Superintendent Resolution No. 073-2026-SMV/02 — SMV — PE

PERÚ Ministry of Economy and Finance

SMV

SEEN:

File No. 2025030932, Report No. 1019-2026-SMV/06, from the Legal Advisory Office, through which it issues an opinion on the appeal filed by Diviso Bolsa Sociedad Agente de Bolsa S.A. (hereinafter, DIVISO SAB) against Adjunct Superintendent Resolution SMV No. 006-2026-SMV/10 and after hearing the oral report from the representatives of the appellant;

CONSIDERING:

That, through Adjunct Superintendent Resolution SMV No. 006-2026-SMV/10 (hereinafter, SANCTION RESOLUTION), DIVISO SAB was sanctioned with the revocation of its operating authorization, for having committed one (1) infringement classified as very serious, typified in Annex I, numeral 1, subsection 1.2 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), for failing to comply with what is established in Article 46, letter a), second paragraph of the Intermediation Agents Regulation, approved by SMV Resolution No. 034-2015-SMV/01 (hereinafter, RAI); and Article 1912, letter j) of the Unified Text of the Order of the Securities Market Law, approved by Supreme Decree No. 020-2023-EF (hereinafter, TUO LMV) for: carrying out prohibited operations or activities, by acting as a placement agent for securities issued by Diviso Fondos Sociedad Administradora de Fondos S.A. charged to the investment funds named "Diviso Investment in Claims Investment Fund" and "Diviso Corporate Investments Investment Fund", without observing the provisions established in the regulations;

"Article 46.- Markets in which the Intermediation activity develops Agents may develop the intermediation activity, on their own account or for third parties, of Financial Instruments in any of the markets detailed below:
a) Primary Market.- In this market, Agents may act as placement agents for Financial Instruments that are issued only by legal entities. The Agent, prior to its participation as a placement agent in this market, must determine jointly with the issuer, if the placement of Financial Instruments, due to their characteristics or conditions, constitutes a public offer.
In public offers, the Agent must observe the provisions established in the Law, and in the specific regulations that regulate such offers. The participation of the Agent, in the placement of Financial Instruments, must be formalized in express contracts with the issuer, which will include the terms and conditions corresponding to the services that the Agent will provide. Likewise, observing the provisions of the current regulatory framework, Agents may acquire, on their own account or for third parties, Financial Instruments that are offered through public or private offer, in the local or foreign market. (…)" 2 Article 191.- Prohibitions.- Agent societies are subject to the following prohibitions, without prejudice to those contemplated in Article 177 and those that emanate from this law:
(…) j) Intervene in unauthorized operations.

PERÚ Ministry of Economy and Finance

SMV

I. ANALYSIS OF THE ADMISSIBILITY OF THE APPEAL
6. That, from the evaluation carried out, it has been verified that the appeal filed by DIVISO SAB meets the requirements established in articles 1133, 2114 and has been presented within the period provided in article 2075 of the Unified Text of the Order of Law No. 27444, approved by Supreme Decree No. 006-2026-JUS (hereinafter, TUO LPAG); likewise, it is necessary to specify that, through Superintendent Resolution No. 019-2026-SMV/02, this procedure was classified as one of high complexity, so the appeal will be resolved within the special period provided in article 46 of Legislative Decree No. 1683;

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

Full names and surnames, address and number of National Identity Document or foreigner's card of the administrator, and if applicable, the quality of representative and of the person whom he represents.
The concrete expression of what is requested, the grounds of fact that support it and, when possible, those of law.
Place, date, signature or digital fingerprint, in case of not knowing how to sign or being impeded.
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 closest degree to the user, according to the hierarchy, with competence to know and resolve it.
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.
The relationship of the documents and annexes that accompanies, indicated in the TUPA.
The identification of the file of the matter, in the case of already initiated procedures."
"Article 211.- Requirements of the appeal
The writing of the appeal must point out the act from which it is appealed and will comply with the other requirements provided in article 124."
"Article 207. Administrative resources
218.1 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 filing of the administrative review resource is possible.
207.2 The term for the filing of the resources is fifteen (15) peremptory days, and they must be resolved in the period of thirty (30) days with the exception of the reconsideration resource that is resolved in the period of fifteen (15) days. Exceptionally, in the administrative procedures of single instance of competence of the director councils of the regulatory bodies, the reconsideration resource is resolved in the period of thirty (30) days."
6 Article 4.- Attention period for appeals filed in high complexity sanctioning administrative procedures

PERÚ Ministry of Economy and Finance

SMV

ON THE ALLEGED MATERIAL INCOMPETENCE OF THE GENERAL INTENDANCE OF PRUDENTIAL COMPLIANCE AND THE NULLITY OF THE PROCEDURE
8. That, DIVISO SAB states that the material incompetence of the General Intendancy of Prudential Compliance (hereinafter, IGCP) determines the absolute nullity of the sanctioning administrative procedure. It alleges that, in accordance with the principle of legality recognized in article IV numeral 1.1 of the Unified Text of the Order of Law No. 27444, approved by Supreme Decree No. 006-2026-JUS (hereinafter, TUO LPAG), administrative competence is of express attribution and cannot be presumed, interpreted extensively, constructed by connectivity nor derived by analogy;
9. That, DIVISO SAB refers that the object of the procedure does not deal with prudential matters, such as the solvency of the SAFI, the prudential supervision of its assets, the compliance with regulatory ratios nor the fiduciary management of the fund, but on the performance of DIVISO SAB as a placement agent, the public or private nature of the offer and the alleged infringement to market norms contained in the TUO LMV. On this basis, DIVISO SAB argues that it is a matter of market conduct supervision, which is attributed to the Adjunct Superintendence of Market Conduct Supervision (hereinafter, SASCM), in accordance with article 42 of the Organization and Functions Regulation of the SMV, approved by Supreme Decree No. 216-2011-EF and its amendments (hereinafter, ROF SMV);
10. That, it holds that the exception provided for in article 42 of the ROF SMV, referred to issuers that are entities under prudential supervision, must be interpreted restrictively, and that it reaches only the issuer, not the other participants in the offer, such as intermediaries, placement agents or structurers. Therefore, DIVISO SAB argues that extending said exception to the entire ecosystem of the offer would empty the competence of the SASCM of content and create a rule not provided for by the ROF SMV;
11. That, it questions that the SANCTION RESOLUTION has affirmed that the Fund Administrator Society (SAF) "issues securities on behalf of the fund", since it considers that this implies a confusion between representation and issuance. It refers that, in accordance with the Investment Funds Law, approved by Legislative Decree No. 862 (hereinafter, FUNDS LAW), the fund constitutes an autonomous patrimony, while the SAFI administers and represents it; therefore, the center of imputation of the issuance is the fund;

The SMV has a maximum period of ninety (90) business days to resolve appeals filed in high complexity sanctioning administrative procedures.

PERÚ Ministry of Economy and Finance

SMV

ON THE VIOLATION OF THE PRINCIPLE OF LEGALITY/TYPICALITY, IMPROPER REVERSAL OF THE BURDEN OF PROOF AND APPARENT MOTIVATION IN DISQUALIFYING THE SWORN DECLARATIONS OF INSTITUTIONAL INVESTOR AND IMPOSING A "STANDARD OF REINFORCED VERIFICATION" NOT PROVIDED FOR BY THE REGULATIONS
13. That, DIVISO SAB states that the SANCTION RESOLUTION incurs in a vice of legality and motivation, by giving less value to the sworn declarations of institutional investor presented to support that the placement was directed exclusively to institutional investors and imposing ex post a duty of reinforced or exhaustive verification not provided for in the applicable regulatory framework;
14. That, DIVISO SAB states that the Regulation of the Institutional Investors Market provides that, in certain cases, the verification is documented "at least" by the sworn declaration of the investor, without requiring patrimonial audits, complete external validations or global portfolio confirmations. Therefore, it affirms that the authority cannot sanction as if there were an additional untypified obligation;
15. That, DIVISO SAB questions that the SANCTION RESOLUTION has transformed the expression "at least" into a criterion according to which the sworn declaration "is not enough", building a higher standard without prior regulatory basis. In the opinion of DIVISO SAB, if the norm recognizes the sworn declaration as a minimum suitable means of accreditation, any additional requirement must be previously provided for and not be incorporated in the sanctioning venue;
16. That, it refers that the SANCTION RESOLUTION presents apparent motivation and internal incongruence by affirming that it does not correspond to evaluate the efficacy or inefficacy of the sworn declarations, but, immediately after, gives them less value to define the recipients and the qualification of the offer. DIVISO SAB points out that, if the Administration opted to dismiss them, it had to explain and prove why they were invalid or ineffective, and not limit itself to declaring that they are not enough;
17. That, it alleges that the SANCTION RESOLUTION improperly reverses the burden of proof, by requiring it to prove that the offer was directed exclusively to institutional investors with a standard higher than the regulatory one. DIVISO SAB adds that, eventual contradictions between the sworn declarations and other documents, would not automatically convert the sworn declarations into ineffective or false;

PERÚ Ministry of Economy and Finance

SMV

Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml ON THE VIOLATION OF THE PRESUMPTION OF LAWFULNESS, REVERSAL OF THE BURDEN OF PROOF AND APPARENT MOTIVATION IN THE QUALIFICATION OF THE OFFER AS PUBLIC
18. That, DIVISO SAB holds that the challenged resolution presents a structural defect in the determination of the alleged public nature of the offer, having been sustained on an improper use of the duty of collaboration of article 67.2 TUO LPAG; in the confusion between presumption of veracity and burden of proof in the PAS; in a restrictive interpretation of article 5 of the TUO LMV; and, in an incomplete valuation of the means of proof on the quality of the investors;
19. That, it argues that the Administration improperly transferred the burden of proof to DIVISO SAB, since in a sanctioning procedure it corresponds to the Administration to prove each element of the infractor type, which has been recognized by the Constitutional Court7. Likewise, it questions that the SANCTION RESOLUTION has substituted sufficient proof by indications and inferences, as well as transferring to the PAS a presumption proper of general procedures;
20. That, it questions the interpretation of article 5 of the TUO LMV, as if the cases of private offer were a closed list, when, in the opinion of DIVISO SAB, the so-called "safe harbors" operate as cases of legal certainty. Under that premise, it affirms that it corresponded to analyze if there was public diffusion, open invitation, mass or indiscriminate collection;
21. That, finally, it questions the probative valuation on the quality of the investors, pointing out that the SANCTION RESOLUTION would not have adequately identified the methodology used to conclude that certain investors "did not qualify" as institutional, nor would it have valued sufficiently the sworn declarations of institutional investor. It alleges that such construction leads to objective responsibility, in the measure that it suggests that, if some investors did not qualify as institutional, the offer must be considered public and the SAB must have warned it, regardless of the knowledge or diligence of the agent. Consequently, it holds that the qualification of the offer as public is sustained on inferences derived from silence, on an extensive use of the duty of collaboration, on a formalist interpretation of article 5 of the TUO LMV, on an incomplete probative valuation and on conclusive assertions without methodological development;

7 Exp. N° 00113-2024-PA/TC:
"11. In this sense, the scopes derived from this guarantee extend to the administrative seat and take life in the principle of presumption of lawfulness, regulated in article 230, numeral 9 of Law 27444, General Administrative Procedure Law, which establishes that entities must presume that the administrators have acted in accordance with their duties while they do not have evidence to the contrary.
12. In this context, it is important to specify that the organs that make up the Public Administration can only impose sanctions once they have disproven the presumption of lawfulness that protects the administrator. In other words, the Administration must have sufficient probative means that credibly accredit the responsibility of the administrator with respect to the fact that is imputed to him.
13 Any sanction, whether penal or administrative, must be based on a minimum activity of probative charge, that is, the burden of proof corresponds to the one who accuses; he must prove the fact for which he accuses a certain person, proscribing sanctions that are based on presumptions of guilt. Thus, the presumption of innocence constitutes a limit to the exercise of the sanctioning power of the State in its various manifestations" (Highlighted by DIVISO SAB)

PERÚ Ministry of Economy and Finance

SMV

Electronically signed document in the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and the authorship of the signature(s) can be verified at https://apps.firmaperu.gob.pe/web/validador.xhtml ON THE ERROR IN THE CONSTRUCTION OF THE "NEED FOR TUTELAGE" AND DEFECT OF MOTIVATION ON THE AVAILABLE INFORMATION
22. That, DIVISO SAB states that the SANCTION RESOLUTION incurs in legal error and defect of motivation by sustaining the qualification of the qualification in the "need for tutelage", as well as by affirming that the available information regarding the funds was not sufficient for the investors of debt instruments;
23. That, DIVISO SAB states that the presumption provided for in article 6 of the Regulation of Primary Public Offer and Sale of Securities, approved by Conasev Resolution No. 141-98-EF/94.10 and its amendments (hereinafter, ROPPV) is a relative legal presumption, which admits proof to the contrary and does not operate automatically. However, DIVISO SAB refers that the SANCTION RESOLUTION applied the presumption automatically by sustaining that, by having placed securities to 506 clients, it was presumed that these required tutelage, without analyzing the concrete profile of the investors, the information effectively available, the sworn declarations, nor their knowledge and financial experience;
24. That, DIVISO SAB questions that the authority has not considered that the funds were registered in the Public Registry of the Securities Market (RPMV), which implied the existence of historical public information, revelation regime, important events, financial statements and prior supervision. It adds that the SANCTION RESOLUTION does not identify what concrete information was missing, what specific obligation was not complied with, what relevant data was omitted nor what information asymmetry would have been produced;
25. That, DIVISO SAB holds that the SANCTION RESOLUTION incurs in a contradiction in the identification of the issuer, by sustaining in some sections that the issuer is the SAF, and in others, that the instruments were issued by the fund. In the opinion of DIVISO SAB, that in neither of the two scenarios is a deficit of tutelage accredited;
26. That, finally, DIVISO SAB alleges that the SANCTION RESOLUTION does not demonstrate deception, omission of specific information, concrete damage nor real defenselessness, but only constructs an abstract need for tutelage; therefore, it concludes that the qualification of the placement as a public offer sustained on the "need for tutelage" lacks sufficient regulatory basis and is vitiated by defect of motivation;

ON THE INCORRECT APPLICATION OF THE PRESUMPTION OF PUBLIC INTEREST BY NUMBER OF RECIPIENTS, ARTICLE 6 LETTER D OF THE ROPPV, IMPROPER REVERSAL OF THE BURDEN OF PROOF AND DEFECTIVE PROBATIVE VALUATION
27. That, DIVISO SAB states that the SANCTION RESOLUTION incorrectly applied the presumption of public interest provided for in article 6 letter d) of the ROPPV, by sustaining that, by having participated more than one hundred (100) investors in the placement of securities issued by Diviso Fondos Sociedad Administradora de Fondos S.A. (hereinafter, DIVISO SAF) with charge to the Funds of

PERÚ Ministry of Economy and Finance

SMV

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