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

“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"

SMV Deputy Superintendency Resolution

No. 043-2024-SMV/10

Lima, 25 July 2024

Summary: Interfondos S.A. Sociedad Administradora de Fondos is sanctioned with a fine amounting to three (3) UIT, equivalent to S/12 900.00 (Twelve thousand nine hundred and 00/100 Soles) for having incurred two (02) infractions: one (1) serious infraction classified in Annex VII, literal A), numeral 2, subparagraph 2.8 and one (1) minor infraction, classified in Annex VII, literal A), numeral 3, subparagraph 3.4 of the Sanctions Regulation, for having made investments not permitted on behalf of the funds under its administration and for not complying with the participation limits in a fund under its administration, respectively.

Administrated parties
:
Interfondos S.A. Fund Management Company
Subject
:
Administrative sanctioning procedure
File No. : 2024022827

The Deputy Superintendent of Prudential Supervision

VIEWS:

Administrative file No. 2024022827, Report No. 892-2024-SMV/10.3, issued by the General Intendancy of Prudential Compliance, as well as the defenses submitted by Interfondos S.A. Sociedad Administradora de Fondos; and,

CONSIDERING:

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

I. Facts

2. Through Reports No. 1127 and 1128-2022-SMV/10.2, the General Intendancy of Entity Supervision (hereinafter, IGSE) informed the General Intendancy of Prudential Compliance (hereinafter, IGCP) of the indications of possible infractions by Interfondos S.A. Sociedad Administradora de Fondos (hereinafter, INTERFONDOS SAF);

3. As a result of the evaluation of said indications of infraction and under the provisions of the Single Ordered Text of the General Administrative Procedure Law, Law No. 27444, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO DE LA LPAG), the IGCP, through Official Letter No. 2204-2024-SMV/10.3, notified on 21 May 2024 (hereinafter, OFFICIAL LETTER OF CHARGES), filed charges against INTERFONDOS SAF for infractions of the Regulation of Mutual Funds for Investment in Securities and their Management Companies, approved by CONASEV Resolution No. 068-2010-EF/94.01.1 and its amendments (hereinafter, REGULATION);

4. On 10 June 2024, INTERFONDOS SAF submitted its defenses to the observations made;

5. The charges filed against INTERFONDOS SAF, as well as the latter's defenses and their evaluation, have been analyzed in Report No. 892-2024-SMV/10.3 issued by the IGCP, which has been submitted to the knowledge of this Deputy Superintendency;

6. In observance of the Principle of Due Process contemplated both in Article IV, numeral 1.2, of the Preliminary Title and in Article 248, subparagraph 2, of the TUO DE LA LPAG, through Official Letter No. 2873-2024-SMV/10, the administrative file referred to in Report No. 892-2024-SMV/10.3 was made available to INTERFONDOS SAF for its review;

II. Issues to be determined

7. In the present administrative procedure, in the opinion of this Deputy Superintendency of Prudential Supervision, it is appropriate to determine the following:

a. Whether or not INTERFONDOS SAF incurred an infraction set forth in Annex VII, literal A), numeral 2, subparagraph 2.8 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), for having made investments not permitted on behalf of the funds under its administration;

b. Whether or not INTERFONDOS SAF incurred an infraction set forth in VII, literal A), numeral 3, subparagraph 3.4 of the SANCTIONS REGULATION, for not complying with the participation limits in a fund under its administration;

c. Whether or not it is appropriate to impose a sanction on INTERFONDOS SAF;

III. Analysis

3.1 Applicable regulations

A. FIRST CHARGE: ON INVESTMENTS NOT PROVIDED FOR

8. On the matter, it must be taken into account that Article 121 of the REGULATION provides the following:

“Article 121.- Excesses and Investments not provided for due to attributable causes For the purposes of Article 251 of the Law, it is understood that excesses and investments not provided for in the investment policy of the mutual fund occur due to causes attributable to the management company, when they originate directly from the management of the management company itself.

Excesses or investments not provided for in the investment policy that occur due to causes attributable to the management company must be remedied no later than the following business day after they occur; otherwise, they must be disclosed as a material fact clearly indicating the condition attributable to the management of the management company.

Notwithstanding the foregoing, in the presence of duly justified reasons by the management company, before the line body of CONASEV, this excess or investment not provided for must be regularized within a maximum period of six (6) months, counted from the beginning of the excess or investment not provided for (…)

The management company must restore to the mutual fund and to the corresponding participants any harm caused by the excesses or investments not provided for in the investment policy of the mutual fund. Harm is considered to be the negative result arising from the difference between the liquidation or sale amount of the investment and the higher value recorded in its valuation during the stage of the excess or of the investment not provided for in the investment policy of the mutual fund.

(…)”.

9. In this regard, Article 113 of the REGULATION establishes the following:

“Article 113.- Investment in deposits in foreign financial entities and instruments representing them

Investment in deposits in companies of the financial system incorporated abroad, as well as in instruments representing them, referred to in subsection d) of article 249 of the Law, shall be permitted investments for mutual funds when the financial entity in which the deposit is made or the issuer of the instruments representing them complies with the following conditions:

a) It is incorporated in a country that complies with the criteria established in subsection a) of ANNEX I; and,

b) It is under the supervision of an entity of similar competence to the Superintendency.”

10. Likewise, Annex I, literal a), of the REGULATION provides:

“Annex I CONDITIONS FOR INVESTMENT ABROAD

a) The States referred to in subsection a) of article 114 of the Regulation must jointly comply with the following:

(…)

3) Not being included in the EU List of non-cooperative countries and territories for tax purposes; and,

(…)”

B. SECOND CHARGE: EXCESS PARTICIPATION

11. Regarding the maximum participation that a natural or legal person may have in a mutual fund for investment in securities, article 248 of the LMV states the following:

“Article 248.- Maximum participation.- No natural or legal person may be the holder, directly or indirectly, of more than ten percent (10%) of the net assets of a mutual fund, unless it is:

a) Founding contributors, during the first two (2) years of operations, and they must progressively reduce their participation in the mutual fund according to a plan for the sale of shares;

(…)”.

12. In this regard, articles 88 and 89 of the REGULATION provide the following:

“Article 88°.- Calculation of maximum participation For the calculation of the limits indicated in Article 248 of the Law, one hundred percent (100%) of the shares subscribed in co-ownership shall be taken into account.

(…)

“Article 89°.- Founding contributor For the purposes of the provisions of subsection a) of Article 248 of the Law, founding contributors shall be understood as the participants who join the mutual fund up to the first month after the start of activities of the mutual fund, except as provided in the last paragraph of this article.

If the founding contributor has excess participation in the mutual fund, originating before the first month from the start of activities has been completed, they shall have a period of up to two (2) years counted from the start of activities to reduce their participation in the mutual fund, until the respective excess is regularized.

(…)”

3.2 Charge

A. FIRST CHARGE: UNFORESEEN INVESTMENTS

13. On 25 February 2020, the European Union updated the list of non-cooperative countries and territories for tax purposes (hereinafter, LIST), including, among other countries, Panama and Cayman Islands. As a result, from that date, mutual funds may not make investments in deposits in companies of the financial system, or instruments representing them, incorporated in Panama, Cayman Islands, and the other countries on the LIST1 ;

14. From the review of the investment portfolio of the mutual funds managed by INTERFONDOS SAF, the SMV observed that, on 1 June 20202 , the management company made, on behalf of the mutual fund for investment

[1] It should be noted that, at that date, various mutual funds managed by INTERFONDOS SAF had investments in deposits of companies of the financial system, or instruments representing them, incorporated in Panama. Therefore, these investments not permitted and not provided for in the investment policy occurred for causes not attributable to the management of the management company, for which the SAF had a period until 17 May 2021 to remedy these excesses.

[2] According to the Valuation Files submitted by INTERFONDOS SAF.

in securities called IF Oportunidad FMIV (hereinafter, FONDO OPORTUNIDAD), the purchase of 20 000 securities of the negotiable certificate of deposit, with security code XS2075790092, issued by Banistmo S.A., a company incorporated in Panama;

15. Likewise, it was observed that, on 3 and 7 July 20203 , INTERFONDOS SAF made, on behalf of the mutual fund for investment in securities called IF XXVII Custodia Dólares FMIV (hereinafter, FONDO CUSTODIA), the purchase of 9 000 securities on each date, of the negotiable certificate of deposit, with security code XS2115086477, issued by Banistmo S.A;

16. The foregoing is shown in the following table:

Date Fund Instrument Purchase /
Sale
Nominal amount of investment
26/2/20
Fondo Oportunidad CDN de
Banistmo S.A.

• 500,000
  1/06/20 20,000 520,000
  26/2/20
  Fondo Custodia CDN de
  Banistmo S.A.
• 1,569,000
  2/6/20 -9,000 1,560,000
  2/7/20 -9,000 1,551,000
  3/7/20 9,000 1,560,000
  7/7/20 9,000 1,569,000

17. In that sense, considering that the issuer Banistmo S.A. is incorporated in Panama, a country included in the LIST, the investments in the aforementioned securities are considered not permitted and not provided for in the investment policy of the mutual funds, in accordance with the provisions of article 113, subsection a), and Annex I, literal a), numeral 3), of the REGULATION. In addition to this, because the investments made by INTERFONDOS SAF on behalf of the FONDO OPORTUNIDAD and the FONDO CUSTODIA were made after the update of the LIST, these are considered attributable to the management of the management company, and therefore should have been remedied no later than the following business day after they occurred, in accordance with article 121 of the REGULATION;

18. By means of Official Letter No. 3734-2020-SMV/10.24 , notified on 19 October 2020, INTERFONDOS SAF was informed, among others, that through the detailed operations it would have made, on behalf of the FONDO OPORTUNIDAD and on behalf of the FONDO CUSTODIA, investments not permitted, considered attributable to the management of the management company. In that regard, the immediate correction of such prohibited investments was requested;

19. In response to Official Letter No. 3734-2020-SMV/10.2, on 23 October 2020, INTERFONDOS SAF stated the following:

“1. Increase of position in Negotiable Certificates of Deposit issued by Banitsmo S.A., by the funds IF XXVII Custodia Dólares FMIV and IF Oportunidad FMIV

1.1 IF Custody Dollars FMIV

[3] In accordance with the Valuation Files submitted by INTERFONDOS SAF.

[4] With File No. 2020034390.

In the case of the fund IF XXVII Custodia Dólares FMIV (hereinafter, “Custodia Dólares XXVII”), we must point out that the nominal investment amount it currently holds in Negotiable Certificates of Deposit issued by Banitsmo S.A. (hereinafter, “the instruments”) is the same as it held on 26 February 2020, the date on which the Material Event was reported:

What explains the reductions in the nominal amount occurring on 2 June and 2 July of 2020, were two sale transactions of these instruments that the fund Custodia Dólares XXVII made to the fund “IF Mediano Plazo FMIV”, each for a nominal amount of US$ 9,000 (nine thousand and 00/100 US dollars), respectively.
These transactions were carried out for the purpose of the fund Custodia Dólares XXVII obtaining liquidity for the payment of the unified commission.
Subsequently, for the purpose of regularizing the transactions mentioned in the preceding paragraph, on 3 and 7 July 2020, the fund Custodia Dólares XXVII carried out two purchase transactions of the same instruments from the fund “IF Mediano Plazo FMIV”, each for a nominal amount of US$ 9,000 (nine thousand and 00/100 US dollars), such that it again holds the same nominal amount it had on 26 February 2020, the date on which the Material Event was reported. In that regard, the aforementioned transactions do not impair the projected profitability resulting from the structure of the fund Custodia XXVII, which is 2.20% annualized.
1.2. IF Oportunidad FMIV
In relation to the fund IF Oportunidad FMIV, the increase observed originated from the purchase of the instruments made on 1 June 2020 from the fund IF XXV Custodia Dólares FMIV (hereinafter, “Custodia Dólares XXV”), for an amount of US$ 20,000 (twenty thousand dollars and 00/100 US dollars):
It should be noted that the fund Custodia Dólares XXV made that sale in order to obtain liquidity for the payment of the unified commission. For the purpose of regularizing this transaction, it was evaluated that the fund Custodia Dólares XXV purchase the instruments for the same nominal value from the fund IF Oportunidad FMIV; however, the fund Custodia Dólares XXV does not have the liquidity to carry out said transaction and is close to maturing on 25 October 2020. We must point out that the purchase of the instruments does not affect the return of the participants of the fund IF Oportunidad FMIV, given that on 01 June when said transaction was carried out, the rate for a term deposit for 248 days (maturity term of the CD of Bansitmo) was less than 0.50% on average while said certificate was

acquired at a yield of 1.26%, higher than local alternatives and even foreign ones under the same risk and considering the size of the nominal investment.

As can be observed, the increases indicated in the Official Letter were not due to the acquisition of new instruments in the market, additional to those reported through the Material Event, but to purchase and sale transactions that both the fund Custodia Dólares XXVII and IF Oportunidad FMIV carried out for liquidity purposes for the payment of the unified commission.

Likewise, it should be taken into account that the instruments will mature on 28 October 2020, which will give rise to the correction of these investments both in the fund Custodia Dólares XXV and in the fund IF Oportunidad FMIV”.

20. On this matter, it should be noted that the management companies must adopt the necessary mechanisms so that, during their management, the regulations are not breached when investing and acquiring securities on behalf of the mutual funds under their management;

B. SECOND CHARGE: EXCESS OF PARTICIPATION

21. By Resolution of the General Superintendence of Supervision of Entities No. 050-2019-SMV/10.2 of 10 June 2019, the registration of the mutual fund for investment in securities called IF I Renta 3Y Latam FMIV (hereinafter, FONDO LATAM) 5 was approved in the Public Registry of the Securities Market (hereinafter, RPMV). The fund began activities on 1 July 20196 ;

22. Since, before the first month from the start of activities of FONDO LATAM was completed, the PARTÍCIPES7 subscribed, in co-ownership, units of the fund, through contracts A098249 and B091403, they had the status of founding contributors;

23. With contracts A098249 and B091403, the PARTÍCIPES, together, had incurred an excess of participation, since they held more than 10% of the participation units of FONDO LATAM (they held 17.58%), therefore, they should have progressively decreased their participation in the mutual fund during the first two (2) years of operations, in accordance with the provisions of article 248 of the LMV. However, the excess remained after the indicated period ended;

24. By Official Letter No. 4292-2021-SMV/10.2 of 29 October 20218 , the IGSE required INTERFONDOS SAF, among others, the immediate correction of the excess of participation of the PARTÍCIPES, specifying that the period for correction had expired on 20 September 20219 , in accordance with the provisions of the second paragraph of article 89 of the REGLAMENTO;

25. By writing of 4 November 2021, INTERFONDOS SAF acknowledged the excess of participation of the PARTÍCIPES in the FONDO

[5] By Resolution of the General Directorate of Supervision of Entities No. 149-2022-SMV/10.2 of 28 December 2022, the exclusion of FONDO LATAM from the RPMV was ordered.

[6] With a material event of 3 July 2019, INTERFONDOS SAF communicated through File No. 2019028296 that FONDO LATAM commenced operations on 1 July 2019.

[7] The Annex attached to this resolution details the full data of the natural persons to whom the names used in this resolution belong, and likewise, where applicable, their email addresses.

[8] Official letter issued in File No. 2021041042.

[9] Considering the suspension of deadlines established in Article 28 of Supreme Decree No. 029-2020 and extended until 10 June 2020 by Supreme Decree No. 053-2020 and Supreme Decree No. 087-2020-PCM.

LATAM, and indicated that the same had been caused by its interpretation of Article 88 of the REGULATION10. The aforementioned document reveals the following:

"In this regard, we are pleased to inform you that to date the excess participation has been remedied, since the participants have decided to individualize their participation; thus, in contract A098249 the sole holder is SEÑORA1; whereas in contract B091403, the sole holder is SEÑORA2; resulting in each of them being a participant, as of 3 November 2021, of 8.7883% (SEÑORA1) and 8.7891% (SEÑORA2) of the FUND, respectively. It should be noted that the fund's net assets, as of 3 November 2021, amounted to US$ 1 762 295.19 (one million seven hundred sixty-two thousand two hundred ninety-five and 19/100 United States dollars). (…)"

26. According to the review of the "File of unit value and main accounts" and the "File of participants" submitted by INTERFONDOS SAF on 5 November 202111, it was possible to note that from 4 November 2021, the excess participation of the PARTICIPANTS was corrected, given that the participation in the FUND of Ms. Daggy Hassinger Moreno and Ms. Teresa Moreno Viuda de Hassinger amounted to 8.79%, as each held a total of 2 999.25 units out of a total of 34,127.74 as of that date. Consequently, the regularization of the excess participation occurred outside the period established in Article 89 of the REGULATION;

3.4 Defense

27. In the document submitted on 10 June 2024, INTERFONDOS SAF acknowledges in a precise, concise, clear, express, unconditional and written manner the facts described in the CHARGE NOTICE; therefore, it requests that, when evaluating the imposition of the sanction, the mitigating circumstances of liability established in Article 26 of the Sanctions Regulations, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATIONS), be considered;

On Unforeseen Investments

28. Regarding the acknowledgment of the commission of the infringement, INTERFONDOS SAF reiterates that it acknowledges the act in which it has incurred;

29. Regarding the offender's contribution to the clarification of the infringement, INTERFONDOS SAF indicates that, on 23 October 2020, it responded to what was indicated in Official Letter No. 3734-2020-SMV/10.2, the document through which it stated that the funds IF Oportunidad FMIV and IF Custodia Dólares XXVII FMIV made investments in Banitsmo S.A., but that these were not new purchases, but cross-purchases between mutual funds to generate liquidity. In this way, it specifies that the investments reported on 16 February 2020 did not increase, but were maintained;

[10] In this regard, Interfondos stated "In that way, the understanding given to Article 88 of the REGULATION is that 100% of the units subscribed in co-ownership must be considered, but of the units actually held by the participant; that is, not 100% of the contract, but 100% of what is subscribed in co-ownership."

[11] Communicated through File No. 2021042131.

30. It adds that, in the case of IF Custodia Dólares XXVII FMIV, on 16 February 2020 it was reported that its investment in Banitsmo S.A was USD 1´569,000, a fact that was maintained until the end of the fund's term on 4 February 2021. INTERFONDOS SAF indicates that, on 2 June and 2 July 2020, it was decided to make sales of said instruments to obtain liquidity and cover the payment of commissions (for a lesser amount of USD 18,000 (eighteen thousand and 00/100 United States dollars);

31. It refers that, similarly, in the case of the fund IF Oportunidad FMIV, a purchase was made so that the fund IF XXV Custodia Dólares FMIV could obtain liquidity and cover the payment of commissions (this motivated by the increase in redemptions). INTERFONDOS SAF indicates that, although the intention was to return said investments in Banitsmo S.A. to the fund IF XXV Custodia Dólares FMIV, the latter did not have liquidity to cover the payment. It also highlights that the amount acquired was lesser, amounting to USD 20,000 (twenty thousand and 00/100 United States dollars);

32. INTERFONDOS SAF states that, in both cases, there was no intention to increase a position beyond that reported on 16 February 2020, but rather to maintain what was reported. It adds that at no time was there any act of bad faith or intention to breach the REGULATION, but rather to respect the investment made in order to exit in an orderly manner without affecting the participants' investment.

33. Regarding the remediation carried out after its request or the initiation of the administrative sanctioning procedure, INTERFONDOS SAF indicates that, after the information provided by Official Letter No. 3734-2020-SMV/10.2, the situation was regularized. It adds that the fund IF XXV Custodia Dólares FMIV was a structured fund, so it was not possible to dispose of the investments without causing great harm to the participants; therefore, as it indicates, it was decided to reverse the transaction to its previous state. On the other hand, regarding the merits, IF Oportunidad FMIV indicates that this, by providing liquidity to the IF XXV Custodia Dólares FMIV fund (whose typology was also structured), was unable to reverse the transaction inasmuch as the latter fund no longer had the necessary liquidity and, above all, because the transaction in Banitsmo S.A. was close to maturing;

34. INTERFONDOS SAF highlights that this involuntary error did not cause any harm to the mutual funds or their participants;

On the excess of participation

35. Regarding the acknowledgment of the infringement, INTERFONDOS SAF reiterates that it acknowledges the infringement in which it has incurred;

36. Regarding the offender's contribution to the clarification of the infringement, INTERFONDOS SAF indicates that, as stated in the document submitted on 4 November 2021, the reason that generated its involuntary error was the interpretation given to article 88 of the REGULATION;

37. As for the remediation carried out after its request or the initiation of the administrative sanctioning procedure, INTERFONDOS SAF states that the excess of participation was remedied as soon as Letter N° 4292-2021-SMV/10.2 was received, since the participants Daggy Hassinger Moreno and Teresa Moreno Viuda de Hassinger decided to individualize their participation; thus, in contract A098249 the sole holder was Ms. Daggy Hassinger Moreno; whereas in contract B091403, the sole holder was Ms. Teresa Moreno Viuda de Hassinger; resulting in each of them being a participant, as of 3 November 2021, of 8.7883% (Daggy Hassinger Moreno) and 8.7891% (Teresa Moreno Viuda de Hassinger) of the IF I Renta 3Y Latam FMIV fund, respectively (the management company specifies that the fund, to date, has been liquidated with Resolution of the General Superintendency of Supervision of Entities N° 149-2022-SMV/10.2);

3.5 Evaluation of the defenses

38. This analysis must begin by stating that INTERFONDOS SAF, relying on article 26° of the SANCTIONS REGULATION, has expressly acknowledged its responsibility for the infringements alleged, declaring that it acknowledges in a precise, concise, clear, express, unconditional and written manner the facts described in the CHARGES LETTER;

39. Without prejudice to the foregoing, it is necessary to point out that INTERFONDOS SAF is a company supervised by the SMV, with operating authorization granted by CONASEV Resolution N° 163-95-EF/94.10 of 25 April 1995, and has knowledge of the regulations under which mutual investment funds operate, and must comply with the LMV and the REGULATION, which determines the investments permitted for mutual funds, as well as the participation limits therein;

40. However, it has been proven that INTERFONDOS SAF made non-permitted investments on behalf of FONDO OPORTUNIDAD and on behalf of FONDO CUSTODIA, with the acquisition of securities issued by Banistmo S.A., incorporated in Panama, in accordance with the provisions of article 113, subsection a), and Annex I, literal a), numeral 3), of the REGLAMENTO. Likewise, it has breached the provisions of article 121 of the REGLAMENTO, since such investments were not corrected on the day following their occurrence and were not disclosed as a material event clearly indicating the condition attributable to the management of the management company;

41. Likewise, it has been proven that INTERFONDOS SAF failed to correct the excess participation occurring in FONDO LATAM, within the term established by article 248 of the LMV and article 89 of the REGLAMENTO, since the excess participation of the PARTÍCIPES remained until 4 November 2021 when the term for said correction had expired on 20 September 2021; that is, 45 days after the deadline;

42. On the other hand, it should be noted that what INTERFONDOS SAF mentioned in relation to the sanction criteria and the mitigating circumstances of responsibility established in article 26 of the REGLAMENTO DE SANCIONES will be considered at the time of evaluating the sanction to be imposed;

43. Consequently, INTERFONDOS SAF has incurred the infringement classified as serious typified in Annex VII, literal A), numeral 2, subsection 2.8 of the REGLAMENTO DE SANCIONES, which establishes as an infringement of a serious nature “Carrying out with the fund's resources, operations or investments not permitted, or carrying them out without observing the provisions of the regulations”.

44. Likewise, INTERFONDOS SAF has incurred an infringement classified as minor typified in Annex VII, literal A), numeral 3, subsection 3.4 of the REGLAMENTO DE SANCIONES, according to which it constitutes an infringement “Not complying with the regulations regarding the limits of participation in the fund”;

IV. Evaluation of the sanction

45. In accordance with article 344° of the Texto Único Ordenado de la Ley del Mercado de Valores, Decreto Legislativo N° 861; and its amendments, approved by Decreto Supremo N° 020-2023-EF (hereinafter, TUO DE LA LMV), article 25° of the REGLAMENTO DE SANCIONES12, in accordance with article 248°, numeral 313, of the TUO DE LA LPAG14 and article 25715 of the aforementioned normative body16; the administrative sanctions imposed must take into account the criteria set forth by the TUO DE LA LMV, the REGLAMENTO DE SANCIONES and

[12] “Article 25.- SANCTION CRITERIA The administrative sanctions imposed must take into account the following criteria: a) Prior record, for final sanctions imposed by the SMV within the term of four (4) years prior to the commission of the infringement to be sanctioned. The commission of the same offence in the year prior to the offence to be sanctioned is not considered a precedent. b) Recidivism, by the commission of the same offence, takes into account that final sanction imposed by the SMV within a period of one (1) year prior to the commission of the offence to be sanctioned. c) Circumstances of the commission of the offence. d) Economic damage caused and its impact on the market. e) Illicit benefit resulting from the commission of the offence. f) Probability of detection of the offence. g) Severity of the harm to the public interest and/or the protected legal asset. h) The existence or not of intent in the conduct of the offender. When, from the assessment of the aforementioned criteria, it is found that there is no proportionality between the sanction to be imposed and the facts alleged, by way of exception and by means of a reasoned resolution, a sanction corresponding to a lower classification than the one provided for may be imposed”.

[13] Article 230°, numeral 3 of Law No. 27444 (hereinafter, LPAG).

[14] “Article 248.- Principles of the administrative sanctioning power The sanctioning power of all entities is additionally governed by the following special principles: (…) 3. Reasonableness.- Authorities must ensure that the commission of the sanctionable conduct is not more advantageous for the offender than complying with the infringed rules or assuming the sanction. However, the sanctions to be applied must be proportionate to the non-compliance classified as an infringement, observing the following criteria set forth for the purpose of their gradation: a) The illicit benefit resulting from the commission of the infringement; b) The probability of detection of the infringement; c) The severity of the damage to the public interest and/or the protected legal asset; d) The economic harm caused; e) Recidivism, for the commission of the same infringement within a period of one (1) year from the time the resolution sanctioning the first infringement became final. f) The circumstances of the commission of the infringement; and g) The existence or not of intent in the conduct of the infringer”.

[15] “Article 257°.- Exculpatory and mitigating circumstances of liability for infringements 1.- The following constitute conditions exculpating liability for infringements: a) Force majeure or fortuitous event duly proven. b) Acting in compliance with a legal duty or the legitimate exercise of the right of defense. c) Mental incapacity duly proven by the competent authority, provided that it affects the aptitude to understand the infringement. d) The mandatory order of a competent authority, issued in the exercise of its functions. e) Error induced by the Administration or by a confusing or illegal administrative provision. f) Voluntary rectification by the possible sanctioned party of the act or omission imputed as constituting an administrative infringement, prior to the notification of the imputation of charges referred to in paragraph 3) of article 253. 2.- The following constitute conditions mitigating liability for infringements: a) If, once an administrative sanctioning procedure has been initiated, the infringer expressly and in writing acknowledges their liability. In cases where the applicable sanction is a fine, it shall be reduced to an amount not less than half of its value. b) Others established by special regulation”.

[16] Article 2 of Legislative Decree No. 1272 amended Article 236-A of the LPAG, and in that sense incorporates and restructures the exculpatory and mitigating circumstances of liability.

the TUO DE LA LPAG, as well as the mitigating and exonerating circumstances of responsibility regulated in articles 26 and 27 of the REGLAMENTO DE SANCIONES, in accordance with the provisions of article 257° of the TUO DE LA LPAG;

46. Within that framework, the evaluation of the sanction must consider: a) Prior record of the offender; b) The seriousness of the damage to the public interest and/or protected legal interest; c) The harm caused and its impact on the market; d) Recidivism; e) The circumstances of the commission of the infraction; f) The illicit benefit resulting from the commission of the infraction; g) The existence or not of intent in the offender's conduct; and h) The probability of detection of the infraction;

47. In that sense, in order to reconcile the criteria of the TUO DE LA LPAG with those indicated in the TUO DE LA LMV and in the REGLAMENTO DE SANCIONES, and so that these criteria are adequately considered so that their assessment observes the principle of reasonableness and the sanction to be imposed is appropriate to them, the following criteria are analyzed;

48. With regard to the prior sanction record, it must be noted that in accordance with the provisions of article 25° of the REGLAMENTO DE SANCIONES, final sanctions imposed by the SMV within the period of four (4) years prior to the commission of the infraction to be sanctioned constitute prior record with respect to any type of infraction;

49. In that sense, from the review carried out in said period, in relation to the charges under evaluation, it has been verified that INTERFONDOS SAF has the following prior record:

Nº	Resolución	Resolvió	Firmeza	Antecedente (*)
i	Superintendency Adjunct Resolution SMV N° 037-2016-SMV/1017	INTERFONDOS SAF is sanctioned with a warning, for having incurred one (01) infraction of a serious nature classified in Annex VII, numeral 2, subsection 2.5, of the Reglamento de Sanciones, approved by Resolución CONASEV N° 055-2001-EF/94.10 (hereinafter, ANTERIOR REGLAMENTO DE SANCIONES) for not constituting the guarantees or not replacing them, in the form, amount and conditions determined by the SMV for each case.	20/09/2016	A
ii	Superintendency Adjunct Resolution SMV N° 062-2017-SMV/1018	INTERFONDOS SAF is sanctioned with a fine of 1.2 UIT, equivalent to S/ 4 560,00 (Four thousand five hundred sixty and 00/100 Soles), for having incurred a minor infraction typified in Annex I, numeral 3, subparagraph 3.1 of the PREVIOUS SANCTIONS REGULATION by having submitted eventual information referring to facts of importance outside the period established by the regulations.	23/01/2017	A and B

[17] Notified on 29 August 2016.

[18] Notified on 30 December 2016.

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 (*)
		The charge referring to the timeliness in the communication of the fact of importance of 03 December 2014 is archived.
iii	Deputy Superintendency Resolution SMV No. 050-2018-SMV/1019	INTERFONDOS SAF is sanctioned with one (01) warning and a fine of 2.448 UIT equivalent to ascending S/ 9 669, 60 (Nine Thousand Six Hundred Sixty-Nine and 60/100 Soles), for having incurred two (02) minor infractions typified in Annex I, numeral 3, subparagraph 3.1 of the PREVIOUS SANCTIONS REGULATION, by not having complied with submitting eventual information within the period established in the regulations.	12/11/2018	A and B
iv	Deputy Superintendency Resolution SMV No. 035-2019-SMV/1020	INTERFONDOS SAF is sanctioned with eight (8) UIT equivalent to S/ 30 800,00 (Thirty thousand eight hundred and 00/100 Soles) for having incurred two (02) serious infractions typified in Annex VII, literal A, numeral 2, subparagraph 2.5 and Annex XIX, numeral 2, subparagraph 2.12, of the PREVIOUS SANCTIONS REGULATION for not complying with observing the provisions of the Regulation of Mutual Funds of Investment in Securities and their Management Companies regarding the subscription of shares and for not observing the Rules for the Prevention of Money Laundering and Financing of Terrorism regarding the timely presentation of the Annual Special Audit Plan, respectively.	10/01/2020	A and B
v	Deputy Superintendency Resolution SMV No. 025-2020-SMV/1021	INTERFONDOS SAF is sanctioned with a fine of 15.011 UIT, equivalent to S/ 62 737,20 (sixty-two thousand seven hundred thirty-seven and 20/100 Soles) for having incurred fourteen (14) minor infractions typified in Annex I, numeral 3, subparagraph 3.1 of the Sanctions Regulation, by not having complied with submitting eventual information within the period established by the applicable regulations and in two (2) serious infractions typified in Annex I, numeral 2, subparagraph 2.10 of the Sanctions Regulation, by not having complied with submitting periodic information within the period established by the applicable regulations.	07/10/2020	B

[19] Notified on 17 October 2018.

[20] Notified on 12 July 2019, subsequently was subject to challenge by INTERFONDOS SAF (appeal), the same that was declared unfounded through Superintendent Resolution No. 004-2020-SMV/02.

[21] Notified on 15 September 2020.

(*) Literals of recital number 7 of this Resolution.

50. With regard to recidivism for the commission of the same infraction, the firm sanction imposed by the SMV within the period 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 INTERFONDOS SAF does not present sanctions within the aforementioned period, for the commission of the same infractions subject of analysis in this administrative sanctioning procedure, so this criterion is not configured;

51. As for the circumstances of the commission of the infraction, it must be mentioned that INTERFONDOS SAF, in its capacity as a company supervised by the SMV, knows the rules that regulate the securities market and, in that sense, the rules that regulate its activity as a management company of mutual funds. However, INTERFONDOS SAF incurred the infractions subject of evaluation in this procedure;

52. With regard to the non-permitted investments made by the FONDO CUSTODIA and by the FONDO OPORTUNIDAD, INTERFONDOS SAF has stated that it incurred an infraction due to an involuntary error. The management company stated that the non-permitted investments were cross purchases between mutual funds to generate liquidity, always seeking to maintain the original holding;

53. The non-permitted investments were noticed by the SMV through Official Letter No. 3734-2020-SMV/10.2 notified on 19 October 2020, with which the management company was requested to immediately rectify them. In response to the cited official letter, INTERFONDOS SAF informed that the deposit certificates issued by Banitsmo S.A. matured on 28 October 2020; from which it follows that the situation exposed regarding the non-permitted investments held by the funds was regularized up to 149 days late with respect to the deadline;

54. It must be noted that the investments of the FONDO CUSTODIA did not imply an increase in the holding with respect to 26 February 2020, while those of the FONDO OPORTUNIDAD, the purchases implied that the holding of the negotiable deposit certificates in question increased by US$ 20 000 with respect to the holding of 26 February 2020, date on which the LIST was updated, investment that represented 0.023% of the portfolio value at the close of June 2020;

55. On the other hand, it must be indicated that the investments were made in a context in which the valuation rates of the deposit certificates subject of charge presented a decreasing trend, so given the nature of such types of instruments, the decrease in said rates was directly reflected in an increase in their prices;

56. It should be noted that what INTERFONDOS SAF has stated is not acceptable for an entity with several years operating in the securities market and managing mutual funds. Likewise, it should be noted that the liquidity needs of the mutual funds do not in any way justify the infringement. On the other hand, it has not been proven that the execution of the non-permitted investments was the only alternative of the management company to satisfy the liquidity need of the mutual funds that it declares in its defense;

57. Regarding the excess participation in which it has incurred, INTERFONDOS SAF states that it occurred due to an involuntary error in its reading of article 88 of the REGULATION. In this regard, it is observed that the correction of the excess occurred after the request made by the IGSE through Official Letter No. 4292-2021-SMV/10.2 of 29 October 2021, within the established deadline; thus the excess participations were regularized 45 days after the deadline;

58. Regarding the economic harm caused and the impact on the market, it has not been evidenced that the infractions incurred by INTERFONDOS SAF have produced a concrete quantifiable harm in the market, that is, it has not been determined that one or more investors have been concretely affected or caused economic damage, and therefore it has also not been evidenced that there has been an impact on the market;

59. Notwithstanding this, it should be noted that the purchase operations of non-permitted investments represented a total investment of US$ 38 000.00; an amount that, instead of being invested in permitted instruments, was invested in non-permitted instruments, exposing the FUND to interest rate risk and to investments related to countries and territories non-cooperative for tax purposes; which in turn implied an opportunity cost of the returns that could have been obtained in permitted investments;

60. Regarding the illicit benefit resulting from the commission of the infringement, it should be noted that it has not been proven that INTERFONDOS SAF has obtained a benefit directly related to the infractions subject to analysis in this administrative proceeding;

61. As for the seriousness of the harm to the public interest and/or protected legal interest, it has not been possible to prove that the actions of INTERFONDOS SAF in the commission of the infractions analyzed in this sanctioning proceeding have caused harm to the public interest. However, the legal interests related to the protection of the mutual fund industry and the duties of the management company to manage its activity prudently, caring for the interests of the participants as if they were its own, have been affected;

62. Indeed, the regulations regarding non-permitted investments that management companies must observe in the management of mutual funds seek to prevent investments in financial instruments that do not comply with the prudential criteria established in the regulations and that could harm the participants and the mutual fund industry. In this sense, the failure of a management company to observe the criteria for permitted investments established by the regulations does not contribute to achieving the aforementioned objective;

63. On the other hand, investor protection must be kept in mind, since if management companies allowed part of the fund's assets to be concentrated in a single participant or to exceed the limits established in the LMV, such a situation could lead to said participant or participants, upon requesting the redemption of their shares, unnecessarily exposing the other participants by having to liquidate positions to obtain the necessary liquidity to meet such redemptions, with the possibility of affecting the structure of the fund's portfolio;

64. In this sense, the redemptions of shares of participants that exceed the limits established in the regulations constitute a way to avoid concentrations that put the stability of the funds at risk, regardless of whether the excesses are due to attributable or non-attributable causes, so that the other participants are not affected in such cases;

65. Consequently, with the infringement related to the excess participation of FONDO LATAM, INTERFONDOS SAF has violated legal interests related to the protection of the mutual fund industry and the duties of the management company to behave with diligence, and in defense of market integrity, such as managing its activity prudently, caring for the interests of the participants as if they were its own;

66. Indeed, the objective of the excess participation limit that management companies must observe in the management of mutual funds is to achieve efficient management of portfolios considering an adequate combination of profitability and assumed risk, thus seeking to avoid concentrations, among others, of participants, which could harm them, the mutual fund industry and the financial system of which said industry is part. Consequently, the failure of a fund management company to observe the excess participation limits under the regulations does not contribute to achieving the aforementioned objective;

67. In this sense, it is the obligation of fund management companies that, when excesses in participation occur as in the present case, they take the corresponding measures in order to comply with the limits established by the LMV;

68. Regarding the existence or not of intent in the conduct of the offender, it has not been evidenced that INTERFONDOS SAF acted with intent in the commission of the infractions subject to charges;

69. With regard to the probability of detection of the infringement, it must be stated that in the present case the infringements incurred by INTERFONDOS SAF were evidenced as a result of the supervision and control activities carried out by the SMV on the information submitted by the management company daily to the SMV regarding the investments made by the mutual funds it manages. Therefore, the probability of detection of the infringement was high;

70. In addition to the foregoing, it is appropriate to analyze the exculpatory and mitigating circumstances of liability established in article 257° of the TUO DE LA LPAG as well as the mitigating and exculpatory conditions of liability established in articles 26° and 27° of the REGLAMENTO DE SANCIONES;

71. In this regard, in accordance with the provisions of article 27°22 of the REGLAMENTO DE SANCIONES, in accordance with article 257,

[22] “Article 27.- EXEMPTIONS FROM LIABILITY FOR INFRINGEMENTS” The following constitute conditions exempting from liability for infringements: a) Fortuitous event, force majeure or another exceptional situation that, in the opinion of the SMV, is comparable to a duly proven fortuitous event or force majeure. b) Acting in compliance with a legal duty or the legitimate exercise of a right of defense. c) Mental incapacity duly proven by the competent authority, provided that it affects the ability to understand the infringement. d) The mandatory order of a competent authority, issued in the exercise of its functions. e) Error induced by the Administration or by a confusing or illegal administrative provision. f) Voluntary correction by the possible sanctioned party of the act or omission imputed as constituting an administrative infringement, prior to the notification of the imputation of charges referred to in subsection 3) of article 253 of the LPAG and provided that no communication demanding compliance with the obligation had been sent”

numeral 1 of the TUO LPAG, it is not observed that in the present case any of the assumptions that constitute conditions exempting from liability with respect to the infringements analyzed has been configured;

72. With regard to the voluntary declaration of the commission of the infringements and the contribution of the infringer to their clarification, established in article 26°23, literals a) and b) of the REGLAMENTO DE SANCIONES, in accordance with the provisions of article 257°, numeral 2, subsection a) of the TUO DE LA LPAG, it must be stated that INTERFONDOS SAF has acknowledged its responsibility for the infringements incurred expressly and in writing, within the period granted for the submission of defenses, and in a precise, concise, clear and unconditional manner, without ambiguous or contradictory expressions, as well as has contributed to their clarification;

73. Likewise, the provisions of article 26°, literal c) of the REGLAMENTO DE SANCIONES are applicable, since the unforeseen and non-permitted investments of FONDO OPORTUNIDAD and FONDO CUSTODIA were corrected after the SMV's requirement, as well as the excess participation of the PARTÍCIPES in FONDO LATAM was corrected after the SMV's requirement;

74. From the foregoing, it is concluded that INTERFONDOS SAF has incurred the commission of one (1) infringement classified as serious in Annex VII, literal A), numeral 2, subsection 2.8 of the REGLAMENTO DE SANCIONES and one (1) infringement classified as minor in Annex VII, literal A), numeral 3, subsection 3.4 of the REGLAMENTO DE SANCIONES; with respect to which, in application of article 2924 of the REGLAMENTO DE SANCIONES, a sanction corresponding to infringements classified as serious must be imposed on INTERFONDOS SAF;

75. Therefore, a sanction should be imposed on said management company in accordance with the provisions of article 34° of the REGLAMENTO DE SANCIONES, which establishes that serious infringements are sanctioned with a fine of not less than twenty-five (25) and up to fifty (50) UIT or with the suspension of the authorization of operation for up to (20) days; however, to the extent that INTERFONDOS SAF has acknowledged the commission of the infringements detailed above, the provisions of article 26°, literals a),

[23] “Article 26.- MITIGATING CIRCUMSTANCES OF LIABILITY FOR INFRINGEMENTS The following constitute mitigating conditions of liability for infringements: a) Acknowledgment of responsibility by the infringer expressly and in writing, once the administrative sanctioning procedure has been initiated. When the applicable sanction is a fine, it is reduced, taking into account the following: 1. If the acknowledgment of the infringement is presented within the period granted for the submission of defenses, the reduction amount shall be fifty percent (50%). 2. If the acknowledgment is presented after the expiration of the period granted for the submission of defenses and before the expiration of the period granted to formulate allegations to the instruction report, the reduction amount shall be thirty percent (30%). 3. If the acknowledgment is presented after the expiration of the period granted to formulate allegations to the instruction report and up to before the issuance of the sanction resolution, the reduction amount shall be ten percent (10%). The acknowledgment of responsibility with respect to an infringement must be made in a precise, concise, clear, express and unconditional manner, and must not contain ambiguous or contradictory expressions; otherwise, it shall not be understood as an acknowledgment. If defenses are submitted, despite having made an acknowledgment of responsibility, it shall be understood as a non-acknowledgment, and the authority shall proceed to evaluate the defenses. b) Contribution of the offender to the clarification of the infraction. c) The correction made after its requirement or the start of the administrative sanctioning procedure".

[24] "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."

numeral 1), b) and c) of the SANCTIONS REGULATION, so the fine for said infractions must range between 12.5 UIT and 25 UIT; that is, 50% of the range established for serious infractions;

76. Notwithstanding the foregoing, taking into account the sanction criteria analyzed, and in application of the Principle of Reasonableness contemplated in article 248°, numeral 3 of the TUO OF THE LPAG, which states that the sanctions to be applied must be proportional to the non-compliance qualified as an infraction, the circumstances of the commission of the infractions must be considered, that it has not been possible to prove that the analyzed infractions have produced any harm to the participants nor repercussion in the market, that the probability of detection of the infractions was high, that the management company is not a repeat offender in the commission of the infractions and that INTERFONDOS SAF has collaborated in the clarification of the facts and has corrected the infractions after the requirement of the SMV; this Deputy Superintendence considers that, in accordance with the provisions of the last paragraph of article 25° of the SANCTIONS REGULATION, it corresponds to impose on INTERFONDOS SAF a sanction lower than that provided for serious infractions, in accordance with the provisions of article 39° of the SANCTIONS REGULATION;

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

RESOLVES:

Article 1.- Declare that Interfondos S.A. Sociedad Administradora de Fondos has incurred in one (1) infraction qualified as serious as established in Annex VII, literal A), numeral 2, subsection 2.8 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for having made unauthorized investments on behalf of the funds under its administration.

Article 2.- Declare that Interfondos S.A. Sociedad Administradora de Fondos has incurred in one (1) infraction qualified as serious as established in Annex VII, literal A), numeral 3, subsection 3.4 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for not complying with the participation limits in a fund under its administration.

Article 3.- Sanction Interfondos S.A. Sociedad Administradora de Fondos with a fine amounting to three (3) UIT, equivalent to S/12 900.00 (Twelve thousand nine hundred and 00/100 Soles) for the commission of the infractions indicated in articles 1 and 2.

Article 4.- This resolution does not exhaust the administrative route, unless it is consented, and may be challenged before the Deputy Superintendence of Prudential Supervision through the filing of a reconsideration or appeal presented before it, within a period of fifteen (15) business days counted from the day following its notification.

Article 5.- In the event that this resolution is not subject to challenge through a reconsideration or appeal within fifteen (15) business days of notification and becomes final, it must be published on the Institutional Page of the SMV on the Single Digital Platform of the Peruvian State (www.gob.pe/smv), in observance of the provisions of numeral 1, article 7 of the Policy on dissemination of regulatory projects, general legal norms, early agenda and other administrative acts of the SMV, approved by SMV Resolution No. 014-2014-SMV/01 and its amendment, and by the provisions of article 14 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01.

Article 6.- Transcribe this resolution to Interfondos S.A. Sociedad Administradora de Fondos.

Register, communicate and publish.

Signed by: GUTIERREZ OCHOA Omar Dani Reason:

Omar Gutiérrez Ochoa
Deputy Superintendent
Deputy Superintendence of Prudential Supervision