PERU 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"

Superintendent Resolution No. 019-2024-SMV/02

Lima, 4 March 2024

The Superintendent of the Securities Market

WHEREAS:

File No. 2022040292 and Report No. 229-2024-SMV/06 issued by the Legal Advisory Office;

CONSIDERING:

That, by Deputy Superintendent Resolution SMV No. 051-2023-SMV/10, hereinafter, RESOLUTION, the Deputy Superintendency of Prudential Supervision, hereinafter SASP, resolved to sanction Autoplan Empresa Administradora de Fondos Colectivos S.A. (AUTOPLAN) with a fine of two (02) UIT for having incurred in one (01) infraction of a minor nature classified in Annex XIII, numeral 3, subparagraph 3.7 of the Sanctions Regulation approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), for failing to send to a Complainant the account statements corresponding to the collective fund management contracts signed.

That, by brief presented on 18 July 2023, AUTOPLAN filed an appeal against THE RESOLUTION;

That, by Report No. 229-2024-SMV/06 of 20 February 2024, hereinafter, the REPORT, the Legal Advisory Office issued an opinion on the appeal filed by AUTOPLAN. Said report was brought to the attention of AUTOPLAN by Official Letter No. 712-2024-SMV/14 of 23 February 2024, so that, if it deems appropriate, it may submit its arguments, which to date have not been submitted;

I. ARGUMENTS OF THE APPEAL

That, below, the arguments contained in the appeal filed by AUTOPLAN are succinctly set forth;

A. It states that it acknowledges responsibility regarding the charge imputed in the present administrative sanctioning procedure; consequently, it requests the application of the mitigating circumstance of literal a) of article 26 of the SANCTIONS REGULATION1 .

[1] Article 26.- MITIGATING CIRCUMSTANCES OF RESPONSIBILITY The following constitute mitigating circumstances of responsibility for infractions: a) Acknowledgment of responsibility by the offender expressly and in writing, once the administrative sanctioning procedure has begun. When the applicable sanction is a fine, it is reduced, taking into account the following: 1. If the acknowledgment of the infraction is presented within the term 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 term granted for the submission of defenses and before the expiration of the term granted to formulate arguments to the instruction report, the reduction amount shall be thirty percent (30%).

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B. Additionally, it reiterates that it reached an out-of-court agreement with a COMPLAINANT, through which its contracts would be resolved and it would proceed with the return of all contributions made.

II. ANALYSIS OF THE ADMISSIBILITY OF THE APPEAL

That, from the evaluation carried out, it has been verified that the appeal filed by AUTOPLAN complies with the requirements established in articles 124, 220 and 221 of the Single Ordered Text of Law No. 27444, General Administrative Procedure Law (hereinafter, TUO LPAG);

That, in that sense, in the analyzed case it is verified that the filing of the appeal by AUTOPLAN was made within the legal term, complying with the provisions of article 218 of the TUO LPAG;

III. EVALUATION OF THE ARGUMENTS SET FORTH BY AUTOPLAN

A. AUTOPLAN states that the mitigating circumstance provided in literal a) of article 26 of the SANCTIONS REGULATION previously mentioned should be applied.

In this regard, it must be specified that from a reading of the RESOLUTION, it is verified that said acknowledgment constitutes a new argument since it was not considered in the evaluation of the determination of administrative responsibility, because AUTOPLAN has only declared in its appeal the acknowledgment of responsibility, as recorded in the following CONSIDERATIONS of the RESOLUTION, which are cited:

"47. In accordance with the analysis, it is not observed that in the present case any of the assumptions that constitute mitigating circumstances of responsibility have been configured. Regarding the voluntary declaration of the commission of the infractions (article 257, numeral 2 of the TUO of the LPAG) and the contribution of the offender for its clarification, established in article 26, literals a) and b) of the Sanctions Regulation, it must be indicated that Autoplan EAFC did not present defenses and in its arguments it only refers to the alleged presentation of the account statements and the Out-of-Court Transaction, therefore, it has not expressly acknowledged the commission of the infraction subject to evaluation, nor has it contributed to its clarification;

48. In this sense, it is not observed that in the present case any of the assumptions that constitute mitigating circumstances of responsibility indicated in article 26 of the SANCTIONS REGULATION have been configured;"

Having indicated the above, it corresponds to evaluate the admissibility of the mitigating circumstance alleged by AUTOPLAN, which is provided in literal a) of article 26 of the SANCTIONS REGULATION. In this regard, it should be noted that the voluntary declaration of acknowledgment of the commission of the infraction is a mitigating circumstance of responsibility, therefore, in

[3] If the acknowledgment is submitted after the expiration of the term granted to submit arguments 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 regarding an infraction must be made precisely, concisely, clearly, expressly and unconditionally, 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.”

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those cases in which, after evaluating the facts, the applicable sanction is a fine, it shall be appropriate to evaluate the reduction thereof.

However, said mitigating factor is applicable only in the first instance; consequently, it is not appropriate to make a reduction of the fine imposed as an administrative sanction.

B. AUTOPLAN also reiterates that it reached an out-of-court agreement with a COMPLAINANT. In this regard, it must be specified that from a review of the RESOLUTION, it is verified that said argument was evaluated prior to the determination of administrative responsibility as stated in recitals 28, 29 and 30 of the RESOLUTION

C. That, in accordance with what has been developed and analyzed, it is considered that Autoplan has not provided sufficient evidence to rebut the decision of the Deputy Superintendency of Prudential Supervision, SASP, which is justified and duly motivated in the development of the Resolution, because it is noted therefrom that the grounds leading to the conclusion that Autoplan incurred in the breach imputed as a charge in this administrative sanctioning procedure have been validated, a fact that has also been expressly acknowledged by the administered party; and,

In accordance with the provisions of numeral 26 of article 12 of the Regulation of Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF;

RESOLVES:

Article 1.- Declare unfounded the appeal filed by Autoplan Empresa Administradora de Fondos Colectivos S.A. against Resolution of Deputy Superintendency SMV No. 051-2023-SMV/10.

Article 2.- Consider the administrative route exhausted.

Article 3.- Transcribe this resolution to Autoplan Empresa Administradora de Fondos Colectivos S.A.

Article 4.- Order the dissemination of this resolution on the Institutional Page of the Superintendency of the Securities Market on the Single Digital Platform of the Peruvian State (www.gob.pe/smv).

Lorena Masías Quiroga
Superintendent of the Securities Market

Electronic document digitally signed within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulation and amendments.
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PERU Ministry of Economy and Finance
SMV
Superintendency of the Market of 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"

Electronic document digitally signed within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulation and amendments.
The integrity of the document and the authorship of the( s) fi rma( s) can be verified at https://apps.fi rmaperu.gob.pe/web/validador.xhtml