Superintendent Resolution No. 025-2025-SMV/02

PERU Ministry of Economy and Finance
SMV
Securities Market
Superintendent Resolution
No. 025-2025-SMV/02
Lima, March 10, 2025

The Superintendent of the Securities Market

SEEN:

File No. 2023047553 and Report No. 1788-2024-SMV/06, from the Legal Advisory Office, through which an opinion was issued on the appeal filed by Autoplan Empresa Administradora de Fondos Colectivos S.A. (hereinafter, AUTOPLAN) against Superintendent Adjunct Resolution SMV No. 044-2024-SMV/10 (hereinafter, the RESOLUTION);

CONSIDERING:

That, through the RESOLUTION, notified on July 31, 2024, the Superintendent Adjunct of Prudential Supervision (hereinafter, SASP), resolved as follows:

(i) AUTOPLAN committed one (01) infraction of a minor nature typified in Annex XIII, numeral 3, clause 3.51 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), for failing to meet the deadline to notify Mr. Giancarlo Tárraga Romero (hereinafter, the ASSOCIATE) of the date of return of his contributions after the conclusion of the group, regarding the Collective Fund Administration Contract of Autoplan EAFC S.A. Certificate of Purchase Modalidad toplanadelante, CONTRACT 1);

(ii) AUTOPLAN committed one (01) infraction of a serious nature typified in Annex XIII, numeral 2, clause 2.162 of the SANCTIONS REGULATION, for failing to meet the deadline to return the contributions corresponding to CONTRACT 1 in favor of the ASSOCIATE, after the conclusion of the group, in the liquidation stage;

(iii) AUTOPLAN committed one (01) infraction of a serious nature typified in Annex XIII, numeral 2, clause 2.16 of the SANCTIONS REGULATION, for failing to meet the deadline to return the contributions corresponding to the Collective Fund Administration Contract of Autoplan EAFC S.A. Certificate of Purchase Modalidad toplanadelante, CONTRACT 2) in favor of the ASSOCIATE, as a consequence of being awarded in the quarterly draw held in June 2021;

1 3.5 Not notify associates with resolved contracts, within the deadline established by the SMV, of the date of the return of their contributions.
2 2.16 Not comply with the provisions of the collective fund administration contract celebrated with the associate

3 2.1 Not present, deny or delay the delivery of books, documents and other information requested by the SMV during inspections or preliminary inquiries or any other auditing activity, not grant the facilities that the SMV requests in the execution of supervision and control actions it disposes; as well as present documentation, with the purpose of delaying the procedure, or not make available to the SMV the documentation to which they are subject

4 AUTOPLAN , however, does not correspond with the information contained in the file of the sanctioning procedure.

5 Article 26.- Mitigating conditions of responsibility for infractions The following constitute mitigating conditions of responsibility for infractions:
a) Express and written recognition of responsibility by the offender, 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 recognition of the infraction is presented within the deadline granted for the presentation of defenses, the reduction amount will be fifty percent (50%).
2. If the recognition is presented after the expiration of the deadline granted for the presentation of defenses and before the expiration of the deadline granted to formulate arguments regarding the instruction report, the reduction amount will be thirty percent (30%).
3. If the recognition is presented after the expiration of the deadline granted to formulate arguments regarding the instruction report and until before the issuance of the sanction resolution, the reduction amount will be ten percent (10%).

6 Article 26.- Mitigating conditions of responsibility for infractions

7 AUTOPLAN does not specify the numeral and/or clause of the article it cites. The reference of this article in the Single Ordered Text of the General Administrative Procedure Law Law No. 27444, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO LPAG) is to article 257.

(iv) AUTOPLAN committed one (01) infraction of a serious nature typified in Annex I, numeral 2, clause 2.13 of the SANCTIONS REGULATION, for failing to present the account statements of CONTRACT 1, despite the fact that this information was requested by the SMV on more than one occasion;

(v) Sanction AUTOPLAN with seven (07) UIT (Tax Unit) in effect at the time of effective payment of the fine, for the commission of the infractions referred to in numerals (i), (ii), (iii) and (iv);

That, through a document presented on August 05, 2024, AUTOPLAN filed an appeal against the RESOLUTION;

That, through Report No. 1788-2024-SMV/06 of December 30, 2024 (hereinafter, the REPORT), the Legal Advisory Office issued an opinion on the appeal filed by AUTOPLAN, which was brought to the knowledge of AUTOPLAN through Office No. 036-2025-SMV/14 of January 03, 2025, so that, if it considers it appropriate, it may formulate its arguments; however, AUTOPLAN has not formulated arguments;

I. ARGUMENTS OF THE APPEAL

That, below, the arguments raised in the said administrative appeal are pointed out, specifically:

That, AUTOPLAN reiterates that through a document of defenses it recognized its responsibility regarding the four (04) charges imputed in the RESOLUTION, so it corresponded to apply the mitigating factors provided for in letters a) and b) of article 26 of the SANCTIONS REGULATION, and what is established in article 236-A of Law No. 27444, General Law of Administrative Procedure (hereinafter, LPAG), since it recognizes its responsibility regarding the facts that occurred and contributes to the clarification of the infractions;

That, AUTOPLAN adds that it could be considered ex officio that, in addition, it falls under the circumstance established in letter c) of article 26 of the SANCTIONS REGULATION, considering that it proceeded to fully remedy the conduct in discussion, since, upon the presentation of its appeal, it had already proceeded with the total return of the ASSOCIATE's contributions;

That, AUTOPLAN indicates that being within the circumstances of mitigating factors of responsibility for infractions, referred to in the preceding paragraphs, it corresponds that the fine established by the SASP be reduced by at least 50%;

II. EVALUATION OF THE APPEAL

2.1 Formal requirements of the appeal

That, the appeal filed by AUTOPLAN meets the requirements established in articles 113, 207, 209 and 211 of the LPAG, since it was filed within the deadline of fifteen (15) business days from notification of the administrative act, it is founded on issues of pure law and meets the other requirements established by the regulation;

8 Article 113.- Requirements of writings
Any writing presented before any entity must contain the following:

1. Full names, address and National Identity Document number or foreigner's ID card of the administrator, and in its case, the quality of representative and of the person whom he represents.
2. The concrete expression of what is requested, the grounds of fact that support it and, when possible, those of law.
3. Place, date, signature or digital fingerprint, in case of not knowing how to sign or being impeded.
4. The indication of the organ, the entity or the authority to which it is directed, understanding by such, insofar as possible, the authority of the grade closest to the user, according to the hierarchy, with competence to hear and resolve it.
5. The address of the place where notifications of the procedure are desired to be received, when it is different from the real address exposed by virtue of numeral 1. This designation of address produces its effects from its indication and is presumed subsistent, while it is not expressly communicated its change. Likewise, the electronic mail or, if the case, the electronic box, according to article 20 of the present law.
6. The relationship of the documents and attachments that accompany, indicated in the TUPA.
7. The identification of the file of the matter, regarding already initiated procedures.

9207.1 The administrative resources are:
a) Recurso de reconsideración b) Recurso de apelación Only in case that by law or legislative decree it is expressly established, the interposition of the administrative resource of revision is admissible.

207.2 The term for the interposition of the resources is of fifteen (15) days peremptory, and they must be resolved in the deadline of thirty (30) days, with exception of the recurso de reconsideración that is resolved in the deadline of fifteen (15) days. Exceptionally, in the administrative procedures of single instance of competence of the councils

10 Article 209.- Recurso de apelación
The recurso de apelación will be interposed when the impugnment is sustained on different interpretation of the produced proofs or when it is about issues of pure law, being directed to the same authority that issued the act that is impugned.

11 Article 211.- Requirements of the resource
The writing of the resource must point out the act from which it is appealed and will comply with the other requirements provided in article

12 236-A.- Exemptions and mitigating factors of responsibility for infractions 1.- The following constitute exemption conditions of responsibility for infractions:
a) Fortuitous case or force majeure 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, always that this affects the aptitude to understand the infraction. d) Mandatory order of competent authority, issued in exercise of its functions. e) Error induced by the Administration or by confusing or illegal administrative disposition. f) Voluntary remediation by the possible sanctioned of the act or omission imputed as constitutive of administrative infraction, prior to the notification of the imputation of charges referred to in clause 3) of article 235. 2.- The following constitute mitigating conditions of responsibility for infractions:
a) If initiated an administrative sanctioning procedure the offender recognizes his responsibility in an express and written form.
In the cases where the applicable sanction is a fine this is reduced up to an amount not lower than half of its amount. b) Others that are established by special norm.

2.2 Evaluation of the arguments of the appeal

That, with respect to what manifested by AUTOPLAN that it corresponds to apply the mitigating factors provided for in letters a) and b) of article 26 of the SANCTIONS REGULATION, as well as what is established in article 236-A of the LPAG, in view of that, through a document of defenses it would have recognized its responsibility regarding the four (04) charges imputed and contributed to the clarification of the same, it must be pointed out that it has been verified that in the present case, AUTOPLAN did not present defenses regarding Office No. 5110-2023-SMV/10.3 (hereinafter OFFICE OF CHARGES), despite the fact that, at its request, an extension of the deadline for the presentation of defenses was granted through Office No. 5301-2023-SMV/10.3;

That, likewise, it must be mentioned that through Office No. 2381-2024-SMV/10 the SASP made available to AUTOPLAN the file in reference, as well as, Report No. 724-2024-SMV/10.3 (hereinafter, the INSTRUCTION REPORT), however, it is noted that AUTOPLAN also did not present arguments;

That, as it has been able to appreciate in the analyzed case, AUTOPLAN did not present defenses, nor did it present arguments to the INSTRUCTION REPORT, in which it manifested the recognition of its responsibility for the imputed infractions, so, the mitigating factor collected in letter a) of article 26 of the SANCTIONS REGULATION is not configured;

That, likewise, by not having had participation in the development of the present administrative sanctioning procedure until the interposition of the appeal, it also does not correspond to apply to it the mitigating factor of responsibility for infractions, collected in letter b) of article 26 of the SANCTIONS REGULATION, referred to contribution of the offender for the clarification of the

That, on this, it is noted that the RESOLUTION in its consideration 105, pointed out the following:
it is observed that in the present case any of the circumstances that constitute mitigating conditions of responsibility have been configured. With respect to 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, letters a) and b) of the SANCTIONS REGULATION, it must be indicated that AUTOPLAN did not present defenses. Consequently, it has not expressly recognized the commission of

PERU Ministry of Economy and Finance
SMV
Securities Market

That, consequently, in the present case it does not correspond the application of the mitigating factors provided for in letters a) and b) of article 26 of the SANCTIONS REGULATION;

That, in what respects to what pointed out by AUTOPLAN that it corresponds that it be applied the mitigating factor provided for in letter c) of article 26 of the SANCTIONS REGULATION, referred to the subsequent remediation after the request or the initiation of the administrative sanctioning procedure, it must be pointed out that the cited letter c) seeks to incentivize the prompt correction of the infringing conduct by the regulated entities, which is aligned with the precept that the sanctioning right not only seeks the imposition of a sanction, but also pursues the compliance of the norms by the regulated entities, so it grants a benefit to the offender that can be concretized in the reduction of the quantum of the sanction always that it remedies, corrects its misconduct or repairs the damage caused by the infraction, either when it is required by the administrative authority or after the initiation of the sanctioning procedure;

That, likewise letter c) of article 26 of the SANCTIONS REGULATION reaffirms the legitimacy of the sanctioning power and its commitment to a sanctioning model oriented to the prevention and correction of misconducts that affect the dispositions that govern the collective funds and their administering companies;

That, having the above in mind, it proceeds to analyze if in the present case it corresponds the application of the remediation collected in letter c) of article 26 of the SANCTIONS REGULATION, for each infraction in which AUTOPLAN incurred;

That, with respect to the first charge imputed, for not having AUTOPLAN complied with observing the deadline established to contact the ASSOCIATE in order to communicate the date of return of his contributions, it must be indicated that according to what established in the RESOLUTION, AUTOPLAN had as deadline to communicate the date of return of the contributions of CONTRACT 1 in favor of the ASSOCIATE until August 08, 2022; however, having been required through Office No. 722-2023-SMV/10.3 to inform about the referred communication, it did not present the required information, that is, there is no record that such communication was made even after the expiration of the deadline. Consequently, AUTOPLAN has not accredited that it has remedied the referred infringing conduct;

That, as for the second and third charges imputed: (i) Not having complied with the deadline to make the return of contributions in favor of the ASSOCIATE corresponding to CONTRACT 1, after the conclusion of the group, in the liquidation stage, and, (ii) Not returning the contributions corresponding to CONTRACT 2 in favor of the ASSOCIATE as a consequence of being awarded in the quarterly draw held in June 2021, it must be pointed out that AUTOPLAN had as deadline to return the contributions corresponding to CONTRACT 1 on October 18, 2022; however, the return was made effective only on April 17, 2023, that is, almost 6 months later than the deadline. Likewise, AUTOPLAN had to make the return of the contributions corresponding to CONTRACT 2 from the date in which the ASSOCIATE was awarded in the quarterly draw, corresponding to June 2021; however, it reached a transaction and made the return of the referred contributions of CONTRACT 2 only on April 17, 2023;

That, additionally it is worth mentioning that the RESOLUTION, also points out in various considerations that AUTOPLAN reached a transaction with the ASSOCIATE, and made the return of his contributions corresponding to CONTRACT 1 and to CONTRACT 2, through a bank transfer for the amount of US$ 16,475.50 of date April 17, 2023;

That, in that sense, although it is undeniable that AUTOPLAN incurred in the infractions for not returning the ASSOCIATE's contributions in a timely manner; however in the RESOLUTION it also merited the return of the same, when determining the sanction and taking into account also the sanctioning criteria, a sanction corresponding to a classification lower than that provided for serious infractions was imposed on AUTOPLAN, by virtue of article 25 of the SANCTIONS REGULATION;

That, with respect to the fourth charge imputed, about not having complied with presenting the account statements of CONTRACT 1, despite the fact that this information was requested on more than one occasion, it is observed that through Office No. 722-2023-SMV/10.3, notified on February 16, 2023, it was requested to AUTOPLAN the remittance of information, including the account statements corresponding to the collective fund administration contracts subscribed with the ASSOCIATE. In response to said office AUTOPLAN requested an extension of the deadline granted for the presentation of the referred information, which was granted through Office No. 931-2023-SMV/10.3; however, after the extension expired AUTOPLAN did not comply with presenting the required information;

That, likewise through Office No. 3882-2023-SMV/10.3, of date August 21, 2023, the request for the account statements of CONTRACT 1, among other additional information, is reiterated; regarding which AUTOPLAN requested an extension of the granted deadline, which was granted through Office No. 3965-2023-SMV/10.3, and expired on September 05, 2023. Subsequently, through electronic mail on September 07, 2023, the referred information is requested again to AUTOPLAN, having AUTOPLAN on that date presented in an incomplete form the required information, indicating moreover that it was not possible for it to obtain a copy of the account statements corresponding to CONTRACT 1, due to the fact that they had already made the return of what was contributed by the ASSOCIATE, so on this charge, AUTOPLAN did not remedy the referred conduct of presenting the account statements of CONTRACT 1;

That, considering the above, through the RESOLUTION, a fine of seven (07) UIT was imposed on AUTOPLAN for having incurred in the four (4) infractions, one (1) of a minor nature and three (3) of a serious nature;

That, according to article 38 of the SANCTIONS REGULATION, a serious infraction is sanctionable with a fine greater than twenty-five (25) and up to fifty (50) Tax Units (UIT) or with the prohibition of the formation of new groups, so a sanction amounting to twenty-five (25) UIT could have been imposed on AUTOPLAN;

13 Article 38.- Sanctions for serious infractions For the commission of serious infractions, one of the following sanctions is imposed on the offender: a) fine greater than 14 Due to the fact that the determined infractions are of different nature, it corresponded to impose the sanction for the infraction of greater gravity, according to what points out the second paragraph of article 29 of the SANCTIONS REGULATION: Likewise, when several conduct qualify as more than one infraction, the sanction that corresponds to

PERU Ministry of Economy and Finance
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Securities Market

That, however, in the present sanctioning procedure, the SASP in application of the principle of reasonableness contemplated in numeral 3 of article 230 of the LPAG, which points out that sanctions must be proportional to the non-compliances qualified as infractions, imposed a sanction corresponding to a classification lower than that provided for serious infractions, according to what is pointed out in article 25 of the SANCTIONS REGULATION;

That, this implies that a fine of seven (07) UIT corresponding to minor infractions was applied, which corresponds to an amount not lower than one (1) UIT nor greater than twenty-five (25) UIT, according to article 39 of the SANCTIONS REGULATION;

That, for what exposed in the preceding considerations, it is concluded that in the analyzed case the foundations of the RESOLUTION have not been discredited, and that in it the return of the contributions through the transaction was merited, for the determination of the imposed sanction; and,

Being to what disposed by numeral 26 of article 12 of the Organization and Functions Regulation 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 Superintendent Adjunct Resolution SMV No. 044-2024-SMV/10.

Article 2.- Declare the administrative route exhausted.

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

Article 4.- Dispose the diffusion of this resolution on the Institutional Page of the Superintendent of the Securities Market on the Unique Digital Platform of the Peruvian State (www.gob.pe/smv).

Register, communicate and publish.

Zósimo Juan Pichihua Serna
Superintendent of the Securities Market

15 In the TUO LPAG it is located as article 248