Superintendence Resolution No. 014-2026-SMV/10

PERÚ Ministerio de Economía y Finanzas

Pursuant to Article 1 of Law No. 29782, Law on the Strengthening of the Supervision of the Securities Market, the name of the National Commission for the Supervision of Companies and Securities (CONASEV) is replaced by that of the Superintendency of the Securities Market (SMV); therefore, any reference to CONASEV in legal norms shall be understood as a reference to the SMV;
I. BACKGROUND
By Superintendence Adjunct Resolution SMV No. 005-2026-SMV/10 of January 20, 2026 (hereinafter, RESOLUTION), DIVISO SAF was sanctioned with a fine of 20.6715 UIT equivalent to S/ 109,597.43 (one hundred nine thousand five hundred ninety-seven and 43/100 soles), for having committed eight (8) minor infractions typified in Annex I, numeral 3, item 3.1 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-

PERÚ Ministerio de Economía y Finanzas

1 Although the written submission presented by DIVISO SAF has the subject “Appeal of Superintendence Adjunct Resolution SMV No. 005-2026-SMV/10”, it is necessary to specify that, pursuant to what is provided in Article 14 of the SANCTIONS REGULATION, in administrative sanctioning procedures for non-compliance with norms relating to the timeliness of submission of periodic or eventual information, the Adjunct Superintendency of Prudential Supervision acts as the sole administrative instance, so its pronouncement exhausts the administrative route. Consequently, in this type of sanctioning procedures, the appeal is not admissible, and only the filing of the reconsideration appeal is viable, according to what is stated in the aforementioned regulation, so it proceeds to qualify it as a reconsideration, pursuant to Article 223 of the TUO LPAG. 2 “Article 218. Administrative appeals
218.1 The administrative appeals are:
a) Reconsideration appeal b) Appeal
Only in the event that a law or legislative decree expressly establishes, is the filing of the administrative review appeal admissible.
218.2 The term for filing appeals is fifteen (15) peremptory days, and they must be resolved within thirty (30) days.”

PERÚ Ministerio de Economía y Finanzas

SMV
Superintendencia del Mercado de Valores
“Decenio de la Igualdad de Oportunidades para Mujeres y Hombres” “Año de la Esperanza y el Fortalecimiento de la Democracia” Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría de la(s) firma(s) pueden ser verificadas en https://apps.firmaperu.gob.pe/web/validador.xhtml impugnation and must be supported by new evidence. However, in the case of administrative acts issued by bodies that constitute a single instance, new evidence is not required;
III. ON THE ARGUMENTS PRESENTED BY DIVISO SAF
10. DIVISO SAF alleges that the sanction imposed by the RESOLUTION would cause a violation of the principle of non-confiscation contained in the Political Constitution of Peru3. Principle that, according to the management company, is linked to the principles of reasonableness and proportionality contained in the TUO LPAG and by special norms that regulate sanctioning procedures;
11. In this way, DIVISO SAF argues that the company is in a situation of patrimonial deficit, so the imposition of a disproportionate and unreasonable fine amounting to 20.6715 UIT results in a violation of the principle of non-confiscation. It specifies that it reported to the market, the annual income corresponding to the last fiscal year of 2025, so, according to the company, the imposition of such fine would cause an impact on its assets (property right) and could not be assumed without affecting the functioning of its business activities;
12. In view of this, DIVISO SAF requests that, the new sanction that is considered, within the analysis of proportionality and reasonableness, does not violate the aforementioned principle of non-confiscation;
13. Additionally, DIVISO SAF maintains that with what has been exposed it has accredited a concrete impact on the due process established in Article IV, numeral 1.2 of the Preliminary Title of the TUO LPAG, since the RESOLUTION would not have been adequately motivated and founded in law, as expressly established in Article 3, numeral 4 of the TUO LPAG. In this way, it points out that having accredited the existence of a vice in the RESOLUTION that affects its efficacy, it corresponds to leave said resolution without effect and issue another, observing the applicable special regulation;
IV. EVALUATION OF THE ARGUMENTS PRESENTED
14. According to the arguments presented with the filed appeal, DIVISO SAF does not question the commission of the eight (08) infractions in which it has incurred, which were determined by the RESOLUTION, but its arguments of challenge are directed to question the fine imposed with said resolution, since, according to the management company, it would attack the principle of reasonableness and the principle of non-confiscation;
15. Regarding the principle of non-confiscation, it is necessary to point out that it is a principle regulated in Article 74 of the Political Constitution of Peru, which states “Taxes are created, modified or repealed or an exemption is established, exclusively by law or legislative decree in case of delegation of powers, except for tariffs and fees, which are regulated by supreme law. (…) No tax may have a confiscatory character. (…)”. (Emphasis added);
16. With regard to this, according to Jorge Danos4 “According to the constitutional jurisprudence glossed, the function played by the Principle of non-confiscation in our constitutional order is to constitute a material limit to the activity of the legislator when exercising the tax power. This limiting function of legislative activity is much greater because, as is evident, the constitutional tax principle object of this study is expressly enunciated by the constitutional text in the form of a prohibition”;
17. Likewise, Cesar Landa5 states: “On the contrary, as the Constitutional Tribunal has pointed out, the principle of non-confiscation informs and limits the exercise of the state's tax power, guaranteeing that the tax law does not affect irrationally and disproportionately the legitimate patrimonial sphere of persons”;
18. Taking this into account, in the scope of the State's sanctioning power, the principle of non-confiscation would have the purpose of preventing said power from being exercised arbitrarily or disproportionately, that is, preventing administrative sanctions imposed, such as fines, from being so high that they deprive the offender of all or a substantial part of their income, which would acquire a confiscatory character;
19. Taking into account that the principle of confiscation seeks to avoid disproportionate or irrational administrative sanctions, it must be pointed out that this is materialized through the requirement that administrative sanctions be imposed based on the principle of reasonableness established in the TUO LPAG, which guarantees that sanctions bear due proportion to the committed offense, in order not to incur in confiscation, as well as it is derived from the arguments presented by DIVISO SAF6;
20. Regarding the principle of reasonableness, Alexandra Molina Dimitrijevich7 states: “c. Reasonableness: This refers to the fact that decisions, when they create obligations, qualify infractions, impose sanctions or establish restrictions on those subject to administration. They must adapt within the limits of the attributed faculty, maintaining due proportion between means to be employed and public ends to be protected so that they respond to what is strictly necessary for the satisfaction of their mission;
21. In Dromi's opinion, for an act to be reasonable there must be a logical and proportional relationship between the consequence and the antecedents, between the object and the end, and public agents must reasonably evaluate the factual circumstances and the applicable law, as well as dispose of measures proportionally adequate to the end pursued by the legal order, understanding reasonableness as what is just, proportional, equitable, in opposition to what is unreasonable, arbitrary, unjust. Dromi gives as an example of contravention of this principle, the circumstance in which the administrative body does not adhere to resolving the facts accredited in the file or is based on non-existent evidence”;
22. For the above reasons, the principle of reasonableness, which is one of the principles governing the sanctioning power of the administrative authority, seeks that there be a correlation between the committed offense and the applicable sanction; that is, proportionality in the sanctions applied. For this, it requires that the graduation criteria regulated in the TUO LPAG and in the specific applicable norms be observed, so that the imposed sanctions are not excessive, but proportionally adequate;
23. Thus, it must be pointed out that, according to considerations 3 and 4 of the RESOLUTION, the infractions in which DIVISO SAF has incurred are infractions typified as minor referred to the non-compliance with the deadline for the submission of periodic information, so for the evaluation or determination of the sanction for said infractions, the “Gradual Regime of Sanctions for Late Submission of Financial Information, Annual Report and Material Events”, approved by SMV Resolution No. 007-2023-SMV/01 of September 4, 2023 (hereinafter, GRADUAL REGIME), in force as of January 1, 2024,8 must be applied, as developed in considerations 20 to 48 of the RESOLUTION;
24. In this sense, it must be indicated that the regulatory framework and the evaluation of the sanction that the GRADUAL REGIME considers guarantees the development of a reasonable and fair procedure, insofar as the sanction is based on an objective cause, guaranteeing the exercise of the right to defense and the use of proportionality criteria for the graduation and establishment of the sanction; it must be specified that the GRADUAL REGIME applies only to cases of infractions to the timeliness norms and whose application must be carried out with respect to each sanctionable infraction and having as an individual limit of fine for each of them twenty-five (25) UIT, insofar as they are infractions of a minor nature, pursuant to Article 4 of the GRADUAL REGIME 9 and the SANCTIONS REGULATION;
25. Likewise, it must be specified that the application of the GRADUAL REGIME observes the principle of proportionality established in Article 248, numeral 310 of the TUO LPAG, since it allows to determine in a predictable manner for the regulated party, the sanctions to be imposed on securities issuers and on persons registered in the RPMV for non-compliance with the deadlines for the submission of financial and eventual information to which they are obligated by the norms. In this way, in order to determine the sanction that corresponds to said infractions, according to Article 5 of the GRADUAL REGIME, the evaluation criteria established in Article 344 of the Single Consolidated Text of the Securities Market Law, in Article 248, numeral 3, of the TUO LPAG, in Article 25 of the SANCTIONS REGULATION, as well as in Article 6 of the GRADUAL REGIME, must be taken into account, whose observance is mandatory;
26. According to this, the evaluation of the sanction must consider the following sanction or evaluation criteria: a) The gravity of the damage to the public interest and/or protected legal good; b) The economic harm caused and the repercussion in the market; c) Sanctioning antecedents; 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 non-existence of intent in the conduct of the offender; and, h) The probability of detection of the infraction, which were evaluated by the RESOLUTION;
27. Regarding the gravity of the damage to the public interest and/or protected legal good, the RESOLUTION states that regarding the submission of periodic or eventual information, any non-compliance with the regulations on its timely presentation, that is, the non-observance of the deadlines established to present said information, affects the transparency of the securities market, insofar as this safeguards the right of investors (actual and potential) and the general public to access said information in a timely manner in order to adopt investment decisions or carry out a certain evaluation; as well as it affects the SMV in the implementation of its supervision and control activities that seek to protect the integrity of the market;
28. Therefore, according to the RESOLUTION, DIVISO SAF affected the protected legal good referred to the transparency of the market, since it submitted late in eight (8) opportunities periodic information regarding the funds it manages and regarding itself; with delays from 07 to 25 days with respect to the deadline;
29. It is worth highlighting that the affected legal good is that of the transparency of the securities market, a fundamental pillar for its development and basis for its proper functioning. In this sense, DIVISO SAF, as an authorized entity that participates in a specialized market, has the duty to act diligently as a fund management company in order to submit and disseminate periodic or eventual information in a timely manner, which allows reducing information asymmetries, protecting investors, limiting incentives for opportunistic conduct, protecting the confidence of investors or potential investors in the market, adopting investment and disinvestment decisions in a timely manner considering the risks involved, and applying prudential measures by the regulator in a timely manner, among others;
30. With regard to the economic harm caused and its repercussion in the market, the RESOLUTION states that it has not been evidenced that

PERÚ Ministerio de Economía y Finanzas

a) El beneficio ilícito resultante por la comisión de la infracción; b) La probabilidad de detección de la infracción; c) La gravedad del daño al interés público y/o bien jurídico protegido; d) EI perjuicio económico causado; e) La reincidencia, por la comisión de la misma infracción dentro del plazo de un (1) año desde que quedó firme la resolución que sancionó la primera infracción. f) Las circunstancias de la comisión de la infracción; y g) La existencia o no de intencionalidad en la conducta del infractor.

PERÚ Ministerio de Economía y Finanzas

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