Resolution SBS No. 751-2001: Replaces Various Articles of Title V of the Compendium of Supervisory Norms of the Private System for the Administration of Pension Funds, Regarding Nullities

Lima, October 10, 2001
S.B.S. Resolution
No. 751 –2001
The Superintendent of Banking and Insurance

CONSIDERING:

That, Title V of the Compendium of Supervisory Norms of the Private System for the Administration of Pension Funds (SPP), approved by Resolution No. 080-98-EF/SAFP, contemplates in its Subchapter VII of Chapter I the grounds and procedures regarding the nullity of affiliation for those workers who had incorporated into the SPP;

That, by SBS Resolution No. 749-2000, it was ordered to suspend the declaration of affiliation nullity for workers included within the scope of Article 51 of the aforementioned Title V, while a procedure for recognition and accreditation of the right to obtain some retirement benefit under the Regime of Decree Law No. 19990 was established, and the procedure for the return of mandatory contributions directly by the AFP to the ONP was approved, in accordance with what is established in Article Two of the aforementioned resolution;

That, to this end, by Resolution No. 105-2001/SUNAT, the National Superintendence of Tax Administration has established the forms and procedures for the declaration and payment of contributions, corresponding to the return of mandatory contributions to the Regime of Decree Law No. 19990 administered by the ONP, as a result of nullities of affiliation to the SPP;

That, in that sense and in order to achieve a better functioning of the SPP, it is necessary to lift the aforementioned suspension of the declaration of nullities of affiliation, with the exception of those included within the ground by which nullity is granted if it is proven that the affiliate, at the date of their incorporation into the SPP, met the requirements to obtain a retirement benefit under the Regime of Decree Law No. 19990;

That, additionally, as a result of what is established in the aforementioned resolutions, it is necessary to adapt the corresponding regulations to Subchapter VII of Chapter I of Title V of the Compendium, in order to consider in its text the modifications introduced in the matter, as well as in the procedures for the return of mandatory contributions made in the SPP to the ONP;

Being in accordance with the opinion of the Adjunct Superintendencies of Private Administrators of Pension Funds and of Legal Advice; and,

In exercise of the powers conferred by numeral 9 of article 349 of the General Law of the Financial System and of the Insurance System and Organic Law of the Superintendence of Banking and Insurance, Law No. 26702 and its amendments, and clause d) of article 57 of the Single Text of the Ordered Law of the Private System for the Administration of Pension Funds, approved by Supreme Decree No. 054-97-EF;

RESOLVES:

Article 1°.- To lift, from the date of entry into force of this resolution, the suspension of the declaration of nullities of affiliation for the case of workers included within the scope of Article 51 of Title V of the Compendium of Supervisory Norms of the SPP, with the sole exception of cases that have been presented because they met the requirements to obtain a retirement pension under the Regime of Decree Law No. 19990 at the moment of their incorporation into the SPP.

To this end, the AFPs will continue to admit and evaluate requests for nullity of affiliation, in accordance with the norms of Title V of the Compendium of Supervisory Norms of the SPP, SBS Resolution No. 749-2000 and what is established in this resolution.

Article 2°.- The procedure for nullity of affiliation in the SPP for those affiliates who have requested their nullity of affiliation because they met the requirements to obtain a retirement pension under the Regime of Decree Law No. 19990 at the moment of their incorporation into the SPP, will be established by an Operational Regulation to be issued by resolution of the Superintendence, in coordination with the ONP.

Article 3°.- To replace what is established in Articles 52, 52A, 53, 54 and 55 of Title V of the Compendium of Supervisory Norms of the SPP, approved by Resolution No. 080-EF/SAFP and its amendments, with the following text:

“Procedure

Article 52°.-

With the object of requesting and declaring the nullity of an affiliation, the following procedure must be observed:

a) Presentation.- According to the ground, the request will be presented before the AFP by:

i. Grounds a) and b) of Article 51: the worker, heir, AFP or employer, as the case may be.

ii. Ground c) of Article 51: the AFP is responsible for initiating the procedure ex officio.

iii. Ground f) of Article 51: the worker or their heirs, as the case may be.

In the cases referred to in clause f) of Article 51, the request for nullity will be admitted for processing provided that it is not under any of the following situations:

iv. The affiliate or their beneficiaries were receiving or had not received any pension from their Individual Affiliate File (CIC);

v. They had presented a request for retirement pension due to legal age before the AFP, in accordance with what is established by Title VII of this Compendium;

vi. They had presented a request for early retirement pension before the AFP and had met the requirements to access a pension, in accordance with what is established by Title VII of this Compendium;

vii. They had presented a request for disability pension before the AFP and had been qualified as disabled by the Medical Committees, in accordance with what is established in Title VII of this Compendium.

b) Evaluation Period.- The AFP will evaluate the nullity request within a period of five (5) days of receiving the supporting documentation and will opine on the appropriateness or inappropriateness of the request, using for this purpose the format described in Annex No. VII. For this effect, the corresponding supporting documentation will be attached to the file.

c) Supporting Documentation.- Without prejudice to the corresponding evaluation, the following is considered as supporting documentation, according to each case contemplated in Article 51:

i) Clause a): Corresponding graphotechnical expertise;

ii) Clause b): Copy of the affiliation contract and copies of the pay slips that prove that the employer knew the social security background of the worker;

iii) Clause c): Certification issued by the National Registry of Identification and Civil Status - RENIEC, indicating the non-existence of the name in the registry and consigning the name of the person to whom the identity document number subject to verification corresponds;

iv) Clause f): Evaluation and disability qualification report issued by the COMAFP or COMEC.

d) Incomplete Information.- In case the supporting documentation had been reached to the AFP in an incomplete form, the AFP must communicate in writing with explicit indication of the missing documents to the requester of the nullity within the following ten (10) days, for the purpose of proceeding to correct the communicated formal observations.

e) Qualification of Inappropriateness.- If after the evaluation, the AFP considers the presented request inappropriate, it will record this in Annex No. VII, archive the file referred to in the previous clause b) in the Individual Affiliate File (CIC) and send notification to the requester of the nullity communicating the result of the verification, detailing the reasons for the inappropriateness within the ten (10) following days.

f) Qualification of Appropriateness.- If after the evaluation, the AFP considers the request appropriate, it will send this information to the Superintendence, on the last business day of each week, in the form of a sworn declaration through Annex No. XXXIII. The aforementioned declaration must be signed by the general manager or representative of the AFP duly authorized for this effect. Without prejudice to this, the AFP will archive the aforementioned Annex No. VII in the Individual Affiliate File (CIC).

g) Information.- The AFP will inform via network to the Superintendence the status of all evaluated requests. The AFP must verify that all files meet the support, requirements and corresponding conditions. In any case, the AFPs will conserve the nullity of affiliation files.

h) Resolution of Superintendence.- The Superintendence will resolve based on the content of the aforementioned sworn declaration, without prejudice to requesting from the AFP additional information that it considers pertinent.

When the ground of nullity is any of those provided in clauses a) or c) of Article 51 of this Title, the Superintendence will previously issue a sanction resolution to the sales promoter, in accordance with the procedure and deadlines established in Title III of the Compendium. Within five (5) days following that the sanction imposed on the sales promoter has become final or enforceable, the AFP will request from the Superintendence the declaration of nullity of the affiliation.

i) Cancellation.- By virtue of the resolution in which the nullity of the affiliation is declared, the affiliated worker will be cancelled, both from the files of the Superintendence and from the respective AFP, and the AFP will proceed to the return of contributions in accordance with Article 53 of this Title.

Procedure by the AFP

Article 52A°.-

Within five (5) days following the date of entry into force of the resolution that declares the nullity of the affiliation by the Superintendence, for any of the grounds indicated in clauses a) or b) of Article 51 of this Title, the AFP must follow the following procedure:

a) Communicate in writing to the employer that maintains a current labor link with the worker, when applicable, the declaration of nullity of affiliation by the Superintendence;

b) Communicate in writing to the affiliate the declaration of nullity of the affiliation including in this notification, the information of the transfers of contributions referred to in Article 53 of this Title;

c) Return to the ONP the Title or Certificate of Recognition Bonus issued, if applicable;

d) Request from the insurance company that maintains a risk administration contract for disability and survival, the return of the premiums paid by the worker whose affiliation has been declared null, for which the AFP must send a detailed report of the months of accrual for which the payments were made. The aforementioned insurance company will have a period of ten (10) days counted from the date of receipt of the request to make the corresponding transfer to the AFP; and,

e) Request from all AFPs that had maintained the referred worker as an affiliate, the transfer of the commissions and insurance premiums charged at their time. Likewise, these must request from the insurance company with a current administration contract during the contribution period of the affiliate, the transfer of the corresponding premiums. The aforementioned AFPs and insurance companies will have a period of ten (10) days counted from the date of receipt of the request to make the corresponding transfer to the requesting AFP.

In the cases where the nullity resolution issued corresponds to the ground of voidability indicated in clause f) of Article 51 of this Title, the AFP must comply only with what is established in clauses a), b) and c) above.

Return of Contributions

Article 53°.-

In the cases of the grounds indicated in clauses a) or b) of Article 51 of this Title, the AFP within five (5) days following the completion of the period for the transfer of commissions and premiums referred to in Article 52A, must proceed to return the contributions according to the following procedure:

a) For the mandatory contributions made in the capacity of dependent worker, the AFP must transfer to the ONP:

i) The mandatory contributions to the pension fund made by the worker;

ii) The contributions for commissions that corresponded to the AFPs;

iii) The contributions for the concept of insurance premiums that corresponded to the insurance companies; and,

iv) The balance corresponding to the redeemed Recognition Bonus, in which case, the return will be subject to what is established in SBS Circular No. AFP-003-2001.

The detail of the transfer of the contributions will be subject to the procedure that regulates the Declaration and Payment of contributions to the ONP, in accordance with Resolution No. 105 -2001/SUNAT.

b) In the case of voluntary contributions with and without pension purpose referred to in Article 88 of this Title, made in the capacity of dependent worker, the AFP must return to the affiliate the aforementioned contributions, registering the detail of the transfer in the format referred to in Annex No. IX of this Title.

c) In the case of voluntary contributions referred to in Article 122 of this Title, the AFP will apply said contributions to the balance of mandatory contributions subject to return to the ONP, according to the scope of Resolution No. 105 -2001/SUNAT.

d) In the case of mandatory and voluntary contributions made in the capacity of independent worker, the AFP must observe the procedure detailed in the preceding clause b).

For the cases where the affiliation has been declared null as a consequence of the ground referred to in clause f) of Article 51 of this Title, the AFP within five (5) days following the date of entry into force of the nullity resolution must comply with the procedure established in the preceding clauses, with the exception of what is indicated in letters ii) and iii) of clause a).

In the case that the worker had had the condition of dependent and independent worker throughout their work trajectory, the AFP, in the first case, will be subject to the procedure of direct return of contributions to the ONP, in accordance with Resolution No. 105-2001/SUNAT and, in the second, will proceed to its return to the independent worker.

Regularization of Contributions to the National Pension System

Article 54°.-

In the case of requests for nullity of affiliation presented under clause a) of Article 51, the AFP must effect the regularization of the contributions before the ONP based on what is established in numeral 2.1 of Article 2 of Resolution No. 105 -2001/SUNAT.

In the case of requests for nullity of affiliation presented under clause b) of Article 51, the employer, prior to communication of the amounts and concepts subject to return by the AFP, must effect the regularization of the contributions before the ONP, based on what is established in numeral 2.2 of Article 2 of Resolution No. 105- 2001/SUNAT.

In the case of requests for nullity of affiliation presented under clause f) of Article 51, the affiliate, prior to communication of the amounts and concepts subject to return by the AFP, must effect the regularization of the contributions before the ONP, based on what is established in numeral 2.2 of Article 2 of Resolution No. 105- 2001/SUNAT.

The AFP from its own resources will cover the missing contributions for difference of contribution rates and late interest that correspond before the ONP, for those workers whose affiliations have been declared null by the ground indicated in clause a) of Article 51 of this Title. In the case of clause b), the missing contributions will be covered by the employer.

In the case of the ground indicated in clause f) of the cited article, the affiliate, from their own resources, will cover the missing contributions for difference of contribution rates and late interest that correspond before the ONP.

What is established in this article does not constitute a modification of the norms on determination of the taxpayer provided in the tax legislation.”

Contributions Received After the Declaration of Nullity

Article 55°.-

If declared the nullity of affiliation and effected the respective transfer, the AFP continued receiving pension contributions withheld by the employer regarding workers whose affiliation has been declared null in the SPP, the AFP will proceed to the return of these amounts to the ONP, in accordance with Resolution No. 105 -2001/SUNAT.”

Article 4°.- To replace Annex IX of Title V of the Compendium of Supervisory Norms of the SPP, with the one attached in this Resolution.

Article 5°.- To lift Annex VIII of Title V of the Compendium of Supervisory Norms of the SPP, approved by Resolution No. 080-98-EF/SAFP and its amendments.

FINAL AND TRANSITORY PROVISIONS

First.-

This resolution will also be applicable to those affiliates who present their request for nullity of affiliation because it has been proven that they were receiving a lifelong pension under the Regime of Decree Law No. 19990 and are under the scope of the Third Final and Transitory Provision of SBS Resolution No. 749-2000.

Second.-

The affiliates included within the scope of the first paragraph of the Third Final and Transitory Provision of SBS Resolution No. 749-2000, will be subject to the following procedures for the purpose of invoking the ground of voidability of affiliation in the SPP:

i. Presentation of the request: that referred to in letter iii. of clause a) of Article 52 of Title V of the Compendium, being applicable to them letters iv., v., vi., and vii. of the mentioned clause.

ii. Supporting Documentation:

Clause d): Copy of the pay slip that proves the condition of pensioner of the affiliate;

Clause e): Supporting documentation that proves the right, at the moment of their incorporation into the SPP, to obtain some retirement benefit by the ONP under the Regime of Decree Law No. 19990, in accordance with what the Operational Regulation of Nullity of Affiliation to the SPP for having the right to a retirement pension in the Regime of D.L. 19990 establishes.

iii. Procedure by the AFP: that referred to in the last paragraph of Article 52A of Title V of the Compendium.

iv. Return of Contributions: that referred to in the last two paragraphs of Article 53 of Title V of the Compendium.

v. Regularization of contributions to the National Pension System: that referred to in the third and fifth paragraphs of Article 54 of Title V of the Compendium.

Third.-

This resolution will enter into force from the day following its publication in the Official Journal “El Peruano”.

Register, communicate and publish

LUIS CORTAVARRIA CHECKLEY
Superintendent of Banking and Insurance