals A and D of recital 23 of this resolution, it should be noted that it has not been proven that AUTOPLAN EAFC has obtained a benefit that bears a direct relation to said infractions;

96. Regarding the probability of detection of the infractions, it should be indicated that the facts constituting the infraction committed by AUTOPLAN EAFC were evidenced when verifying compliance with the regulations applicable to the development of its functions, based on the facts set forth by MR.1 in the complaint filed against the administering company, so the probability of detection of the infraction was low;

97. As for the seriousness of the harm to the public interest and/or protected legal interest, in the present case it has not been possible to prove that the conduct of AUTOPLAN EAFC in the commission of the infraction subject to analysis in this sanctioning procedure has caused determinable harm to the public interest;

98. However, it should be noted that according to the applicable regulations, AUTOPLAN EAFC had a period of ten (10) business days following the last group assembly to inform MR.1 of the date of return of his contributions corresponding to CONTRACT 1. Likewise, it is observed that AUTOPLAN EAFC had a maximum period of sixty (60) business days to make the return of said contributions, counted from the termination of the group to which the associate belonged. In addition to the foregoing, it is verified that it was obliged to return the contributions corresponding to CONTRACT 2 to MR.1, after he was benefited from the quarterly draw held in June 2021. Additionally, it has the obligation to provide the SMV officials with information required within the framework of inspections and other supervision and control actions;

99. Thus, taking into account that collective fund management companies have the obligation to act in strict compliance with the regulations applicable to them, such as the provisions established in CONTRACT 1, CONTRACT 2 and the REGULATIONS, in protection of the collective fund system, the transgression of said regulations affects the legal interest related to market integrity, that is, the collective fund system and especially affects the trust of associates or potential associates in the collective fund system;

100. Regarding the existence or not of intentionality in the conduct of the offender, it must be specified that no intentionality has been verified in the conduct of AUTOPLAN EAFC with respect to the infractions under analysis;

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101. However, in the present case it has been proven that AUTOPLAN EAFC did not return the contributions corresponding to its contracts to MR.1 within the period established in the regulations; rather, AUTOPLAN EAFC made said return at a later date through a bank transfer in favor of MR.1, by virtue of a transaction signed with the associate, after the filing of an informative complaint before the SMV;

102. In this sense, a lack of due diligence on the part of AUTOPLAN EAFC towards its associates is demonstrated; therefore, it is not admissible that a Collective Fund Management Company such as AUTOPLAN EAFC with several years operating in the market can ignore compliance with essential rules under which the Collective Fund system operates and the provisions of the contracts it administers;

103. In addition to the foregoing, it is appropriate to analyze the exempting and mitigating circumstances of responsibility established in article 257 of the TUO LPAG as well as the mitigating and exempting conditions of responsibility established in articles 26 and 27 of the SANCTIONS REGULATIONS;

104. In this regard, in accordance with the provisions of article 257, numeral 1 of the TUO LPAG and article 27 of the SANCTIONS REGULATIONS, it is not observed that in the present case any of the assumptions constituting exempting conditions of responsibility have been configured;

105. Likewise, in accordance with the analysis, it is not observed that in the present case any of the assumptions constituting mitigating conditions of responsibility have been configured. With regard to the voluntary declaration of the commission of the infractions (article 257, numeral 2 of the TUO LPAG) and the contribution of the offender for its clarification, established in article 26, literals a) and b) of the SANCTIONS REGULATIONS, it must be indicated that AUTOPLAN EAFC did not present defenses. Consequently, it has not expressly acknowledged the commission of the infractions under evaluation, nor has it contributed to their clarification;

106. From the foregoing, it is concluded that AUTOPLAN EAFC has incurred in the commission of one (1) infraction qualified as minor in Annex XIII, numeral 3, subparagraph 3.5, two (2) infractions qualified as serious in Annex XIII, numeral 2, subparagraph 2.16 of the SANCTIONS REGULATIONS and one (1) infraction qualified as serious in Annex I, numeral 2, subparagraph 2.1 of the SANCTIONS REGULATIONS, with respect to which it corresponds to impose on AUTOPLAN EAFC a sanction corresponding to the infractions qualified as serious in accordance with article 38 of the SANCTIONS REGULATIONS;

107. In this regard, it should be noted that because the infractions determined are of different nature, it corresponds to impose the sanction for the most serious infraction, as indicated in the second paragraph of article 2926 of the SANCTIONS REGULATIONS;

108. However, taking into account the sanctioning criteria analyzed, and in application of the Principle of Reasonableness contemplated in article 248, numeral 3 of the TUO LPAG which states that the sanctions to be applied shall be proportional to the non-compliance classified as an infraction, it must be considered that regarding the infractions subject to charges, it has not been evidenced that these have had an impact on the market or that the administrator has obtained any illicit benefit. Likewise, it has not been established that the company

[26] "Article 29.- CONCURRENCE OF INFRACTIONS (...) Likewise, when several conducts qualify as more than one infraction, the sanction corresponding to the most serious infraction is imposed."

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administrator had intentionality in its actions in this regard. In the same way, it has been verified that AUTOPLAN EAFC is not a repeat offender with respect to the infractions;

109. Additionally, regarding the infractions set forth in letters A and D of point 2.2 of recital 23 of this resolution, it has not been evidenced that these have caused quantifiable economic damage to MR.1;

110. In addition to the above, it must be noted that AUTOPLAN EAFC reached a settlement with the complainant and made the return of his contributions to MR.1, by means of a bank transfer in the amount of US$ 16,475.50 dated 17 April 2023, whose transfer receipt was submitted as proof of the total return made in favor of MR.1;

111. In that sense, in accordance with the provisions of the last paragraph of article 25 of the SANCTIONS REGULATIONS, this Deputy Superintendency considers that it is appropriate to impose on AUTOPLAN EAFC a fine sanction applicable to minor infractions, in accordance with the provisions of article 39 of the SANCTIONS REGULATIONS, amounting to 10 Tax Units - UIT for the infractions under evaluation in this administrative sanctioning procedure;

112. In accordance with the provisions of article 32°, numeral 16, of the Organization and Functions Regulations of the SMV, approved by Supreme Decree No. 216-2011-EF and its amendments;

RESOLVES:

Article 1º.- To declare that Autoplan Empresa Administradora de Fondos Colectivos S.A has incurred in one (1) infraction classified as minor as established in Annex XIII, numeral 3, subsection 3.5 of the Sanctions Regulations, approved by SMV Resolution No. 035-2018-SMV/01, for having failed to comply with the established deadline to contact MR.1 in order to communicate the date of the return of his contributions.

Article 2º.- To declare that Autoplan Empresa Administradora de Fondos Colectivos S.A has incurred in one (1) infraction classified as serious as established in Annex XIII, numeral 2, subsection 2.16 of the Sanctions Regulations, approved by SMV Resolution No. 035-2018-SMV/01, since it failed to meet the deadline to make the return of contributions in favor of MR.1 corresponding to CONTRACT 1, after the completion of the group, in the liquidation stage.

Article 3º.- To declare that Autoplan Empresa Administradora de Fondos Colectivos S.A has incurred in one (1) infraction classified as serious as established in Annex XIII, numeral 2, subsection 2.16 of the Sanctions Regulations, approved by SMV Resolution No. 035-2018-SMV/01, for not returning the contributions corresponding to CONTRACT 2 in favor of MR.1 as a consequence of having benefited from the quarterly draw held in June 2021.

Article 4º.- To declare that Autoplan Empresa Administradora de Fondos Colectivos S.A has incurred in one (1) infraction classified as serious as established in Annex I, numeral 2, subsection 2.1 of the Sanctions Regulations, approved by SMV Resolution No. 035-2018-SMV/01, since it failed to submit the account statements of CONTRACT 1 despite the fact that such information was requested by the SMV on more than one occasion.

Article 5º.- To sanction Autoplan Empresa Administradora de Fondos Colectivos S.A with a fine of 7 UIT in effect at the time of actual payment of the fine for the commission of the infractions referred to in articles 1°, 2°, 3° and 4° of this resolution.

Article 6º.- This resolution does not exhaust the administrative remedy, unless it is tacitly accepted, and may be challenged before the Deputy Superintendency of Prudential Supervision by filing a reconsideration or appeal remedy submitted before it, within the period of fifteen (15) business days counted from the day following its notification.

Article 7º.- In the event that this resolution is not challenged by means of a reconsideration or appeal remedy within the period of fifteen (15) business days from notification and becomes final, it must be published on the Institutional Website of the SMV on the Single Digital Platform of the Peruvian State, in observance of the provisions of item 1, Article 7º of the Policy on the dissemination of draft regulations, legal norms of a general nature, early agenda and other administrative acts of the SMV, approved by Resolution SMV Nº 014-2014-SMV/01 and its amendment, and by the provisions of Article 14° of the Regulations on Sanctions, approved by Resolution SMV N° 035-2018-SMV/01.

Article 8º.- Transcribe this resolution to Autoplan Empresa Administradora de Fondos Colectivos S.A.

Omar Gutiérrez Ochoa
Deputy Superintendent
Deputy Superintendency of Prudential Supervision

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

“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"

ANNEX – DESIGNATIONS

Person	Designation
Mr. Giancarlo Tárraga Romero	MR.1
Mrs. Patricia Yupanqui	MRS.1

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Resolution of the Deputy Superintendent of Prudential Supervision No. 044-2024-SMV/10

Resolution of the Deputy Superintendent SMV

No. 044-2024-SMV/10

SEEN:

CONSIDERING:

I. FACTS

II. ISSUES TO BE DETERMINED

III. ANALYSIS

3.1 On the applicable regulations

A. ON THE RETURN OF CONTRIBUTIONS

B. ON THE DOCUMENTATION AND/OR INFORMATION REQUESTED FROM AUTOPLAN EAFC IN RESPONSE TO THE COMPLAINT FILED

3.2. On the charges formulated

A. ON THE COMMUNICATION OF THE DATE OF RETURN OF CONTRIBUTIONS

B. ON THE PERIOD FOR RETURN OF CONTRIBUTIONS AFTER THE END OF THE GROUP

C. ON THE RETURN OF CONTRIBUTIONS THROUGH QUARTERLY DRAWS

D. ON THE DOCUMENTATION AND/OR INFORMATION REQUESTED FROM AUTOPLAN EAFC IN RESPONSE TO THE COMPLAINT FILED

3.3. Of the defenses

3.4. Evaluation of the charges

A. ON THE COMMUNICATION OF THE DATE OF RETURN OF CONTRIBUTIONS

B. ON THE TERM OF RETURN OF CONTRIBUTIONS AFTER THE END OF THE GROUP

C. ON THE RETURN OF CONTRIBUTIONS FOR QUARTERLY DRAWS

D. ON THE DOCUMENTATION AND/OR INFORMATION REQUESTED FROM AUTOPLAN EAFC IN RESPONSE TO THE COMPLAINT FILED

IV. EVALUATION OF THE SANCTION

RESOLVES:

ANNEX – DESIGNATIONS

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