Resolution SBS No. 795-2002: Operating Regulation for the Nullity of Affiliation to the Private Pension System for Having Right to a Retirement Pension under Decree Law No. 19990

Lima, August 22, 2002
Resolution S.B.S.
No. 795-2002
The Superintendent of Banking and Insurance

CONSIDERING:

That, Resolution SBS No. 749-2000 established in its First Final and Transitional Provision to suspend the declaration of nullity of affiliation for cases of workers covered by the scope of Article 51 of Title V of the Compilation of Regulatory Supervisory Norms of the SPP, while the Superintendence and the National Pension Office (ONP) agreed on a procedure for accrediting the right to obtain any retirement benefit under the regime of Decree Law No. 19990;

That, likewise, Article Two of Resolution SBS No. 751-2001 reiterated that the nullity of affiliation procedure in the SPP for those affiliates who requested it having met the requirements to obtain a retirement pension under the regime of Decree Law No. 19990 at the time of their incorporation into the SPP, shall be established through an Operating Regulation to be issued by Superintendent Resolution, in coordination with the ONP;

That, since Law No. 27617 was enacted, which introduces various modifications to the Law of the Private System of Administration of Pension Funds (SPP), as well as its respective regulations, it is necessary to have a comprehensive regulatory framework on the matter, for which purpose it is necessary to approve the corresponding Operating Regulation, for the definition of which coordination has been held with the ONP;

That, on the other hand, it is necessary to evaluate the application of the cause of nullity of affiliation in cases where a worker had been affiliated to the SPP under the responsibility of the employer, without having complied with the norms that, at the time, regulated such form of affiliation, as well as to establish clarifications regarding the accounting of the period for the presentation of the nullity of affiliation request in those cases where the date of occurrence of the invalidity, determined by the medical committees, had been prior to the affiliate's incorporation into the SPP;

Being in accordance with the opinion of the Adjunct Superintendencies of Private Pension Fund Administrators 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 subsection d) of Article 57 of the Single Consolidated Text of the Law of the Private System of Administration of Pension Funds, approved by Supreme Decree No. 054-97-EF;

RESOLVES:

Article 1.- Approve the Operating Regulation for the Nullity of Affiliation to the Private System of Administration of Pension Funds (SPP) for having the right, at the time of their incorporation into the SPP, to a retirement pension in the Regime of Decree Law No. 19990, referred to in the Third Final and Transitional Provision of Resolution SBS No. 749-2000, and whose attached text forms part of this resolution.

Article 2.- The Private Pension Fund Administrators (AFP), in order to provide their affiliates with adequate information on the matter, must have orientation brochures in their public service agencies regarding the conditions, requirements, and procedures to be followed by an affiliate, within the scope of what is established in this resolution and Law No. 27617 regarding the benefit of early retirement under Decree Law No. 19990 for affiliates to the SPP.

Article 3.- The period to request the nullity of affiliation due to employer responsibility, as provided in subsection b) of Article 51 of Title V of the Compilation of Regulatory Supervisory Norms of the SPP, approved by Resolution No. 080-98-EF/SAFP and its amendments, shall be ten (10) years, such period being computed in the manner provided in the last paragraph of the aforementioned Article 51.

Article 4.- To clarify that in those cases where the affiliate had presented a request for evaluation and qualification of invalidity to the AFP, the period referred to in subsection f) of Article 51 of Title V for the presentation of the nullity of affiliation request to the AFP, shall be computed from the date of presentation of said request.

Article 5.- This resolution shall apply to those nullity of affiliation requests to the SPP covered by the cause of having the right, at the time of incorporation into the SPP, to a retirement pension in the Regime of Decree Law No. 19990, that are pending or awaiting execution. Likewise, it shall be extended to those requests that having been processed under another cause of nullity of affiliation, are covered by the condition of having the right, at the time of the worker's incorporation into the SPP, to a retirement pension in the Regime of Decree Law No. 19990.

Article 6.- This resolution shall enter into force on the fifteenth calendar day following its publication in the Official Newspaper "El Peruano".

Article 7.- Repeal the norms that oppose what is provided in this resolution.

Register, communicate, and publish.

JUAN JOSÉ MARTHANS LEÓN
Superintendent of Banking and Insurance

OPERATING REGULATION FOR THE NULLITY OF AFFILIATION TO THE PRIVATE SYSTEM OF ADMINISTRATION OF PENSION FUNDS (SPP) FOR THE CAUSE OF HAVING THE RIGHT TO A RETIREMENT PENSION IN THE REGIME OF DECREE LAW NO. 19990

Scope

Article 1st.-
This Operating Regulation establishes the procedure applicable to the nullity of affiliation to the Private System of Administration of Pension Funds (SPP) for the cause of having the right, at the time of their incorporation into the SPP, to a retirement pension in the Regime of Decree Law No. 19990.

Definitions

Article 2nd.-
For the purposes of the procedure carried out under the scope of this Operating Regulation, the following definitions will be used:

• AFP: Private Pension Fund Administrators;
• Affiliates: those affiliates to the SPP who present nullity of affiliation requests to the SPP under the cause contemplated in Article 1 of this Operating Regulation.
• Days: business days, unless expressly indicated otherwise.
• ONP: National Pension Office, entity that administers the National Pension System (SNP);
• SBS: Superintendence of Banking and Insurance;
• SUNAT: National Superintendence of Tax Administration, entity that, for purposes of the SNP, collects contributions destined to the ONP;

Procedure

Article 3rd.-
The nullity of affiliation procedure to the SPP, for having the right to a retirement pension in the Regime of Decree Law No. 19990, shall be subject to the following scheme:

I. On the presentation and processing of Nullity of Affiliation Requests

1. The affiliate presents a Nullity of Affiliation Request to the AFP, invoking that, at the time of their incorporation into the SPP, they had the right to have a retirement pension under the Regime of D.L. 19990, for which purpose they will attach a simple copy of the corresponding documents that support the age and years of contribution to the SNP requirements referred to in Article 54 of the Regulation of Decree Law No. 19990, approved by Supreme Decree No. 011-74-TR and its complementary norms, as well as what is provided by Supreme Decree No. 082-2001-EF.

2. The AFP, within a period not exceeding thirty (30) calendar days from receipt of the request, must carry out the following activities:

a) Verify that the affiliate meets, on the date of presentation of their request, the requirement of having been incorporated into the SPP for less than two (2) years, and at the same time, that the affiliate or their beneficiaries were not receiving or had not received any pension from their Individual Capitalization Account (CIC), or had not presented a request for retirement or invalidity pension to the AFP, taking into consideration what is contemplated in subsection a) of Article 52 of Title V of the Compilation;

b) Verify that the affiliate has the adequate documentation to support that, at the date of their incorporation into the SPP, they met the age and years of contribution requirements to access a retirement benefit under the Regime of D.L. 19990;

c) Calculate, based on the surcharges and interests corresponding, the differential of contributions to be paid to the ONP, as a result of the payment of pension contributions between the SPP and the SNP. This calculation has a provisional nature, corresponding to the ONP the determination of the definitive value of the differential of contributions to be paid by the affiliate;

d) Issue and deliver to the affiliate a monthly report of remunerations and contributions made to the SPP, for the purpose of supporting the approximate calculation of the differential of contributions to be paid to the ONP.

3. The affiliate, once received the documents referred to in subsections c) and d) of numeral 2 by the AFP, must sign and deliver to the AFP a sworn statement in which they manifest their willingness to continue with the nullity of affiliation procedure in the SPP and, if applicable, their knowledge of the estimated differential of contributions to be paid to the ONP as a result of the payment of pension contributions to the SPP.

4. The AFP, within a period of five (5) days from receipt of said declaration, prepares and sends to the ONP, a properly folioed file with the original documentation, which includes the following:

a) Documents delivered by the affiliate, as contemplated in numeral 1;

b) Information on the approximate differential of contributions to be paid to the ONP, as referred to in subsection c) of numeral 2;

c) Report of remunerations and contributions to the SPP, as referred to in subsection d) of numeral 2.

II. On the qualification of the right to pension in the regime of D.L. 19990

5. The ONP, once received the file, will proceed to qualify the right to obtain a pension for retirement under the Regime of D.L. 19990.
   In the exercise of supervisory powers, the ONP may demand the exhibition of the originals of the documentation presented or copies certified by a competent public official.

6. In case the ONP determines that the right to pension belongs to the applicant, the following procedure will be followed:

6.1. Actions to be taken by the ONP:

a) Sends a letter to the AFP communicating the admissibility of the affiliate's pension request in the SNP and the calculation of the debt for the differential of contributions SPP-SNP to be paid to the ONP, for all periods comprised during the stay in the SPP.

b) Keeps the file referred to in numeral 4 in its possession.

6.2. The AFP, within a period not exceeding five (5) days from receipt of the letter referred to in subsection a) of numeral 6.1, will notify the affiliate, under penalty, of the value of the differential of contributions between the SPP and SNP, calculated by the ONP, as well as the admissibility of their request, according to numeral 6.1 (a).

III. On the commitments of the affiliate

6.3. The affiliate, once received the communication referred to in the previous numeral, signs and delivers to the AFP a sworn statement in which the following must be expressly stated:

a) That they have taken knowledge of the terms of the calculation of the debt to the ONP for the differential of pension contributions between the SPP and the SNP; according to numeral 6.1 (a);

b) That, having taken knowledge, as the case may be, of what is established in Laws No. 27617 and 27252, as well as their respective regulations, they have decided to proceed with the nullity of affiliation procedure in the SPP;

c) That they have decided to assume the payment of the differential of pension contributions between the SPP and the SNP, which may be made in a lump sum through the SUNAT in accordance with what is prescribed in Law No. 27334 and its regulation D.S. No. 039-2001-EF, or according to what the Tax Code establishes. In both cases, the definitive value of the debt will include the late interest corresponding to the contributions to the ONP, up to the date of its cancellation.

In the case that, sixty (60) days having passed from the date of notification of the communication referred to in numeral 6.2, the affiliate has not presented the sworn statement referred to in this numeral, the procedure will be considered concluded. This will also occur in the event that the affiliate, in writing, manifests within the stated period their withdrawal from continuing with the nullity of affiliation procedure. Under such circumstances, the AFP must communicate said situation to the ONP within ten (10) days of the affiliate's communication of withdrawal, or after sixty (60) days have passed from the omission of presentation of the corresponding sworn statement, so that this entity proceeds to return to the AFP the file referred to in numeral 4, for its conservation.

Likewise, the procedure will be considered concluded if the affiliate presents the sworn statement incomplete.

IV. On the issuance of the nullity of affiliation resolution

6.4. The AFP, once received the sworn statement referred to in the previous numeral, will send to the SBS, on the last day of each week, the information referred to in Annex XXXIII as referred to in subsection e) of Article 52 of Title V of the Compilation.

6.5. The SBS, once received the documentation referred to in the previous numeral, issues the corresponding Resolution of Nullity of Affiliation to the SPP, notifying it to the AFP. The issuance of the Resolution of Nullity and its respective notification shall not exceed thirty (30) days.

6.6. The AFP, based on what is stated in the previous numeral, proceeds as follows:

a) Sends a copy of the nullity resolution to the ONP within five (5) days of its issuance;

b) Notifies such situation to the affiliate, within five (5) days following the receipt of the nullity of affiliation resolution to the SPP, in accordance with what is established in Annex IX of Title V of the Compilation;

c) Sends to the SUNAT, according to the schedule established by said institution, the magnetic medium in accordance with what is established in Superintendent Resolution No. 105-2001/SUNAT containing the information of the mandatory contributions declared and paid by the employer and registered in the affiliate's individual capitalization account, as well as the corresponding payment, in the form, deadlines, and conditions that SUNAT has established for such effect;

d) Sends, within a period not exceeding thirty (30) days from the issuance of the Resolution of Nullity, the redeemed value of the Recognition Bonus, to the account of the financial institution designated by the ONP referred to in Circular No. AFP-0003-2001, if applicable;

e) Once the balance of the mandatory contributions of the individual capitalization account is determined with respect to the amount to be transferred to the ONP, if there is a balance in favor, returns the difference to the affiliate within a period of five (5) days from said determination;

f) Notifies the last employer of the affiliate whose nullity of affiliation has been declared, for the purpose of communicating to them the new pension situation of the same. The period for this notification shall not exceed ten (10) days after the nullity of affiliation is declared.

6.7. The affiliate, once notified of the nullity of affiliation resolution by the AFP, proceeds to cancel the amount of the debt concepts for contributions to the SNP administered by the ONP, in the form, deadline, and conditions established by SUNAT for such effect.

6.8. If applicable as stated in the previous numeral, SUNAT receives the funds remitted by the affiliate for the differential of SPP-SNP contributions, which will be validated by the ONP through the SUNAT consultation system.

V. On the granting of the pension in the Regime of D.L. 19990.

6.9. In case the ONP determines that the affiliate has the right to a retirement pension in the Regime of D.L. 19990 and they are not satisfied with the amount of the calculated pension, they may file a complaint with the ONP, under the procedures and opportunity determined by the norms that regulate said entity.

VI. On the non-granting of pension in the Regime of D.L. 19990 and the filing of appeal resources.

7. In case the ONP determines that the applicant for nullity of affiliation to the SPP does not have the right to a pension in the SNP, the following is proceeded to:

7.1. The ONP communicates such situation to the AFP, through duly documented documentation, and returns the file to the AFP, for its conservation. Based on this information, the AFP communicates to the affiliate the denial of the Nullity of Affiliation Request to the SPP for the invoked cause. The AFP has a period of five (5) days to communicate said situation to the affiliate, counted from the moment it has been notified by the ONP.

7.2. The affiliate, based on the documentation sent by the AFP, in case they are not satisfied with it, may file a complaint with the AFP, having for this a period of fifteen (15) days counted from the date of its receipt. To this end, the affiliate may attach additional complementary information that supports their complaint.

7.3. The AFP, once received the corresponding complaint from the affiliate, will forward it accompanied by the respective file to the SBS, within a period not exceeding five (5) days, counted from the date of its receipt.

7.4. The SBS, once received the documentation referred to in the previous numeral, will forward the documentation to the ONP within ten (10) days following, for the purpose that said entity, within a period of sixty (60) days, ratifies or rectifies its pronouncement on the right to pension under the Regime of D.L. 19990.

7.5. In case the ONP, once evaluated the file, resolves that the affiliate applicant for the nullity of their affiliation to the SPP does have the right to a pension in the Regime of D.L. 19990, the procedure described in numerals 6.1 to 6.9 of this Operating Regulation will be followed.

7.6. In case the ONP, once evaluated the file, ratifies its initial pronouncement, it will forward said information to the SBS, which, based on said communication, will issue a resolution denying nullity of affiliation in the SPP under the invoked cause. Such resolution will be reached to the AFP, which in a term not exceeding five (5) days from receipt, will send a copy of it to the affiliate.

7.7. The affiliate, against the resolution issued by the SBS, may file the appeal resources that correspond, within the framework of the General Administrative Procedure Law, Law No. 27444. If considered appropriate, they will reach said resource to the AFP, which in turn will forward it to the SBS within a period not exceeding five (5) days.

7.8. Once received the corresponding appeal resource, the SBS will forward said file to the ONP, which will have a period of sixty (60) days to issue a ratifying or rectifying pronouncement regarding the right to retirement pension of the affiliate under the regime of D.L. 19990.

7.9. In case the ONP, once evaluated the file, resolves that the affiliate does have the right to a retirement pension, the procedure described in numerals 6.1 to 6.9 of this Article will be followed.

7.10. In case the ONP, once evaluated the file, ratifies its initial pronouncement, it will forward said information to the SBS, which in turn will issue a resolution denying nullity of affiliation to the SPP in second instance. Such resolution will be reached to the AFP, which in a term not exceeding five (5) days from receipt, will send a copy of it to the affiliate, thereby exhausting the administrative route.

TRANSITIONAL AND FINAL PROVISIONS

First.-
In accordance with what is established in Law No. 27617, workers affiliated to the SPP who have nullity of affiliation requests declared admissible by the AFP or pending before it, may withdraw from them by adhering to what is provided in the penultimate paragraph of the Fifteenth Final and Transitional Provision of the Single Consolidated Text of the SPP Law, approved by Supreme Decree No. 054-97-EF. To this end, workers must send a written communication to the AFP to which they are affiliated, manifesting their decision to adhere to what is provided in the Fifteenth Final and Transitional Provision of the Single Consolidated Text of the SPP Law, leaving without effect the nullity of affiliation procedures they are carrying out before the AFP.

Second.-
The nullity of affiliation requests that have been declared admissible as well as those that are pending, must adapt to what is provided in this norm, provided they do not have a resolution that approves said nullity of affiliation.
To such effect, the requests that are covered by this provision will be evaluated again by the AFP under the parameters of what is stated in numeral 2 of section I of Article 3 of the Operating Regulation referred to in this resolution, except in the cases of affiliates who have adhered to what is provided in the preceding Transitional Provision. Exceptionally for these cases, the period referred to in the first paragraph of numeral 2 of section I of Article 3 of the Operating Regulation, shall be not exceeding sixty (60) calendar days, counted from the entry into force of this resolution.

Third.-
The procedures referred to in numerals 5 and 6.9 of Article 3 of this Operating Regulation will be subject to the deadlines determined by the ONP, according to its applicable norms and provisions.