Superintendence Resolution No. 035-2025-SMV/10 — SMV — PE

PERU Ministry of Economy and Finance

SMV
Securities Market Superintendence
"Decade of Equality of Opportunities for Women and Men" "Year of recovery and consolidation of the Peruvian economy" Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml

Superintendence Resolution SMV
No. 035-2025-SMV/10
Lima, June 13, 2025

Subject: The filing of the administrative sanctioning procedure initiated against Scotia Fondos Sociedad Administradora de Fondos Mutuos S.A. is declared, and consequently, said administrative procedure is concluded.

Administered by: Scotia Fondos Sociedad Administradora de Fondos Mutuos S.A.
Subject: Administrative sanctioning procedure
File No.: 2025012953

The Adjunct Superintendent of Prudential Supervision

HAVING SEEN:

The administrative file No. 2025012953, Report No. 698-2025-SMV/10.3 issued by the General Superintendent of Prudential Compliance, as well as the defenses and arguments presented by Scotia Fondos Sociedad Administradora de Fondos Mutuos S.A.; and,

CONSIDERING:

In accordance with Article 1 of Law No. 29782, Law for 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 Securities Market Superintendence (hereinafter, SMV); therefore, any reference to CONASEV in legal norms shall be understood as referring to the SMV;

I. Facts

On January 25, 2024, the COMPLAINANT 1 filed a complaint 2 with the Securities Market Superintendence (SMV) against Scotia Fondos Sociedad Administradora de Fondos Mutuos S.A. (hereinafter, SCOTIA SAFM), in which the COMPLAINANT states that, according to the advice provided, on March 31, 2021, they made an investment in the mutual fund named Scotia Fondo Premium S/. FMIV (hereinafter, FUND) and that throughout the advisory process, no evaluation was carried out to verify if their investment profile was compatible with a more risky investment strategy;

1 Attached to this resolution is an Annex detailing the complete data of the natural persons to whom the designations used in this resolution belong, and also, if applicable, email addresses.
2 File No. 2024003180.

PERU Ministry of Economy and Finance

With Letter No. 455-2024-SMV/10.3, notified to SCOTIA SAFM on February 2, 2024 (hereinafter, the LETTER), SCOTIA SAFM was informed of the complaint filed by the COMPLAINANT, in order for them to submit comments, as well as the corresponding information. In this regard, SCOTIA SAFM was required, among other things, to provide documents supporting the individualized application of policies and procedures for the correct profiling of the client, in determining the risk profile of the COMPLAINANT, in their capacity as a participant of the FUND;
By written submission presented on February 12, 2024, SCOTIA SAFM requested an extension of the deadline granted in the LETTER;
With Letter No. 568-2024-SMV/10.3, notified to SCOTIA SAFM on February 13, 2024, the administrator was granted the requested extension of the deadline;
On February 20, 2024, SCOTIA SAFM responded to the LETTER and in response to said request, SCOTIA SAFM specified that the administrator complied with performing the profiling of the COMPLAINANT and in this sense presented the document named Investor Profile signed by the COMPLAINANT on February 9, 2017 (hereinafter, INVESTOR PROFILE), which, according to what was maintained by SCOTIA SAFM, meets each of the criteria established in the REGULATION. Additionally, SCOTIA SAFM stated that it complied with indicating to the COMPLAINANT that they had a "Moderate" profile and that even the COMPLAINANT declared that the information provided and suggested portfolio were in accordance with their profile;
Through Letter No. 964-2025-SMV/10.3, notified to SCOTIA SAFM on February 19, 2025, SCOTIA SAFM was required to provide additional information (hereinafter, LETTER 1);
By written submission presented on February 25, 2025, SCOTIA SAFM requested an extension of the deadline granted in LETTER 1; which was granted with Letter No. 1111-2025-SMV/10.3, notified to SCOTIA SAFM on February 26, 2025. On March 5, 2025, SCOTIA SAFM responded to LETTER 1;
With Letter No. 1763-2025-SMV/10.3, notified on March 27, 2025 (hereinafter, CHARGES LETTER), an administrative sanctioning procedure was initiated against SCOTIA SAFM; charging them with some facts related to the complaint filed by the COMPLAINANT;
On April 4, 2025, SCOTIA SAFM requested an extension of the deadline granted via the CHARGES LETTER, in order to present the corresponding defenses; which was granted with Letter No. 2009-2025-SMV/10.3, notified on April 10, 2025;
By written submission presented to the SMV on April 16, 2025, SCOTIA SAFM presented defenses against the charges formulated via the CHARGES LETTER;
The charge formulated, as well as the defenses presented by SCOTIA SAFM, have been the subject of evaluation in Report No. 698-2025-SMV/10.3, which has been submitted to the knowledge of this Adjunct Superintendence;

PERU Ministry of Economy and Finance

In observance of the Principle of Due Process contemplated both in Article IV, paragraph 1, numeral 1.2 of the Preliminary Title, as well as in Article 248, numeral 2, of the Single Text of the General Administrative Procedure Law No. 27444, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO OF THE LPAG), via Letter No. 3013-2025-SMV/10, the administrative file to which this resolution refers was made available to SCOTIA SAFM for review;
On June 3, 2025, the administrator presented additional written arguments;

II. Issues to Determine

In the present administrative procedure, in the opinion of this Adjunct Superintendence, it corresponds to determine the following:

a. Whether or not an infringement established in Annex VII, numeral 2, subsection 2.9 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), was incurred, by failing to comply with Article 86-A of the Regulation of Mutual Funds for Investment in Securities and their Administrators, approved by CONASEV Resolution No. 068-2010-EF/94.01.1 and its modifications (hereinafter, REGULATION);

b. Whether or not a sanction should be imposed on SCOTIA SAFM;

III. Analysis

3.1. Of the applicable regulations

Article 86-A of the REGULATION establishes the following:

"Article 86-A.- ADVISORY SERVICES
Advisory services consist of determining the risk profile of the potential participant as well as the subsequent individualized recommendation to them, with the aim that their decision to invest or divest in a mutual fund is informed. Advisory services are provided to potential investors at the time of subscription, transfer, and assignment of shares.
For the purposes of the aforementioned profiling, the promoter must request from the potential investor, at least, information regarding their financial situation, knowledge and experience in investments, investment horizon, and risk tolerance.
The potential investor is responsible for the veracity of the information they provide for profiling purposes.
The administrator society, the placement agent, or the distributor must have policies and procedures that ensure the correct profiling of the client. These policies and procedures, as well as the support for the individualized application of the latter, must be available to the SMV when it so requires.
The advisory activity comprises at least the following:
a) Determination of the risk profile of the potential participant. b) Explanation of the structure of the offered mutual fund. c) Explanation of the risks related to the offered mutual fund, as well as its historical performance, if applicable.

d) Information on the relationship between the risk profile of the potential participant and the characteristics of the offered mutual fund, explaining why it fits their profile.
In the event that the potential participant, after receiving advice, decides to invest in a mutual fund that does not fit their risk profile, the administrator society, the placement agent, or the distributor must inform them of this situation and the risks it implies. If, after this, the potential participant maintains their decision to invest in a fund that does not fit their profile, a record of such situation must be obtained. The obligation stated in this article is exempted in cases where the potential investor wishes to acquire shares of mutual funds of very short-term debt instruments, or if it concerns any of the persons included in Annex 1 of the Regulation of the Institutional Investor Market.

3.2. Of the charge formulated

In this regard, via the CHARGES LETTER, it was decided to initiate an administrative sanctioning procedure against SCOTIA SAFM, for not having proven that they complied with Article 86-A of the REGULATION in the subscription of shares of the FUND by the COMPLAINANT, insofar as they did not support that the risk profile of the COMPLAINANT adjusted to the risk profile of the FUND, either in their "Conservative" or "Moderate" profile, given that the INVESTOR PROFILE document presented by SCOTIA SAFM is one that, according to the definitions established in said document, would only support the "Very Conservative" profile of the COMPLAINANT and not the "Moderate" risk profile, determined in the INVESTOR PROFILE;
This is because the definition of the "Moderate" risk profile, established in the INVESTOR PROFILE, is not congruent with the result of the answers provided by the COMPLAINANT in the INVESTOR PROFILE questionnaire, given that in the definition of the "Moderate" profile it is specified as one of its characteristics that the client is willing to tolerate moderate volatility in short periods, a characteristic that would not be found in the answers provided by the COMPLAINANT in the questionnaire that forms part of the INVESTOR PROFILE, considering that regarding the willingness to take risks recorded in the INVESTOR PROFILE, the COMPLAINANT stated that they would not tolerate drops in the short term;
Consequently, SCOTIA SAFM was charged with having incurred the infringement classified as serious typified in Annex VII, numeral 2, subsection 2.9 of the SANCTIONS REGULATION, which establishes as a serious nature infringement: "Not complying with the obligations and functions that correspond to them in accordance with what is established in the fund participation regulation, or simplified prospectus of the fund or in the contracts celebrated on behalf of the fund with participants and third parties or those established in the regulations";

3.3. Of the defenses presented

In this regard, SCOTIA SAFM states that the alleged infringing conduct dates back to 2017, when the INVESTOR PROFILE was signed, which would have been evaluated inadequately. Therefore, according to the administrator, all acts that have occurred after that date and that have as their origin the INVESTOR PROFILE do not constitute and could not constitute an autonomous infringing conduct, but only the permanent effects of said original conduct, so that, according to SCOTIA SAFM, it would qualify as an instantaneous infringement with permanent effects;

PERU Ministry of Economy and Finance

Being so, the administrator states that it corresponds to declare the prescription of the faculty to determine the existence of the alleged infringement imputed to SCOTIA SAFM, in view that the infringing conduct, according to the administrator, would have occurred on February 9, 2017, the date on which the Investor Profile was signed;
Also, SCOTIA SAFM maintains that the COMPLAINANT had the status of institutional investor, which is accredited by virtue of the amount of investments made by the COMPLAINANT since 2017. Given that, according to SCOTIA SAFM, the investments acquired by the COMPLAINANT within the administrator allow verifying that, as of March 31, 2021, the COMPLAINANT had the character of Institutional Investor, with the administrator society being exempted from providing profiling and complying with the duty of advice as regulated in Article 86-A of the REGULATION;
In that context, SCOTIA SAFM indicates that according to the subscriptions made by the COMPLAINANT in SCOTIA SAFM, from 2017 to March 31, 2021, the COMPLAINANT summed a net worth greater than S/ 4,000,000.00 in soles in securities, with which, according to the administrator society, they qualified them as a natural person institutional investor according to the Regulation of Institutional Investors, Annex 1, numeral 6; a defense they reiterate in their additional written arguments;
On the other hand, SCOTIA SAFM maintains that the INVESTOR PROFILE was signed when Article 86-A of the REGULATION was not in force. Therefore, according to the administrator, it is legally impossible to demand compliance with Article 86-A of the REGULATION at the time of signing the INVESTOR PROFILE, due to the fact that said norm was not in force;
Additionally, SCOTIA SAFM states that it is necessary for the facts imputed to the administrator society to meet the requirement of subsumption within the legal norm that is intended to be applied. However, according to SCOTIA SAFM, the CHARGES LETTER accuses the administrator society of not fulfilling the advisory obligation contemplated in Article 86-A of the REGULATION, but intends to sanction them for the infringement consisting of not complying with the Fund Participation Regulation. In this sense, it points out that there is no relationship between the imputed fact and the norm sought to be applied, so that, according to the administrator society, there is a violation of the principles of typicity and due process of Sanctioning Administrative Law;
Likewise, the administrator society states that it complied with technically evaluating the INVESTOR PROFILE of the COMPLAINANT in accordance with the parameters indicated in the INVESTOR PROFILE itself and in accordance with Guide E. 0194 of 2017. However, according to the administrator society, the CHARGES LETTER takes a single answer to consider that the COMPLAINANT would have had to be classified with a different risk profile, without valuing the other three (3) answers that clearly determine that the risk profile of the COMPLAINANT was Moderate;
In their additional written arguments, the administrator indicates that as exposed in the instructor body's report, to determine the risk profile of an investor, only the answer to one question should not be considered, but the set of clarifications provided by the potential investor as part of the risk profiling process. Likewise, they state that what is exposed in said report regarding the investor profile being signed by the COMPLAINANT must be considered;

3.4. Of the evaluation of the defenses

Regarding the arguments referred to that the alleged infringement imputed would be prescribed, as well as those referred to that it is not possible to demand compliance with Article 86-A of the REGULATION given that it was not in force on the date of signing the INVESTOR PROFILE, it must be specified that as detailed in the CHARGES LETTER, the imputation is based on the framework of facts occurring at the subscription of the FUND shares by the COMPLAINANT, given that the requirement of determining the risk profile of the COMPLAINANT refers to the fact that said risk profile had to prove that it adjusted to the risk profile of the FUND and not to the date of signing the INVESTOR PROFILE;
Being so, since Article 86-A of the REGULATION entered into force on March 1, 2019, it is applicable on the date of subscription of the FUND shares by the COMPLAINANT, given that said subscription was made on March 31, 2021;
Likewise, it is worth specifying additionally that, in response to the request made to SCOTIA SAFM regarding the documents that support the individualized application of policies and procedures for the correct profiling of the client, in determining the risk profile of the COMPLAINANT, in their capacity as a participant of the FUND, the administrator society stated that it complied with providing the COMPLAINANT with adequate advice in accordance with what is established in Article 86-A of the REGULATION and prior to the COMPLAINANT's subscription in the FUND and presented the INVESTOR PROFILE document;
In that context, it must be noted that considering that the facts that were observed in the CHARGES LETTER are framed within the obligations that had to be fulfilled on the date of subscription of the FUND, that is, March 2021, on the date of imputation of charges, the alleged infringement was not prescribed;
On the other hand, regarding the arguments referred to the quality of institutional investor of the COMPLAINANT, it is necessary to point out that SCOTIA SAFM has not proven in the present procedure that, as of March 30, 2021, the day prior to the subscription of FUND shares, and therefore as of March 31, 2021, the date of the subscription of the FUND shares, the COMPLAINANT had the quality of institutional investor, that is, that it had been verified that they had a net worth greater than four million fifty-six thousand nine hundred forty-eight soles (S/ 4,056,948) and a portfolio of investments in securities equal to or greater than two million twenty-eight thousand four hundred seventy-four soles (S/ 2,028,474), figures updated as of March 30, 2021;

3 According to Annex 1, numeral 6 of the Regulation of the Institutional Investor Market, approved by SMV Resolution No. 021-2013-SMV/01, with monetary figures updated in accordance with the fifth complementary and final provision of said regulation.

PERU Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
“Decenio de la Igualdad de Oportunidades para Mujeres y Hombres” "Año de la recuperación y consolidación de la economía peruana" 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 each of the mutual funds in which the COMPLAINANT invested between March 20, 2017, and March 31, 2021 4, the information provided by the same regarding the redemptions and liquidations of shares of the Scotia Fondo Rendimiento Mejorados Soles I 5 and SF Rendimiento Binario Soles IV 6 funds, as well as the information on share values sent daily, as of March 30, 2021, the COMPLAINANT only had investments in shares of the SF Depósito Disponible S/ mutual fund for an amount of S/ 449,582.61, an amount lower than the minimum amount of S/ 2,028,474 required on that date as a securities portfolio to consider a natural person as an institutional investor;
34. Likewise, even if the investment in shares of the FUND made on March 31, 2021, for the amount of S/ 901,000.00 were added, the amount invested in shares on that date would amount to S/ 1,350,592.67, an amount that is also lower than the minimum amount required as a securities portfolio;
35. Additionally, it is necessary to point out that the sum of the investments made by the COMPLAINANT from March 20, 2017, to March 31, 2021, could not determine the quality of institutional investor of the COMPLAINANT as SCOTIA SAFM claims, given that, during said period, the COMPLAINANT redeemed shares of mutual funds in which it had invested, thereby ceasing to possess securities and obtaining money, thereby subscribing to shares of other mutual funds, which were subsequently also redeemed. In such a way that, prior to the subscription of shares in the FUND, it was not verified that the COMPLAINANT had a securities portfolio in the minimum amount required by regulations to be qualified as an institutional investor;
36. It should be added that, even in the supposition that it had been verified that the COMPLAINANT, as of March 31, 2021, had had equity superior to S/ 4,056,948 due to the redemption of shares, which has not been accredited, this is not sufficient to be qualified as an institutional investor given that it must also have a securities portfolio in the minimum amount indicated by the regulations;
37. Therefore, SCOTIA SAFM was not exempt from providing profiling and complying with the duty of advice as regulated in article 86-A of the REGULATIONS;
38. Likewise, regarding the fact that the acts attributed to the administrator society would be violating the principles of typicity and due process, insofar as there would be no relationship between the imputed fact and the norm that is sought to be applied, it must be specified that in accordance with what is stated in the NOTICE OF CHARGES, the charge imputed refers to the alleged non-compliance with article 86-A of the REGULATIONS and not the Participation Regulation of the FUND, so that said conduct is subsumed in the infraction typified in Annex VII, numeral 2, item 2.9 of the SANCTIONS REGULATIONS, indicated in the NOTICE OF CHARGES, that is, “Not comply with the obligations and functions that correspond to it in accordance with what is established in the fund participation regulation, or simplified prospectus of the fund or in the contracts that on behalf of the fund are celebrated with participants and with third parties or that are established in the regulations.” (Underline added). Therefore, the charge

4 By writing of February 20, 2024 - File No. 2024003180.
5 By File No. 2018034551.
6 By File No. 2020046380.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
“Decenio de la Igualdad de Oportunidades para Mujeres y Hombres” "Año de la recuperación y consolidación de la economía peruana" 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 imputed does not violate the principle of typicity and due process argued by the administrator society;
39. Notwithstanding and without prejudice to what is stated previously, it must be pointed out that in the description of the Very Conservative Profile indicated in the INVESTOR PROFILE, it is indicated as one of its characteristics that little or no fluctuation or temporary drop in the investment is tolerated, which is compatible with one of the answers provided by the COMPLAINANT, according to the content of the INVESTOR PROFILE. However, this information, considered individually, could not necessarily determine the risk profile of the investor, in this case of the COMPLAINANT. This is because the additional information provided by the COMPLAINANT contained also in the INVESTOR PROFILE, relative to the (i) investment horizon, (ii) market knowledge, and (iii) economic capacity, in which it was indicated, respectively, (i) that it would need what was invested for 3 to 5 years, which could be congruent with a tolerance of the investor to accept fluctuations in the share value in that long horizon; (ii) that it understands the topic quite well, and (iii) that the amount to be invested in mutual funds is not the only source of resources available, also corresponded to be valued. The administrator society has indicated that this valuation was performed, and as a consequence, it determined that the risk profile of the COMPLAINANT qualifies in a “Moderate” risk profile, which is observed to have been informed to the COMPLAINANT taking into account that the INVESTOR PROFILE is signed by the same;
40. Additionally, it must be taken into account that, according to the information provided by the administrator society, on the date of the investment in the FUND by the COMPLAINANT, the FUND had a conservative risk profile, that is, like the other mutual funds managed by SCOTIA SAFM in which the COMPLAINANT had been investing previously to its investment in the FUND;
41. Being so, and considering that the COMPLAINANT has not accredited that it informed the administrator society of the variation of the information provided in the INVESTOR PROFILE that would lead to a new evaluation of the risk profile of the COMPLAINANT by SCOTIA SAFM, there are not sufficient elements to allow accrediting that SCOTIA SAFM did not comply with what is established in article 86-A of the REGULATIONS in relation to the subscription of shares of the FUND, by the COMPLAINANT, reason for which charges were imputed to SCOTIA SAFM and that gave rise to the present procedure;
42. For the reasons exposed in the preceding considerations, it corresponds to lift the charge imputed to the referred administrator society through the present sanctioning procedure and to dispose of the filing of the corresponding administrative file for the present procedure;
Being in accordance with what is provided by article 32 numeral 16 of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree Nº 216-2011-EF.
RESOLVES:
Article 1º.- Declare that Scotia Fondos Sociedad Administradora de Fondos Mutuos S.A. has not incurred a serious infraction typified in Annex VII numeral 2 item 2.9 of the Sanctions Regulation, approved approved by SMV Resolution N° 035-2018-SMV/01, in accordance with what is stated in the

PERÚ Ministry of Economy and Finance

Lineage