Superintendent Resolution No. 086-2025-SMV/02

PERU Ministry of Economy and Finance

SMV
Electronic document digitally signed within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and the authorship Superintendent Resolution No. 086-2025-SMV/02 Lima, July 22, 2025 The Superintendent of the Securities Market SEEN:
The File No. 2024038005 and Report No. 1012-2025- SMV/06, from the Legal Advisory Office, through which it issues an opinion on the appeal filed by Michell y CIA S.A. (hereinafter, MICHELL) against the Adjunct Superintendent Resolution SMV No. 016-2025-SMV/11; CONSIDERING:
That, through Adjunct Superintendent Resolution SMV No. 016-2025-SMV/11 (hereinafter, SANCTION RESOLUTION), MICHELL was sanctioned with a total fine of 50 UIT, for having committed two (2) serious infractions typified in Annex I, numeral 2, subsection 2.10 1 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 and its amendments (hereinafter, SANCTIONS REGULATION) for: (i) not presenting the individual audited annual financial statements and their corresponding audit report for the 2023 fiscal year; and, (ii) not presenting the annual report corresponding to the 2023 fiscal year; That, on March 12, 2025, MICHELL presented before the SMV the audited annual financial statements and their corresponding audit report for the 2023 fiscal year, as well as the annual report for said fiscal year; That, with a written submission presented on March 07, 2025, MICHELL filed an appeal against the SANCTION RESOLUTION; That, through Superintendent Resolution No. 027- 2025-SMV/02 dated March 11, 2025, the present administrative sanctioning procedure was classified as high complexity; That, with Letter No. 3744-2025-SMV/14 dated July 9 2025, the right to be heard was granted to MICHELL, which was carried out on day July 14, 2025; That, through Report No. 1012-2025-SMV/06 of July 22 2025 (hereinafter, REPORT), the Legal Advisory Office issued a legal opinion on the arguments contained in its appeal;
I. ANALYSIS OF THE ADMISSIBILITY OF THE APPEAL

“2.10. Not communicate facts of importance or not present individual or consolidated audited financial information, the individual or consolidated interim financial statements, management report or special audit report and annual reports”

PERU Ministry of Economy and Finance

SMV
Electronic document digitally signed within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and the authorship That, from the evaluation carried out, it has been confirmed that the appeal filed by MICHELL meets the requirements established in articles 113 2 , 211 3 and has been presented within the term provided in article 207 4 of Law No. 27444, General Administrative Procedure Law (hereinafter, LPAG);
II. ARGUMENTS OF THE APPEAL AND OF THE RIGHT TO BE HEARD
That, below are exposed succinctly the arguments contained in the appeal filed by MICHELL:
FACTUAL GROUNDS
That, MICHELL states that on January 04, 2023, through a notarized communication, the auditing firm Tanaka, Valdivia & Asociados S.C.R.L., with whom it had contracted the audit service of its individual annual financial statements corresponding to the 2022 fiscal year, terminated abruptly, unjustifiably and arbitrarily the Audit Services Contract signed between both companies; That, MICHELL refers that facing this situation, it saw itself in the need to contract the services of the auditing firm Gaveglio, Aparicio y Asociados (hereinafter, PWC), with whom it signed the corresponding hiring letter on January 10, 2023; being that, through a fact of importance of July 03 2023, it informed the SMV of such designation. Likewise, MICHELL states that PWC had to start from scratch the audit of the individual annual financial statements corresponding to the 2022 fiscal year, since for the first time MICHELL hired the aforementioned auditing firm, so PWC did not know the financial, economic and accounting background of MICHELL;

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

Full names, address and National Identity Document number or foreigner's ID card
of the administered, and if applicable, the quality of representative and of the person they represent.
The concrete expression of what is requested, the factual grounds that support it and, when possible, the legal ones.
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 addressed, understanding by such, as far as possible, the
authority of the grade closest to the user, according to the hierarchy, with competence to hear 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 domicile exposed pursuant to numeral 1. This indication of domicile produces its effects from its indication and is presumed subsistent, while its change is not expressly communicated.
The list of documents and annexes that accompany, indicated in the TUPA.
The identification of the matter file, regarding already initiated procedures.”
The reference of this article in the TUO OF THE LPAG is located in Article 124.
“Article 211.- Requirements of the appeal
The appeal writing must point out the act from which the appeal is made and will comply with the other requirements provided in article 124.”
In the TUO OF THE LPAG it is located in Article 221.
“Article 207. Administrative resources
218.1 The administrative resources are:
a) Reconsideration resource b) Appeal resource Only in case that by law or legislative decree it is expressly established, the filing of the administrative review resource is admissible.
207.2 The term for the filing of the resources is fifteen (15) peremptory days, and they must be resolved within the term of thirty (30) days except for the reconsideration resource which is resolved within the term of fifteen (15)
days. Exceptionally, in single-instance administrative procedures of competence of the governing councils of regulatory bodies, the reconsideration resource is resolved within the term of thirty (30) days.”
In the TUO OF THE LPAG it is located in article 218.

PERU Ministry of Economy and Finance

SMV
Electronic document digitally signed within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and the authorship That, MICHELL holds that through a petition writing, it requested that, by exception, an additional term until May 31, 2024, be granted for the presentation of its individual audited annual financial statements and annual report with their respective annexes, corresponding to the 2023 fiscal year, basing itself on the impossibility, not imputable to MICHELL, of presenting said information within the established term, due to the fact that it had not received the corresponding audit report from PWC; That, MICHELL refers that, on April 25, 2024, through Letter No. 52-2024-SMV/02, the SMV resolved to dismiss the request presented by MICHELL, proceeding to appeal that decision, reconducting it as a reconsideration resource, which was declared unfounded through Letter No. 64-2024-SMV/02, issued on May 27, 2024. To which, on May 31, 2024, MICHELL through a new administrative petition, formulated its request that, in an exceptional manner, an additional term be granted to present its financial information and annual report of the 2023 fiscal year, until July 31, 2024, which through Letter No. 76-2024-SMV/02 of June 24, 2024 was declared inadmissible; That, subsequently on September 11, 2024, the administrative sanctioning procedure begins, being that on February 17, 2025, MICHELL receives the audit report from PWC, which was presented before the SMV, along with the call to the mandatory annual shareholders' meeting, to approve the financial information and annual report of the 2023 fiscal year, according to the presentation receipt that MICHELL attaches as Annex 1 of the present appeal; LEGAL GROUNDS ON THE VIOLATION OF THE PRESUMPTION OF LAWFULNESS:
That, MICHELL holds that from the review carried out to subsection 2 “causality” of numeral 4.2 of the SANCTION RESOLUTION, it has been detected that the SASCM continues to sustain that the circumstance that MICHELL found itself unable to comply with the presentation of its individual audited annual financial statements and their corresponding audit report for the 2023 fiscal year, as well as the annual report of said fiscal year, originates in a presumptive punishable negligence on the part of MICHELL, as appreciated from the following extracts of the SANCTION RESOLUTION that exposes below:

PERU Ministry of Economy and Finance

SMV
Electronic document digitally signed within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and the authorship That, MICHELL argues that there are no proofs within the present procedure that demonstrate that: (i) it has not taken the necessary precautions to hire the auditing firm in a timely manner; (ii) it has not acted diligently in carrying out a timely follow-up for the fulfillment of the contract signed with the auditing firm; and (iii) it has not deployed all the necessary mechanisms for the audit service of the financial statements to conclude satisfactorily in order to be presented within the term established in the regulatory framework; therefore, according to the principle of presumption of lawfulness, it corresponds to the SMV the burden of proof to demonstrate the imputation of culpability (negligence) carried out by MICHELL; That, it refers that the SASCM incurs in the violation of the principle of lawfulness, regulated in numeral 9 of article 230 of the General Administrative Procedure Law, (hereinafter LPAG), collected in numeral 9 of article 248 5 of the Single Text Ordered of Law No. 27444, approved by Supreme Decree No. 004-2019-JUS, (hereinafter, TUO OF THE LPAG), which provides: “Entities must presume that the administered have acted in accordance with their duties while they do not have evidence to the contrary”; likewise, it points out that this principle derives from the constitutional principle of presumption of innocence provided in literal e), of subsection 24 of article 2 of the Political Constitution of Peru, which states “Every person is considered innocent until their responsibility has been declared judicially”; That, consequently, MICHELL holds that the authorities must presume that the administered have fulfilled their obligations while there is no conclusive evidence to the contrary; likewise, it points out that at the doctrinal level doctor Baca Merino 6 maintains that, according to the principle of presumption of lawfulness, the authorities in charge of the administrative sanctioning procedures must presume that the administered have acted in accordance with their duties and, in order to disprove this initial presumption, they must provide the probative evidence that allows to accredit the existence of the infraction and the culpability of the infringer, in the same line, Huergo Lora 7 and J.C. Morón Urbina pronounce themselves; That, finally, MICHELL refers that the Civil Service Tribunal in Resolution No. 000686-2018-SERVIR/TSC-First Chamber (fundament 41) established the following regarding the principle of lawfulness:
“every person has the right to the presumption of innocence, until it is demonstrated otherwise. That is, no person can be sanctioned without the existence of proofs that generate conviction about the responsibility

“Article 248.- Principles of the administrative sanctioning power The sanctioning power of all entities is additionally governed by the following special principles:
(…)
9. Presumption of lawfulness.- Entities must presume that the administered have acted in accordance with their duties while they do not have evidence to the contrary.”
6 Baca Merino, R. “Scope of the presumption of lawfulness in the administrative sanctioning procedure”. In Revista Derecho & Sociedad, no. 54, vol. 1 (2008), p. 275 7 Huergo Lora, Alejandro. Administrative sanctions. Madrid: Iustel, 2007, p. 427

PERU Ministry of Economy and Finance

SMV
Electronic document digitally signed within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and the authorship that is attributed to him; therefore he cannot be sanctioned based on mere indicia, presumptions or suspicions” (Underlining and highlighting added by MICHELL); That, therefore, MICHELL holds that it is unquestionable that the SASCM has flagrantly transgressed said principle by imputing a presumptive punishable negligence without providing any proof that substantiates in a conclusive manner the materialization of such legal figure. More serious still, it refers that the SMV intends to sanction based on an unfounded presumption of negligence, under the argument that MICHELL did not present probative means that accredited actions or measures adopted to avoid the delay of the auditing firm in delivering the audit report; this posture, MICHELL points out that not only violates the principle of lawfulness, but also openly disregards the burden of proof that falls on the sanctioning authority; consequently, the imputation formulated lacks legal and factual sustenance; ON THE VIOLATION OF THE BURDEN OF PROOF:
That, MICHELL points out that pursuant to numeral 162.1 of
article 162 8 of the LPAG, collected in numeral 173.1 of article 173 of the TUO OF THE
LPAG, it is established that the burden of proof is governed by the principle of official initiative; and, that although numeral 2 of the same article states that it corresponds to the administered to provide proofs through the presentation of documents and reports, as well as proposing expert opinions, testimonies and other permitted diligences, this evidentiary direction provision is not applicable to administrative sanctioning procedures, which is due to the own nature of these procedures, which are initiated ex officio by public entities; That, consequently, MICHELL holds that the obligation of proof of the administered is limited only to procedures initiated at the request of the party – such as complaints – in which it is the administered himself who has interest in demonstrating the lack of foundation of an administrative decision, which does not extend to sanctioning procedures, in which the burden of proof falls entirely on the public administration. Therefore, MICHELL refers that it is not enough to allege the non-compliance with a norm, the administration has the obligation to verify and credibly accredit the imputed facts, as well as carry out all the necessary probative activity to sustain its sanctioning pretension; That, likewise, MICHELL mentions what developed by the Constitutional Tribunal in case No. 238-2002-PA/TC, in which it pointed out:
“(…) Every sanction, whether penal or administrative, must be founded on a minimum probative activity of charge, that is, the burden of proof corresponds to the one who accuses; this must prove the fact for which he accuses a certain person, proscribing sanctions that are based on presumptions of culpability. Thus the presumption of innocence (…) constitutes a limit to the exercise of the sanctioning power of the State, in its various manifestations.” (Underlining and highlighting added by MICHELL);

8 Article 162.- Burden of proof
162.1 The burden of proof is governed by the principle of official initiative established in this Law.

PERU Ministry of Economy and Finance

SMV
Electronic document digitally signed within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations and amendments. The integrity of the document and the authorship That, additionally, it holds that the Fifth Chamber of Constitutional and Social Transitory Law of the Supreme Court of Justice in the Casación No. 546-2022 Lima, in literal 4.2.2 determines that:
“According to the principles of official initiative, informality and material truth, in any state of the administrative procedure, it corresponds to the administrative authority incorporate ex officio, the proofs that they consider necessary for the clarification of the facts.”
(Underlining and highlighting added by MICHELL); That, on the other hand, MICHELL mentions what exposed by doctors Macassi and Salazar 9 , according to the following:
“In our academic opinion we consider questionable (to say illegal) that some deciding authorities (and instructive) resort to the theory of the dynamic burden of proof, in order for them to be the administered accused who demonstrate their innocence (and not that be the authorities who demonstrate the guilt as the principle of presumption of lawfulness dictates). The usual foundation consists in that apparently the administered accused are those who have the greatest ease to provide proofs with respect to the instructive authority, so they should balance the procedure and expose the proofs of their innocence. (…) it is not reasonable to presume a priori that every documented administered to the millimeter his actions (and those of others linked to this), less still that he can have evidence of facts. (…) Thus, the doors are opened to that indiscriminately the administered are sanctioned not because they are really guilty, but because they could not prove their innocence.” (Underlining and highlighting added by MICHELL); That, finally, MICHELL makes reference to the author Miguel Carmona Ruano, according to the following:
“The burden of proof of the fact subject to sanction corresponds to the Administration, not to the administered. There is no room for any kind of “nuance” at this point. It is not possible to impose any sanction with the foundation of mere suspicions nor also on the basis that the accused has not demonstrated his innocence”. (Underlining and highlighting added by MICHELL); That, in that sense, MICHELL refers that the SASCM states the following:
“Additionally, it must be taken into account that it is the responsibility of the Management or equivalent organ of the Issuer the elaboration and presentation of the unaudited financial statements on which the audit work is based; as well as providing all the information required by the auditing firm in a timely and diligent manner; consequently, said situation was within the sphere of domain of the Issuer, therefore it corresponded to deploy all the necessary acts for the audit service to conclude within the agreed term and to present to the SMV the informations subject to charges.” (Underlining and highlighting added by MICHELL);

9 Macassi Zavala J. P., & Salazar Ortiz, E. E. (2020). Essential aspects of proof in the Peruvian administrative sanctioning procedure: right to proof, burden and standard of proof. Derecho & Sociedad, 1(54), 337-359. Recovered from https://revistas.pucp.edu.pe/index.php/derechoysociedad/article/view/22425

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" 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

That, MICHELL maintains that the circumstance of not having timely submitted its individual annual audited financial statements and annual report with their respective annexes, corresponding to the 2023 fiscal year, is solely and exclusively due to the fact that it did not receive the audit report from PWC; and, therefore, it is credibly established that this does not constitute a situation that "was within the sphere of control of the ISSUER." Furthermore, it refers to the cited text of the SANCTIONING RESOLUTION, where the SASCM states that it was incumbent upon MICHELL to carry out all necessary acts for the audit service to be completed within the agreed timeframe; however, it is the SMV itself that must prove that this did not happen;

That, consequently, MICHELL points out that the SASCM has transgressed the burden of proof by attempting to reject the arguments developed in the defense statement dated November 25, 2024, alleging that MICHELL had not proven the existence of the exemption from liability due to a determining act of a third party, thereby shifting a burden of proof onto MICHELL that does not correspond to it, arbitrarily inverting the principles governing the administrative sanctioning procedure;

ON THE VIOLATION OF THE PRINCIPLE OF TRUTH AND RULES OF EVIDENCE:

That, on this matter, MICHELL mentions Article IV, numeral 1.11 of Article IV 10 of the Preliminary Title of the LPAG, collected in numeral 1.11 of Article IV of the TUO DE LA LPAG, which regulates the principle of material truth, as well as Articles 177 11 and 190 12 of said normative body, regarding means of evidence and evidentiary proceedings affecting third parties, respectively;

That, in this sense, MICHELL refers to the second additional clause of its defense statement presented on September 20, 2024, requesting that, under the auspices of the principle of material truth and the SMV's administrative evidentiary powers, the auditing firm PWC be requested to inform about the reasonable time it took and/or will take to prepare the audited financial statement reports for the 2022 and 2023 periods of MICHELL, specifying the reasons for the time taken and/or to be taken for the elaboration of these reports and whether such time has any relation to the short notice with which it received the information and/or that it was just taking over the supervision of the states

“Article IV.- Principles of the administrative procedure
1.11 Principle of material truth.- In the procedure, the competent administrative authority must fully verify the facts that serve as the basis for its decisions, for which it must adopt all necessary evidentiary measures authorized by law, even if they have not been proposed by the regulated entities or have agreed to be exempted from them.
In the case of trilateral procedures, the administrative authority will be empowered to verify by all available means the truth of the facts proposed to it by the parties, without this meaning a substitution of the burden of proof that corresponds to them. However, the administrative authority will be obliged to exercise this power when its pronouncement could also involve public interest.” (Underlining and highlighting added by MICHELL) “Article 177.- Means of evidence The facts invoked or those that are conducive to deciding a procedure may be subject to all necessary means of evidence, except those prohibited by express provision. In particular, in the administrative procedure the following applies:
(…)
3. Grant hearing to the regulated entities, interrogate witnesses and experts, or obtain written declarations from them.” (Highlighting added by MICHELL)
12 “Article 190.- Evidentiary proceedings affecting third parties Third parties have the duty to collaborate in proving the facts with respect for their constitutional rights.”

PERÚ Ministry of Economy and Finance

That, MICHELL manifests that the SMV has omitted carrying out this evidentiary action and, on the contrary, has issued a "technical opinion," without knowledge and without being qualified to do so, regarding that the timeframe for the new auditor to issue its report was "prudent and reasonable":

“Accordingly, although the Issuer alleges that the auditing society has not sent its respective report as a circumstance for an exemption from liability due to force majeure or fortuitous event, it must be taken into account that it had a prudent and reasonable time to deliver its audit report, so that this event alleged as the basis for its non-compliance subject to charges does not meet the condition of being extraordinary, irresistible and unforeseeable, on the contrary, it is observed that the Issuer only limits itself to arguing a circumstance unrelated to its will referred to the fact that the auditing society had not yet sent the report.” (Underlining and highlighting added by MICHELL);

That, in this sense, MICHELL holds that the SANCTIONING RESOLUTION suffers from nullity for violating the principle of material truth and the faculties of administrative action of evidentiary means;

ON THE VIOLATION OF DUE MOTIVATION:

That, MICHELL maintains that regarding the motivation of the administrative act, contained in numerals 6.1 and 6.3 of Article 6 13 of the TUO DE LA LPAG 14, establish the obligation on the part of the administration to motivate its decisions concretely; likewise, it prohibits admitting as motivation those empty formulas of foundation that do not establish the motivation of the act;

That, MICHELL refers to section 26 of the Judgment dated November 8, 2011, issued in File No. 01939-2011-PA/TC, where the Constitutional Tribunal made the following clarification on apparent motivation:

“Apparent Motivation Vices
26 Apparent motivation exists when a certain judicial resolution, although it contains arguments or reasons of law or fact that justify the judge's decision, these are not pertinent for such effect, but are false, simulated or inappropriate, insofar as in reality they are not suitable to adopt such decision.” (Underlining and highlighting added by MICHELL);

That, similarly, MICHELL cites STC No. 728-2008-HC/TC 15, reasoning 7, which constitutes a precedent of mandatory observance, in which it refers that the Constitutional Tribunal has defined the types of undue motivation; likewise, MICHELL mentions numeral 1.2 16 of Article IV of the Preliminary Title of the TUO DE LA LPAG, referring to the principle of due process. Similarly, MICHELL mentions the reasoning 3, 4 and 5 of STC No. 4289-2004-PA/TC 17, regarding the right to due process;

That, under this reasoning, MICHELL manifests that it has been demonstrated that the SANCTIONING RESOLUTION presents deficient motivation that does not disprove the arguments presented in its defense statement of

parties to the process, or because it only attempts to give formal compliance to the mandate, relying on phrases with no factual or legal support.
(…) c) Deficiencies in external motivation, justification of premises. The control of motivation can also authorize the action of the constitutional judge when the premises from which the Judge starts have not been confronted or analyzed regarding their factual or legal validity. This usually occurs in difficult cases, as identified by Dworkin, that is, in those cases where problems of evidence or interpretation of regulatory provisions usually arise. Motivation presents itself in this case as a guarantee to validate the premises from which the Judge or Tribunal starts in its decisions. If a Judge, to base his decision: 1) has established the existence of damage; 2) then, has reached the conclusion that the damage was caused by "X", but has not given reasons on the link between the fact and the participation of "X" in such a case, then we will be facing a lack of justification of the factual premise and, consequently, the apparent formal correctness of the reasoning and of the decision may be judged by/the [constitutional] judge for a deficiency in the external justification of the judge's reasoning. d) Insufficient motivation. It refers, basically, to the minimum motivation required considering the indispensable reasons of fact or law to assume that the decision is duly motivated. Although, as this Tribunal has established in repeated jurisprudence, it is not about giving answers to each of the claims raised, insufficiency, seen here in general terms, will only be relevant from a constitutional perspective if the absence of arguments or the "insufficiency" of foundations is manifest in light of what is substantially being decided. e) Substantially congruent motivation. The right to the due motivation of resolutions obliges judicial bodies to resolve the claims of the parties in a manner congruent with the terms in which they are raised, without committing, therefore, deviations that imply modification or alteration of the procedural debate (active incongruence). Of course, not any level at which such non-compliance occurs immediately generates the possibility of its control. Total non-compliance with this obligation, that is, leaving the claims unanswered, or diverting the decision from the framework of the judicial debate generating indefensiveness, constitutes a violation of the right to judicial protection and also of the right to the motivation of the sentence (omissive incongruence). And that, starting from a democratizing conception of the process as expressed in our fundamental text (article 139°, paragraphs 3 and 5), it is a constitutional imperative that litigants obtain from judicial bodies a reasoned, motivated and congruent response to the claims made; precisely because the principle of procedural congruence requires that the judge, when pronouncing himself on a determined cause, does not omit, alter or exceed the petitions made before him.” (Highlighting and underlining by MICHELL) “Article 6.- Motivation of the administrative act
6.1 The motivation must be express, through a concrete and direct relationship of the relevant proven facts of the specific case, and the exposition of the legal and regulatory reasons that directly reference the aforementioned justify the adopted act.
(…)
6.3 General formulas or empty formulas of foundation for the concrete case or those formulas that due to their obscurity, vagueness, contradiction or insufficiency do not result specifically clarifying for the motivation of the act are not admissible as motivation.” (Underlining by MICHELL)
14 Collected in numerals 6.1 and 6.3 of the TUO DE LA LPAG.
14 “a) Non-existence of motivation or apparent motivation. It is beyond doubt that the right to a duly motivated decision is violated when the motivation is non-existent or when it is only apparent, in the sense that it does not account for the minimum reasons supporting the decision or does not respond to the allegations of the

PERÚ Ministry of Economy and Finance

That, therefore, it requests that the SANCTIONING RESOLUTION be declared null and that the definitive archiving of the present administrative sanctioning procedure proceed;

Of the use of the word:

That, MICHELL, in the hearing on the use of the word held on July 14, 2025, reiterated the arguments exposed in its reconsideration request and additionally, manifested that in the present administrative sanctioning procedure, hereinafter PAS, it requested accumulation with the PAS that follows file No. 2023043611, in which charges have been imputed for not presenting the annual audited financial statements and the annual report corresponding to the 2022 fiscal year, which was denied in the first instance. Nevertheless, it reiterates its request for accumulation of both PAS since, in its criterion, we are facing a continuing infringement and everything must be analyzed together;

III. EVALUATION OF THE ARGUMENTS EXPRESSED
ON THE VIOLATION OF THE PRESUMPTION OF LAWFULNESS:

That, according to MICHELL, from the review carried out on section 2 “causality” of numeral 4.2 of the SANCTIONING RESOLUTION, the SASCM maintains that the circumstance that MICHELL found itself unable to comply with its obligation originates in a presumed punishable negligence; therefore, in MICHELL's criterion, the principle of presumption of lawfulness would have been violated, since it corresponds to the SMV the burden of proof to demonstrate the imputation of culpability (negligence) carried out by MICHELL;

That, regarding the “principle of causality”, the treatise writer Christian Guzmán Napuri 18 states the following:

“In administrative sanctioning law – and general sanctioning law – responsibility must fall on whoever carries out the omissive or active conduct constituted as a sanctionable infringement. (…) But on the other hand, the principle of causality implies that administrative responsibility is personal, making it impossible for a regulated entity to be sanctioned for a fact committed by another regulated entity, unless the law expressly authorizes figures such as solidarity, whereby responsibility can be demanded from any of the regulated entities, or from all at once, as described by Law No. 27444; with the disputable nature of such figure, as we pointed out in this chapter” (Highlighting added);

That, likewise, the cited author 19, regarding the “principle of presumption of lawfulness,” states:

“By the principle of presumption of lawfulness, entities must presume that regulated entities have acted in accordance with their duties unless there is evidence to the contrary. This principle is similar in the penal field to the so-called presumption of innocence contained in our Constitution, which however should not be confused with the principle of indubio pro reo, which possesses a different origin and nature”; (Highlighting added);

That, in the case analyzed, it has been verified that the principle of causality is fulfilled, since through the SANCTIONING RESOLUTION MICHELL, a company that should have submitted its individual annual audited financial statements and annual report with their respective annexes, corresponding to the 2023 fiscal year, is sanctioned, by April 1, 2024 at the latest 20; however, they were presented only on March 12, 2025 21, that is, after the start of the present administrative sanctioning procedure;

That, additionally, it must be noted that to impute responsibility to the referred company, in the SANCTIONING RESOLUTION the elements by which it is concluded that MICHELL omitted to present its financial information and annual report of the 2023 fiscal year have been analyzed and described; likewise, it has been verified that the sanctioning body has analyzed the argument by which MICHELL attributes responsibility to the auditing society;

That, likewise, according to what is stated by MICHELL, although it corresponds to the SMV the burden of proof to attribute to the regulated entities the infringements that serve as the basis for sanctioning them, it also corresponds to the regulated entity itself to prove the excluding facts of its responsibility, as stated by the sanctioning body, in the SANCTIONING RESOLUTION, when referencing the author Nieto García 22 regarding the jurisprudence of the Spanish Supreme Court:

“(…) with regard to the burden of proof in any punitive action, it is the sanctioning body that must prove the facts that shall serve as support for the possible infringement, while it falls to the accused to prove the facts that may result in excluding their responsibility” (Highlighting and underlining added);

That, in this sense, what is stated by MICHELL regarding that the SASCM would not have indicated which proofs would demonstrate that MICHELL: “(i) has not taken the necessary precautions to hire the auditing society in a timely manner; (ii) has not acted diligently in carrying out a timely follow-up for the fulfillment of the contract signed with the auditing society; and (iii) has not deployed all necessary mechanisms for the audit service of the financial statements to be completed satisfactorily in order to be presented within the timeframe established in the regulatory framework,” is not supportable, since it corresponded to the company itself to demonstrate the breaking of the causal link between it and the imputed conduct, which has not been verified in the present procedure;

That, likewise, its individual annual audited financial statements and annual report with their respective annexes, corresponding to the 2023 fiscal year, were made known to the SMV only on March 12, 2025, with its deadline being April 1, 2024, that is, after more than eleven months;

That, therefore, the violation of the principle of presumption of lawfulness, also called presumption of innocence, is not verified, since for

20 On March 31, 2024, being an unworkday (Sunday), the maximum presentation deadline is considered April 1, 2024.
21 File No. 2025010524
22 NIETO GARCÍA, Alejandro. “Administrative Sanctioning Law. 4th Edition totally reformed. Madrid Tecnos.
2005. P. 424.

PERÚ Ministry of Economy and Finance

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

18 GUZMAN NAPURI, Christian. Administrative Sanctioning Procedures in Public Administration Entities. Gaceta Jurídica S.A. First Edition. May 2016. Lima. Peru. Pg. 55-56.
19 Ibid. op. cit. Pg. 61.

PERÚ Ministry of Economy and Finance

That, therefore, the violation of the principle of presumption of lawfulness, also called presumption of innocence, is not verified, since for

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"

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" Document electronically signed digitally under Law No. 27269, Law on 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 impose the sanction on MICHELL, the corresponding administrative sanctioning procedure has been followed, evaluating within it the elements that support the commission of the imputed offenses, forming conviction in the sanctioning body; That, it is concluded that in the present case the principles of causality and presumption of lawfulness have not been violated; ON THE VIOLATION OF THE BURDEN OF PROOF:
That, in line with what has been developed, there is no doubt that the burden of proof lies with the SMV, for the purpose of attributing to the regulated parties the infractions that serve as the basis for sanctioning them, which implies that to sanction, the entity must demonstrate that the regulated party committed the infraction imputed to it, which relates to what was developed by the Ministry of Justice 23 stating that: “(…) to resolve against a regulated party in an PAS it is necessary for the administration to have evidence demonstrating that the accused committed the infraction imputed to him. However, the level of proof of the accusation is that it be proven beyond all reasonable doubt”; That, however, according to what was stated above referring to Nieto García 24, it corresponds to the regulated party itself to prove the facts excluding their responsibility, which aligns with what Alarcón 25 states, as follows:
“(…) the presumption of innocence of the accused extends to the constitutive facts of the sanctioning claim and implies that the burden of proving them falls on the Administration seeking to impose the sanction. The problem will be determining whether it also covers the excluding and extinguishing facts of responsibility. That is, whether it is the Administration that, by virtue of the presumption of innocence, must prove the non-existence of the exemptions alleged by the accused or if, on the contrary, it corresponds to the latter to verify their existence because the presumption of innocence does not extend to such circumstances. Well, ordinary jurisprudence has declared that the excluding and extinguishing facts must be proven by the accused who alleges them both in the criminal process and in the administrative sanctioning procedure” (Underlining and highlighting added); That, in that sense, once the constitutive facts of the administrative infractions attributed are established, it corresponds to the regulated party to provide elements for the valuation of the subjective content of their behavior; additionally considering that for the purpose of configuring a cause not attributable to the regulated party, the event determining the non-execution of the obligation incumbent upon the latter must be extraordinary, unforeseeable and irresistible, that is, of a nature such that, in the same situation, no other regulated party could have fulfilled an identical or similar performance incumbent upon them; That, in the present case, regarding what MICHELL stated about the reason for the non-compliance with the presentation of its financial information and annual report for the 2023 exercise being due to not receiving the audit report from PWC, it would thus be accredited that it is not a situation that “was within the sphere of control of the ISSUER”; it must be taken into account that the mere fact of indicating that the auditing firm did not send the respective report does not explain, by itself, the reasons for the delay in its issuance; therefore, this Office considers that MICHELL corresponded to prove the breaking of the causal link and, consequently, the exemption of responsibility, through the evidentiary means describing the actions or measures adopted to avoid the non-compliance with its periodic information obligations, which is not observed in the present procedure; That, therefore, it corresponds to dismiss what MICHELL alleged regarding the supposed violation of the burden of proof; ON THE VIOLATION OF THE PRINCIPLE OF TRUTH AND RULES OF EVIDENCE:
That, to what was previously stated, the lawfulness of the action of the regulated parties is presumed; however, this presumption is rebutted if it is reliably proven the commission of misconduct typified in the current legal framework. On the other hand, through the principle of material truth, public authorities are obligated to fully verify the facts that constitute or motivate their acts; That, as can be observed, between the principles of material truth 26 and presumption of lawfulness 27 collected in the LPAG, there is an indivisible relationship, since, on the one hand, the administrative authority is obligated to fully verify the facts that serve as the motive for its decisions; while on the other hand, the presumption that the regulated party acts in accordance with the law only reaches until there is information evidencing the contrary; That, it is reiterated that the burden of proof is distributed as follows: it corresponds to the sanctioning body to prove the facts that constitute the administrative infraction; and, on the contrary, it corresponds to the investigated regulated party to prove the facts that may result in excluding their responsibility and, if applicable, mitigating factors; That, in the present case, regarding periodic information, the constitutive facts of the infraction have been established due to the negligent action of MICHELL, which caused the omission in the timely presentation of its audited individual annual financial statements and its corresponding audit report for the 2023 exercise, as well as the annual report of said exercise. These documents were presented only on March 12, 2025, that is, eleven months

23 MINISTRY OF JUSTICE AND HUMAN RIGHTS. Practical guide on evidentiary activity in administrative procedures, p. 43 24 See footnote 19 25 Alarcón Sotomayor L. “The presumption of innocence and the burden of proof in the administrative sanctioning procedure”, 2007, Revista Ceflegal, number 82 Page. 93

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" Document electronically signed digitally under Law No. 27269, Law on 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 after the expiration of the maximum presentation deadline, which was April 01, 2024; That, what MICHELL alleged is not supportable, since the burden of proof on the exempting conditions of responsibility, which sustain the extraordinary, irresistible and unforeseeable fact, fell on MICHELL itself, which in the present case has not been established; That, on the other hand, regarding what MICHELL manifested about the supposed “technical opinion” of the sanctioning body without being qualified to do so, it must be indicated that from the review of the SANCTION RESOLUTION, the SASCM stated the following:
“According to what was indicated, it is observed that through the significant fact of July 03, 2023, the Issuer indicated that the initial date of the audit service was September 11, 2023 (coincides with the date of designation of the auditing firm), so that considering the date of presentation of the financial information subject to charges, the service would last eight (8) months, approximately. In that sense, that period of time or similar would be considered sufficient for the audit service of the financial statements to conclude satisfactorily, provided that the Issuer has acted diligently deploying all the necessary mechanisms for that effect. However, in the present case, no evidence of these actions carried out by the Issuer has been presented. Consequently, although the Issuer alleges that the auditing society has not sent its respective report as a circumstance for an exemption of responsibility due to force majeure or fortuitous event, it must be taken into account that it had a prudent and reasonable time to deliver its audit report, so that this event alleged as the foundation of its non-compliance subject to charges does not meet the condition of extraordinary, irresistible and unforeseeable, on the contrary, it is observed that the Issuer only limits itself to arguing a circumstance alien to its will, referred to that the auditing society had not yet sent its report.” (Underlining and highlighting added); That, for the purpose of determining if the deadline set by the SASCM is “prudent and reasonable”, it must be noted that the current wording of article 38 of the Financial Information Regulation, approved by Resolution N°103-99-EF/94.10, at the time the facts occurred established the following:
“Article 38.- Deadline for the designation of Auditors Companies obliged to present audited financial information must communicate, as a significant fact, the designation of their independent auditors by June 30 of each year at the latest. Likewise, they must communicate as a significant fact the date on which the audit work will begin.”; That, the cited regulation does not establish a deadline for the start of audit activities; nevertheless, the Standards on preparation and presentation of Financial Statements and Annual Report by entities supervised by the Superintendency of the Securities Market, approved by SMV Resolution N° 016-2015-SMV/01, valid at the time the facts occurred, establish as the maximum date for presentation of annual audited information March 31. Consequently, it is concluded that the SMV regulation contemplates a maximum period of nine (9) months from the designation of auditors for the presentation of financial information; That, one can also take as reference the regulation of the Superintendency of Banks, Insurance and AFP (hereinafter, SBS), which establishes that the designation of auditors must be made by June 30 of each year at the latest, as established in article 18 28 of the External Audit Regulation, approved by SBS Resolution N° 17026 -2010. Article 4 29 of the mentioned regulation establishes that audit examinations must begin no later than ninety (90) days before the closing of the fiscal year. Finally, article 22 of the mentioned normative body establishes that audited financial statements must be presented by the last business day of February of the year following the audited exercise. Consequently, SBS entities have a maximum period of eight (8) months from the designation of auditors until the presentation of the statements; That, based on what was stated, we agree with what was manifested by the sanctioning body that the period available to the auditing society for the presentation of its report was prudent and reasonable; therefore, without verifying affectation to the principles mentioned, it corresponds to dismiss the nullity request alleged by MICHELL; ON THE VIOLATION OF DUE MOTIVATION:
That, MICHELL refers that the SANCTION RESOLUTION presents deficient motivation that does not refute the arguments presented in its defense writing and, on the contrary, leaves them unanswered, having not considered the acting of evidentiary means expressly requested by its part; That, according to the sentence of the Constitutional Court STC 06256-2013-PA/TC, motivation is a “mechanism that allows appreciating its degree of legitimacy and limiting the arbitrariness of its action”; therefore, the exposition of general formulas or empty of justification are not admissible as such; likewise, in STC 04103-2009-PA/TC of said body it has been stated that “The right to the motivation of administrative resolutions is of special relevance, since it consists of the right to certainty, which supposes the guarantee of every regulated party that sentences are motivated, that is, that there is an explicit legal reasoning between the facts and the laws that apply them (…)”;

26 “Article IV. Principles of administrative procedure (…)
1.11. Principle of material truth.- In the procedure, the competent administrative authority must fully verify the facts that serve as the motive for its decisions, for which it must adopt all the necessary evidentiary measures authorized by law, even if they have not been proposed by the regulated parties or have agreed to be exempt from them. In the case of trilateral procedures, the administrative authority will be empowered to verify by all available means the truth of the facts proposed to it by the parties, without this meaning a substitution of the probatory duty that corresponds to these. However, the administrative authority will be obliged to exercise said faculty when its pronouncement might also involve the public interest”
27 “Article 230.- Principles of administrative sanctioning power (…)
9. Presumption of lawfulness.- Entities must presume that the regulated parties have acted in accordance with their duties unless they have evidence to the contrary.”

PERÚ Ministry of Economy and Finance

30 Morón Urbina, J. “Comments on the General Administrative Procedure Law”. Gaceta Jurídica, first edition.
Lima, 2001. p.158

PERÚ Ministry of Economy and Finance

31 This text is collected in article 160 of the TUO OF THE LPAG.

PERÚ Ministry of Economy and Finance

“Article 18th.- Hiring of auditing societies Companies must hire auditing societies for the evaluation of the reasonableness of the financial statements, the evaluation of the aspects pointed out in Annex I corresponding to complementary reports, the evaluation of the internal control system in the scope of external audit, the evaluation on the compliance of patrimonial requirements, as well as global and concentration limits established in the Regulation for the Supervision of Consolidated Financial and Mixed Conglomerates at the financial group level and of each of the consolidable groups, according to what is established in this regulation, by June 30 of each year at the latest, prior approval of the General Shareholders' Meeting, the board of directors or equivalent body, according to what is pointed out in their statutes.” “Article 4th.- Minimum conditions of contracts Contracts signed with auditing societies must consider the following minimum aspects:
a) The start of external audit examinations must be carried out no later than ninety (90) days before the closing of the corresponding economic fiscal year;”

PERÚ Ministry of Economy and Finance

30 Morón Urbina, J. “Comments on the General Administrative Procedure Law”. Gaceta Jurídica, first edition.
Lima, 2001. p.158

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" Electronically signed document within 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

administrative sanctioning proceedings were not in the same procedural state, since in file No. 2023043611, the first-instance resolution had been notified, on July 03, 2024, and MICHELL filed an appeal;

That, considering that Michell has argued that in the case analyzed it is a continuous infringement, it is necessary to establish the definitions of continuous infringements and instantaneous infringements with permanent effects;

That, regarding continuous infringement, Professor Baca Oneto 32 develops the following definition: “It is a case imported from Criminal Law, where different conduct is carried out, each of which constitutes an infringement separately, but which are considered as a single infringement, provided they form part of a unitary process.(…);”. (Underlining added);

That, on the other hand, regarding instantaneous infringements with permanent effects, jurist Baca Oneto 33 states: “In these cases, the infringement produces a state of affairs contrary to the legal order, which persists. It is the case, for example, of the installation of fences in the public way contrary to what is provided by a municipal ordinance or construction without a license. In these cases, although the effects of the infringing conduct are lasting and remain over time, its consummation is instantaneous, so that the statute of limitations for the infringement must be counted from this moment.”;

That, taking into account the above, it must be specified that, in the case analyzed, we are not facing a continuous infringement since each of the sanctioning proceedings refers to distinct economic years, and their respective filing deadlines are also different; therefore, it does not correspond to treat these infringements as a single continuous infringement;

That, in reality, the omission in the filing of the annual individual audited financial statements and the corresponding annual report correspond to instantaneous infringements with permanent effects, which remain in force as long as the offender does not comply with their obligation, ceasing their effects when the offender regularizes the situation. It is relevant to note that MICHELL filed the financial statements for the 2022 fiscal year and the corresponding annual report on August 14, 2024, so the effects of the aforementioned infringements have ceased, regardless of the sanction imposed via SMV Resolution No. 036-2024-SMV/11;

That, in conclusion, a continuous infringement is not configured, and therefore, the accumulation of the proceedings in question is not appropriate; and,

Being in accordance with the provisions of numeral 26 of article 12 of the Regulations on Organization and Functions of the SMV, approved by Supreme Decree No. 216-2011-EF and its amendments;

32 BACA ONETO, Víctor. The Prescription of Infringements and its classification in the General Administrative Procedure Law (In particular, Analysis of the Cases of Permanent and Continuous Infringements. Revista Derecho & Sociedad 37, p. 269.
33 BACA ONETO, Víctor Sebastián. The prescription of infringements and its classification in the General Administrative Procedure Law. Revista de derecho y Sociedad No. 37. Lima, 2011. p 268

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" Electronically signed document within 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

RESOLVES:
Article 1º.- Declare unfounded the appeal filed by Michell y CIA. S.A. against Superintendent Adjunct Resolution SMV No. 016-2025-SMV/11.
Article 2º.- Declare the administrative route exhausted.
Article 3º.- Transmit this Resolution to Michell y CIA. S.A.
Article 4º.- Order the dissemination of this resolution on the Institutional Page of the Securities Market Superintendence on the Single Digital Platform of the Peruvian State (www.gob.pe/smv).
Register, communicate, and publish.
Zósimo Juan Pichihua Serna
Superintendent of the Securities Market

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