Resolution SBS No. 2413-2020: Approval of the Regulation of Financial Leasing Companies; Modification of the SBS TUPA, the Regulation of Infractions and Sanctions, and the Regulation of Factoring, Discount, and Factoring Companies

Los Laureles Nº 214 - Lima 27 - Perú Telf. : (511) 6309000 Fax: (511) 6309239 Lima, October 05, 2020 Resolution S.B.S.
No. 2413-2020

The Superintendent of Banks, Insurance and Private Pension Fund Administrators

CONSIDERING:

That, Article 16 of the General Law of the Financial System and the Insurance System and Organic Law of the Superintendence of Banks and Insurance, Law No. 26702 and its modifying norms, hereinafter General Law, provides for the establishment of financial leasing companies, which are defined in numeral 7 of Article 282 of the General Law;

That, through the Second Complementary Modifying Provision of the Decree of Urgency No. 013-2020, which promotes, among other aspects, the entry of new competitors into the financial leasing market, numeral 7 of Article 282 of the General Law was modified, varying the definition of financial leasing companies included in the scope of the General Law;

That, through Article 14 of Title III of Decree of Urgency No. 013-2020, the Superintendence is required to establish the regulatory norms for the Registry of Financial Leasing Companies not included in the scope of the General Law, as well as to issue the minimum criteria for a financial leasing company to be within the scope of the General Law based on the volume of its operations and/or regarding the risk these companies may represent for the stability of the financial system;

That, in accordance with the aforementioned, it is also necessary to integrate into the scope of Decree of Urgency No. 013-2020 the registry of non-domiciled financial leasing companies;

That, consequently, it is necessary to issue a Regulation that incorporates the provisions established by Decree of Urgency No. 013-2020 and, likewise, establishes additional provisions that are necessary for the implementation of what is established in said Decree of Urgency;

That, for the purpose of collecting opinions from the general public regarding the present regulatory proposal, the prepublication of the draft resolution on the matter was ordered on the electronic portal of the Superintendence, under the provisions of Supreme Decree No. 001-2009-JUS;

Having the approval of the Adjunct Superintendencies of Banking and Microfinance, Risks, Economic Studies, Market Conduct and Financial Inclusion, Legal Advisory, and the General Secretariat; and,

In exercise of the powers conferred by numerals 7 and 9 of Article 349 of the General Law, as well as the powers granted by Decree of Urgency No. 013-2020;

RESOLVES:

Article First.- Approve the Regulation of Financial Leasing Companies, in the following terms:

“REGULATION OF FINANCIAL LEASING COMPANIES

CHAPTER I
GENERAL PROVISIONS

Article 1.- Definitions

For the purposes of the provisions of this Regulation, the following definitions must be considered:

1. Financial leasing: operation by which a company undertakes to acquire movable or immovable assets to lease them for use to a natural or legal person or legal entity, in exchange for the payment of periodic installments and with the option to purchase said assets for an agreed value.

2. Beneficial owner: according to the definition contemplated in the Regulation on Acquisition of Ownership in the Share Capital of Supervised Companies and Significant Owners approved by Resolution SBS No. 6420-2015.

3. Economic group: according to the definition contemplated in the Special Norms on Linkage and Economic Group approved by Resolution SBS No. 5780-2015.

4. General Law: General Law of the Financial System and the Insurance System and Organic Law of the Superintendence of Banks and Insurance, Law No. 26702 and its modifying norms.

5. Senior officials: in accordance with what is stated in the Norms for the Registration of Directors, Managers and Senior Officials - REDIR, Circular No. G-119-2004 and its modifying norms, in concordance with the Regulation on Corporate Governance and Integrated Risk Management, approved by Resolution SBS No. 272-2017 and its modifying norms.

6. Direct and indirect ownership: in accordance with what is stated in the Special Norms on Linkage and Economic Group approved by Resolution SBS No. 5780-2015.

7. Registry: Registry of financial leasing companies not included in the scope of the General Law.

8. Superintendence: Superintendence of Banks, Insurance and Private Pension Fund Administrators.

CHAPTER II
ON FINANCIAL LEASING COMPANIES INCLUDED IN THE SCOPE OF THE GENERAL LAW

Article 2.- Companies under the supervision of the Superintendence

2.1 Financial leasing companies included in the scope of the General Law are those companies whose specialty consists in developing financial leasing operations according to the definition contemplated in this Regulation and that meet any of the following conditions:
a) The accounting balance of financial leasing operations as an individual legal entity or in a consolidated manner as a group of legal entities or legal entities belonging to an economic group exceeds the amount of eight hundred million Soles (S/ 800,000,000) during two (2) consecutive quarters or its equivalent in foreign currency, for which the closing accounting exchange rate of each quarter must be used; or b) It belongs to a financial or mixed conglomerate that is formed by at least one company included in letters A or D of Article 16 of the General Law. It is understood that a financial leasing company belongs to a financial or mixed conglomerate in accordance with the definitions contemplated in the Special Norms on Linkage and Economic Group approved by Resolution SBS No. 5780-2015.

2.2 Financial leasing companies included in the scope of the General Law must be incorporated in the country and have the corporate form of a joint-stock company, in accordance with what is established in Article 12 of the General Law.

2.3 If a financial leasing company that met any of the conditions mentioned in paragraph 2.1 ceases to be in the situation provided for in this article, the Superintendence, ex officio or at the request of a party, determines and informs the period of time during which said company continues to be considered as a financial leasing company included in the scope of the General Law. Upon completion of said term, the Superintendence delivers to the company the certificate of inscription in the Registry, referred to in Article 13 of this Regulation.

Article 3.- Incorporation

3.1 The process for the incorporation of financial leasing companies included in the scope of the General Law is regulated by the pertinent provisions contained in the Regulation for the Incorporation, Reorganization and Establishment of Companies and Representatives of the Financial and Insurance Systems approved by Resolution SBS No. 10440-2008 and its modifying or substituting norms.

3.2 Financial leasing companies included in the scope of the General Law are incorporated observing the minimum capital established in Article 16 of the General Law, which must be kept updated in accordance with what is stated in Article 18 of the General Law.

3.3 Companies that from their incorporation meet what is established in paragraph 2.1 of Article 2 of this Regulation must wait to receive the authorizing resolution to carry out operations.

Article 4.- Adaptation

4.1 Financial leasing companies registered in the Registry that come to be included in the scope of the General Law must present the required information and follow the procedure indicated in Articles 5 to 7 of this Regulation within one hundred eighty (180) calendar days from when any of the situations indicated in paragraph 2.1 of Article 2 of this Regulation are met.

4.2 The verification that what is established in letter a) of paragraph 2.1 of Article 2 of this Regulation is met is carried out fifteen (15) calendar days after the close of the quarter in which the threshold was exceeded for two consecutive quarters.

4.3 The date from which what is established in letter b) of paragraph 2.1 of Article 2 of this Regulation is met is the day after the company's membership in the conglomerate has been configured.

Article 5.- Submission of documents for adaptation authorization

5.1 Financial leasing companies registered in the Registry that come to be included in the scope of the General Law, according to what is established in Article 2 of this Regulation, must present the following documentation to request adaptation authorization:
a) Proof of minimum capital in accordance with what is established in Articles 16 and 18 of the General Law. b) Audited annual financial statements of the last two (2) years and financial statements of the quarter prior to the date of the adaptation request. In the case of companies that have been incorporated for less than two (2) years, they must submit the audited annual financial statements they have on the date of submission of the documents. When, due to their date of incorporation, the aforementioned requirements are not available, the opening balance sheet may be presented instead. c) Report describing their business model and strategy, as well as their operational model. Projection of the statement of financial position and the statement of results for an economic year based on Superintendence accounting standards; as well as projections of financial indicators, including the capital ratio, effective equity requirements, portfolio quality, among others. d) Draft of the partial or total modification of the company's bylaws, as appropriate, which must be adapted to current regulations. e) Public deed of incorporation and all modifications to it, as well as the references in the registry sheet or entry of the corresponding registry inscriptions. f) Information on shareholders and their participation in the ownership of the company. In the case that the shareholder, with a participation greater than 10% of the company's share capital, is a legal person or legal entity, it must indicate who their beneficial owners are and present, in addition, the following:

• Number of Registry Sheet or Entry where the Validity of powers is recorded in the case of legal persons or legal entities incorporated in Peru. In the case of legal persons or legal entities incorporated abroad, the document that is equivalent in their country of incorporation;
• Annual financial statements of the last two (2) years and financial statements of the quarter prior to the date of the adaptation request. In the case of legal persons or legal entities that have been incorporated for less than two (2) years, they must submit the annual financial statements they have on the date of document submission.
  g) Sworn declaration by shareholders of not being subject to the impediments indicated in Articles 52 and 54 of the General Law. h) Sworn declaration of not having criminal or police records in the country for resident shareholders and beneficial owners, and in the country of domicile for non-resident shareholders and beneficial owners. i) Curriculum Vitae and Sworn Declaration of Directors, managers and senior officials of not being subject to the impediments indicated in Article 81 of the General Law. j) List of natural or legal persons or legal entities with which shareholders form an economic group in accordance with the Special Norms on Linkage and Economic Group approved by Resolution SBS No. 5780-2015. This list must include the ownership and management structure of the economic group. k) Sworn declaration of not having protests in the last five (5) years, both of shareholders and beneficial owners and of the adapting company, in any Chamber of Commerce in the country, or in the foreign entity that corresponds. l) Updated organizational structure of the company, with details of personnel and offices in operation at the time of the adaptation request. m) Organization and Functions Manuals and Procedures, which must be approved by the Board of Directors. n) Manuals of policies and procedures for the management of exposures subject to credit risk in accordance with what is established in the Credit Risk Management Regulation approved by Resolution SBS No. 3780-2011 and its modifications. o) Information demonstrating the existence of adequate infrastructure to carry out operations, such as manuals, procedures, formats, information on compliance with current regulation regarding the prevention of money laundering and financing of terrorism, among others. p) Report containing the plan and timeline for adaptation to current regulations issued by the Superintendence. q) Organizational structure and resources for market conduct management, as well as policies and procedures for such management. r) Channels for handling complaints and requests, the assigned resources, as well as procedures for their registration and handling, and reporting to the Superintendence. s) Information on the policies and procedures implemented for information security and business continuity for critical processes, products and services. t) Information on the physical and environmental security measures implemented in their main and alternative data processing centers. u) Information on the main characteristics of their technology platform and the architecture of the computer systems used.

5.2 The incorporation of the company in the country or its conversion to a joint-stock company to comply with what is established in Article 2 of this Regulation must be carried out prior to the submission of the aforementioned documents.

Article 6.- Publication

6.1. The Superintendence, after verifying the presentation of the information required in the previous article, in a complete and satisfactory manner, orders the adapting company to publish twice, alternately, within a maximum period of sixty (60) calendar days, the first in the Official Journal El Peruano and the second in a newspaper or publication medium of extensive national circulation, a notice informing the public about the adaptation process to a financial leasing company included in the scope of the General Law, as well as the names of the shareholders, calling any interested person to, within a term of fifteen (15) calendar days, counted from the date of the last notice, formulate any well-founded objection to the adaptation of the company or to the shareholders that constitute it.

6.2. The adapting company must send to the Superintendence via electronic means a copy of the published notice, on the same day of its publication, in accordance with the mechanisms established by the Superintendence, for dissemination on the Institutional Web Portal.

Article 7.- Adaptation Authorization

7.1 After the deadlines for the publications referred to in the previous article have expired, without well-founded and valid observations being produced, the Superintendence, with the opinion of the Central Reserve Bank, issues the corresponding authorizing resolution of adaptation, which must be permanently displayed in a visible place to the public, in the different offices of the financial leasing company included in the scope of the General Law.

7.2 The aforementioned authorizing resolution of adaptation is of indefinite validity and may be cancelled by the Superintendence as a sanction for a serious offense committed by the aforementioned company, in accordance with what is provided in Article 28 of the General Law.

7.3 Companies that do not request or do not successfully complete the adaptation process indicated above, in the terms, conditions and deadlines established by the Superintendence, must carry out the necessary acts to not be in the situations of Article 2 of this Regulation or cease to carry out financial leasing operations, within the deadline established by the Superintendence.

7.4 Failure to comply with the above results in the Superintendence imposing the corresponding sanctions and/or applying the measures. Likewise, it may disseminate to the public through a statement that the company is not authorized to carry out financial leasing operations for not presenting or successfully completing its adaptation request.

Article 8.- Permitted Operations

8.1 Financial leasing companies included in the scope of the General Law may carry out financial leasing operations and act as settlors in trusts, as well as carry out the operations established in numerals 11, 12, 14, 15, 17, 18, 19, 20, 21, 22, 23, 26, 28, 29 of Article 221 of the General Law, that are necessary and compatible with their corporate purpose.

8.2 Financial leasing companies may carry out other operations indicated in Article 221 of the General Law, that are necessary and compatible with their corporate purpose, for which they must have prior authorization from the Superintendence. For this purpose, what is established in the Regulation on Expansion of Operations approved by Resolution SBS No. 4465-2016 applies.

Article 9.- Risk Classification

Financial leasing companies are not obliged to have a risk classification; without prejudice to this, they may submit to the classification of a risk rating company, if they consider it convenient. When this occurs, they must comply with what is provided in the norms issued by the Superintendence on risk classification.

Article 10.- Applicable Regulation

10.1 The provisions contained in the General Law referring to companies of the financial system are applicable to financial leasing companies included in the scope of the General Law, insofar as they are pertinent.

10.2 Financial leasing companies included in the scope of the General Law are subject to any norm or provision issued by the Superintendence that contemplates in its scope financial leasing companies; or that refers in its scope or is applicable to companies of the financial system, to the companies included in Article 16 of the General Law or the specialized companies included in letter B of Article 16 of the same Law. In matters of market conduct, financial leasing companies included in the scope of the General Law are subject to the Simplified Regime for the Management of Market Conduct of the Financial System, as stated in Resolution SBS 3274-2017 or substituting norms.

10.3 The Superintendence may determine the application to financial leasing companies of other norms and provisions issued by it.

CHAPTER III
REGISTRY OF FINANCIAL LEASING COMPANIES NOT INCLUDED IN THE SCOPE OF THE GENERAL LAW

Article 11.- Obligation of inscription in the Registry

Financial leasing companies not included in the scope of the General Law have the obligation to register in the “Registry of financial leasing companies not included in the scope of the General Law”, hereinafter the Registry, enabled by the Superintendence.

Article 12.- Communication and registration

12.1 Financial leasing companies not included in the scope of the General Law must register with the Superintendence, for which they must present the following information:
a. Registration request signed by the legal representative, specifying: company name, registered address, telephone and email. b. Document supporting the validity of the company's legal personality or equivalent document in the case of companies incorporated outside the country or not domiciled in the country.
c. Number of Registry Sheet or Entry of the power of attorney of the legal representative of the company. In the case of companies incorporated outside the country or not domiciled in the country, they must also register the powers of their legal representatives in the Public Registries of Peru. In case of modification in the designation of the legal representative of the company, it must inform the Superintendence of this fact for Registry purposes within a maximum period of five (5) business days from the occurrence of the designation of the new legal representative. Likewise, the company must inform the Superintendence of the registry sheet or entry number where the designation of the legal representative is recorded within a maximum period of five (5) business days of its inscription in the Public Registries of Peru.
d. Information on the formation of direct and indirect ownership of the company for an amount greater than 3% of the share capital. e. Information corresponding to the economic group to which it belongs, indicating the companies and/or legal entities that integrate it and the activities developed by said companies and/or legal entities. f. Declaration signed by the legal representative, stating that the company is subject to the provisions issued by the Superintendence applicable to said companies and that, in this sense, they may be subject to the imposition of sanctions by said body.

12.2 From the entry into force of this Regulation, financial leasing companies not included in the scope of the General Law must present the aforementioned information, prior to carrying out financial leasing operations in the country.

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Article 13.- Certificate of Registration
The certificate of registration in the corresponding Registry for financial leasing companies not covered by the General Law is issued within a maximum period of thirty (30) business days counted from the submission of the documentation referred to in Article 12 of this Regulation, provided it is complete and satisfactory to the Superintendency. Once the certificate of registration is issued, the companies may carry out operations.

Article 14.- Obligations of Registered Companies
14.1. Financial leasing companies registered in the Registry must comply with the submission of the following information within the indicated deadlines:
1 a. Quarterly submission, in March, June, September, and December, of the format referring to the accounting balance of financial leasing operations indicated in Annex A of this Regulation. The submission may be made physically or through the virtual counter. In the case of physical submission, Annex A must also be sent electronically in a spreadsheet file to the address established for such effect. If such submission is made through the virtual counter, Annex A must be attached in pdf format and in a spreadsheet file, within fifteen (15) calendar days following the end of the quarter, signed by the legal representative of the company. b. Semi-annual submission, in June and December, of the financial statements according to the formats indicated in Annex B of this Regulation. The submission may be made physically or through the virtual counter. In the case of physical submission, Annex B must also be sent electronically in a spreadsheet file to the address established for such effect; if such submission is made through the virtual counter, Annex A must be attached in pdf format and in a spreadsheet file, within thirty (30) calendar days following the end of the semester.
c. Submission, together with the documentation indicated in letter a., of the letter informing about changes produced in that period in the direct and indirect ownership of the company for an amount greater than 3%.
d. Submission, together with the documentation indicated in letter b, of the information corresponding to the economic group to which it belongs, indicating the companies and/or legal entities that integrate it and the activities developed by said companies and/or legal entities.
14.2. For the purposes of sending the aforementioned information, these companies must use the definition of financial leasing of this Regulation.
14.3. Registered financial leasing companies that do not present the information indicated in letters a, b, c, and d of paragraph 14.1 during three (03) consecutive periods or four (04) alternating periods, will be suspended from the Registry, and therefore, cannot carry out operations during the period of suspension. In the cases of letters a and b of paragraph 14.1, companies must present the information from the Annexes in both required files as applicable whether submitted physically or via the virtual counter; that is, failure to send one of the two required files in each case constitutes the cause for suspension, as indicated in this paragraph.
2
1 Paragraph modified by Resolution SBS No. 00650-2024 of February 22, 2024, effective from February 27, 2024.
2 Paragraph modified by Resolution SBS No. 00650-2024 of February 22, 2024, effective from February 27, 2024.

14.4. Financial leasing companies whose registration has been suspended, in accordance with paragraph 14.3 of this article, may request to be rehabilitated in their registration, prior to regularizing the situation that caused said suspension.

Article 15.- Registered Financial Leasing Companies Obligated to Initiate Their Adaptation
In the event that financial leasing companies that have been registered in the Registry meet the conditions to be covered by the General Law, as indicated in Article 2 of this Regulation, they must follow the procedure indicated in Articles 5 to 7, in accordance with what is established in Article 4 of this Regulation. While said adaptation is completed, they may continue carrying out operations, for which they must continue complying with the obligations established in Article 14 of this Regulation, unless the Superintendency orders otherwise.

Article 16.- Publication of the List of Registered Entities
The Superintendency publishes on its website the list of financial leasing companies not covered by the General Law that are registered under this norm.

Article 17.- Cancellation of Registration in the Registry 3
The cancellation of registration in the Registry proceeds when the SBS determines that financial leasing companies not covered by the General Law incur in one or more of the following causes:

1. When financial leasing companies not covered by the General Law have the status of definitive deregistration or official definitive deregistration in the National Superintendence of Customs and Tax Administration – SUNAT.
2. Present false information in the application for registration in the Registry or in any other document presented to the SBS.
3. Use a name, corporate name, or technological platform different from the one registered in the Registry.
4. Advertise their activities using the SBS logo or stating that they have the authorization, license, backing, guarantee, or similar from the SBS.
5. Carry out activities that require authorization or registration from the SBS and this has not been granted.
   In the event that the registration has been cancelled in application of numeral 1 of this article, they may request a new registration in the Registry, in accordance with what is established in this Regulation.

FINAL COMPLEMENTARY PROVISIONS
First.- Registration or conversion of financial leasing companies that at the entry into force of this norm were under the supervision of the Superintendency From the entry into force of this Regulation, financial leasing companies supervised by the Superintendency that do not meet the criteria indicated in Article 2 of this Regulation, continue under its regulation and supervision until June 30, 2021. These companies have until that date to present their application for conversion to another type of company supervised by the Superintendency, in accordance with what is provided in the 3 Article incorporated by Resolution SBS No. 00650-2024 of February 22, 2024, effective from February 27, 2024.

Regulation for the Constitution, Reorganization and Establishment of Companies and Representatives of the Financial and Insurance Systems, approved by Resolution SBS No. 10440-2008. While the evaluation of the conversion request lasts, they remain under the supervision of the Superintendency.
Notwithstanding the foregoing, in the event that the companies referred to in the previous paragraph decide not to convert to another type of supervised company before June 30, 2021, they must communicate this to the Superintendency. This, ex officio, processes the registration of said financial leasing companies in the Registry under its charge. While the registration is formalized, the mentioned companies may continue carrying out operations. If they do not present the conversion request by June 30, 2021, or, if having presented it, the procedure is terminated without obtaining the respective authorization, the Superintendency, ex officio, will proceed according to what is indicated in the previous paragraph.

Second.- Registration of non-domiciled financial leasing companies Non-domiciled financial leasing companies referred to in Article 15 of Supreme Decree No. 559-84-EFC are required to incorporate into the Registry of Financial Leasing Companies not covered by the General Law, in accordance with the requirements indicated in this Regulation. To be considered as financial leasing companies covered by the General Law, in addition to meeting the requirements indicated in Article 2 of this Regulation, they must prove their constitution and domicile in Peruvian territory. Non-domiciled financial leasing companies that currently operate and do not meet the conditions indicated in Article 2 of this Regulation must request their registration in the Registry of financial leasing companies not covered by the General Law, in accordance with the requirements indicated in this Regulation until June 30, 2021. If they do not present the application for registration in the Registry by this date, or, if having presented it, the procedure is terminated without obtaining the respective registration, said companies will not be able to continue operating. While the registration is formalized, the mentioned companies may continue carrying out operations. Non-domiciled financial leasing companies that meet the conditions indicated in Article 2 of this Regulation must request their authorization as financial leasing companies covered by the General Law in accordance with the requirements indicated in this Regulation until June 30, 2021. If they do not present the application for authorization by this date, or, if having presented it, the procedure is terminated without obtaining the respective authorization, said companies will not be able to continue operating. While the authorization is formalized, the mentioned companies may continue carrying out operations. Non-domiciled financial leasing companies registered in the Superintendency will only report financial leasing operations carried out in Peru, and based on this information is what is established in letter a) of paragraph 2.1 of Article 2 of this Regulation.

Second Article.- Incorporate Procedures No. 194 "Authorization of registration in the Registry of financial leasing companies not covered by the General Law" and No. 195 "Authorization of adaptation to financial leasing companies covered by the General Law" into the Single Text of Administrative Procedures – TUPA of the Superintendency of Banks, Insurance and Private Pension Fund Administrators, approved by Resolution SBS No. 1678-2018 and its modifying norms, whose text is attached to this Resolution and published on the institutional portal (www.sbs.gob.pe), in accordance with what is provided in the Regulation of Law No. 29091, approved by Supreme Decree No. 004-2008-PCM.

Third Article.- Modify the Regulation of Infractions and Sanctions approved by Resolution SBS No. 2755-2018 and its modifying norms, in the following terms:

1. Replace the denomination of Annex 5 with Infractions applicable to Distributions, Benefit Funds, other funds that receive resources from their affiliates and grant pensions for redundancy, retirement, and similar, factoring companies not covered by the General Law, financial leasing companies not covered by the General Law, and other supervised entities not considered in the other annexes.
2. Incorporate in Section I "Serious Infractions" of Annex 5, the following infraction:

3. Failure to timely present the information to adapt as a financial leasing company covered by the General Law when under the assumption indicated in Article 15 of the Regulation for Financial Leasing Companies.

Fourth Article.- Incorporate into Article 28 of the Regulation of Factoring, Discount and Factoring Companies, approved by Resolution SBS No. 4358-2015 and its modifier, the following two final paragraphs:
"Article 28.- Obligations of the Registered
(...)
Registered factoring companies that do not present the information indicated in letters a, b, and c during three (03) consecutive periods or four (04) alternating periods, will be suspended from the Registry, and therefore, cannot carry out operations during the period of suspension.
Factoring companies whose registration has been suspended, in accordance with the previous paragraph of this article, may request to be rehabilitated in their registration, prior to regularizing the situation that caused said suspension."

Fifth Article.- This Resolution enters into force the day following its publication in the Official Newspaper El Peruano.
Register, communicate and publish
SOCORRO HEYSEN ZEGARRA
Superintendant of Banks, Insurance and Private Pension Fund Administrators