PERÚ Ministerio de Economía y Finanzas
SMV
Superintendencia del Mercado de Valores

“Decade of Equal Opportunities for Women and Men” "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

Superintendent Resolution No. 121-2024-SMV/02

Lima, 3 October 2024

The Superintendent of the Securities Market

WHEREAS:

File No. 2023035799 and Report No. 330-2024- SMV/06, issued by the Legal Advisory Office, as well as the arguments presented at the hearing for the use of the floor by the attorney of Fit Capital S.A.C (formerly, Fit Capital Sociedad Agente de Bolsa S.A.C);

CONSIDERING:

That, by Deputy Superintendent Resolution SMV No. 066-2023-SMV/10, hereinafter, RESOLUTION, the then authorized Fit Capital Sociedad Agente de Bolsa S.A.C.1, now Fit Capital S.A.C, hereinafter FIT CAPITAL, was sanctioned with a fine of 10 UIT equivalent to S/ 42,000.00 (Forty-two thousand and 00/100 Soles) for having incurred in one (1) infraction of a serious nature typified in Annex I, numeral 2, subsection 2.1 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, hereinafter SANCTIONS REGULATION, for not presenting to the SMV information required during an inspection and in one (1) infraction of a serious nature typified in Annex XVI, numeral 2, subsection 2.3 of the SANCTIONS REGULATION, for not complying with the provisions of article 7 of the Norms for the Prevention of Money Laundering and Financing of Terrorism, approved by CONASEV Resolution No. 033-2011-EF/94.01.1 and its amendments (hereinafter, PLAFT NORMS) on the application of due diligence with respect to its clients;

That, by brief presented on 30 November 2023, FIT CAPITAL filed an appeal against the RESOLUTION;

That, by Report No. 330-2024-SMV/06 of 14 March 2024 (hereinafter, the REPORT), the Legal Advisory Office issued an opinion on the appeal of FIT CAPITAL;

That, on 11 April 2024, FIT CAPITAL presented its arguments at the hearing for the use of the floor (hereinafter, the ARGUMENTS), on the REPORT;

[1] By Superintendent Resolution No. 098-2023-SMV/02 of 22 November 2023, it was resolved to cancel the authorization to operate as a stock brokerage firm of Fit Capital Sociedad Agente de Bolsa S.A.C., and consequently exclude it from the intermediation agents section of the Public Registry of the Securities Market. Likewise, according to Entry B00011 of item No. 11196101 of the Registry of Legal Persons of Registry Zone No. IX- Lima Headquarters of the Lima Registry Office of the National Superintendence of Public Registries – SUNARP, the current corporate name of the aforementioned legal person is Fit Capital S.A.C.

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I. ARGUMENTS OF THE APPEAL AND OF THE ARGUMENTS

That, below are succinctly set forth the arguments contained in the appeal filed by FIT CAPITAL, as well as in its ARGUMENTS:

REGARDING THE WORKING PAPERS OF THE NORMATIVE COMPLIANCE REPORT

That, FIT CAPITAL maintains that the Deputy Superintendence of Prudential Supervision (hereinafter, the SASP), in the RESOLUTION errs in analyzing the argument formulated with respect to the sufficiency of Official Letter No. 3810-2023- SMV/10.3 of 16 August 2023 (hereinafter, OFFICIAL LETTER OF CHARGES), specifically in considering 45 in which it states that the Judgment of the Constitutional Court issued in file No.1003-1998-AA/TC is not applicable to the present proceeding, since the SASP intends that the facts subject of the Judgment of the Constitutional Court fit perfectly into the facts subject of the present administrative sanctioning proceeding;

That, FIT CAPITAL states that the argument is directed to the fact that it has not included in its notification the charge of delivery of Memorandum No. 002-2019-SMV-INSP.ADCAP Securities SAB2 (hereinafter, the REQUIREMENT MEMORANDUM), which would be a key element that should have been notified together with the OFFICIAL LETTER OF CHARGES, so that it can answer it, discuss it and exercise its right of defense in an suitable and effective manner. Therefore, the questioning refers to the requirement of sufficiency of the OFFICIAL LETTER OF CHARGES and more precisely to the opportunity in which the SMV made available to FIT CAPITAL the charge of the REQUIREMENT MEMORANDUM, since it was not in file No. 2023035799 (hereinafter, the FILE) at the time of the notification of the OFFICIAL LETTER OF CHARGES, but was only included on 2 October much later than the notification of the OFFICIAL LETTER OF CHARGES, which reveals that said evidentiary element was not notified together with the OFFICIAL LETTER OF CHARGES, generating an impairment to the right of defense;

That, FIT CAPITAL points out that in recital 49 of the RESOLUTION, the SASP denies that the fact of integrating the charge of the REQUIREMENT MEMORANDUM after the notification of the CHARGE NOTICE does not imply a change or addition to it; therefore, according to the appellant, the SASP deliberately ignores the provisions of the General Administrative Procedure Law, Law No. 27444 (hereinafter, LPAG), specifically that contained in article 235, numeral 3, since through the referred notice FIT CAPITAL was notified of the facts imputed to it because the existence of a valid requirement is a necessary requirement for the occurrence of the infraction; therefore, the requirement, not having been notified together with the CHARGE NOTICE, would generate the nullity of the same and of the RESOLUTION;

That, it states that the SASP commits an error in stating that the notification of the REQUIREMENT MEMORANDUM has been acknowledged by FIT CAPITAL, citing supposed examples in recital 50 of the RESOLUTION, and, that the SASP

[2] It must be indicated that Fit Capital S.A.C, formerly Fit Capital Sociedad Agente de Bolsa, previously had the corporate name of AdCap Securities Perú Sociedad Agente de Bolsa.

in footnote number 9 reveals that there is no express acknowledgment by FIT CAPITAL of the notification of the REQUIREMENT MEMORANDUM, but rather the SASP reaches the conclusion that there is an acknowledgment to the extent that no record of opposition or observation was left in the Sustaining Minutes, that is, it attributes to FIT CAPITAL an acknowledgment based on the fact that it did not make observations, considering that no meaning can be attributed to silence unless the law has so established and that it is not possible to integrate evidentiary elements by reference into a sanctioning administrative procedure;

That, it points out that in recital 55 of the RESOLUTION, the SASP would have omitted to motivate or respond to the defense in which FIT CAPITAL states that not having timely access to the charge of the REQUIREMENT MEMORANDUM has affected its right of defense; and, that the SASP, in recital 64 of the RESOLUTION, attempts to make it believed that the charge of the REQUIREMENT MEMORANDUM was timely integrated into the FILE;

That, in relation to recitals 68 and 69 of the RESOLUTION, the SASP would have indicated that Official Letter 1748-2020-SMV/10.2 (hereinafter, the OBSERVATIONS OFFICIAL LETTER), accredits the existence of a valid information requirement; however, the REQUIREMENT MEMORANDUM was not notified in accordance with the regulatory requirements issued by the SMV itself; therefore, the fact that the OBSERVATIONS OFFICIAL LETTER has been notified through the correct channel does not remedy nor exempt the SMV from validly notifying the REQUIREMENT MEMORANDUM; therefore, there would have been no effective information requirement and there would also have been no infraction, rendering the RESOLUTION null;

That, it points out that the notification of the REQUIREMENT MEMORANDUM is subject to the grounds for curing provided in article 27 of the LPAG, which according to FIT CAPITAL is mistaken to the extent that curing will only apply in case there is notification, which would not have occurred, because the SMV failed to notify the REQUIREMENT MEMORANDUM in accordance with the provisions of the Regulation of the MVNet and SMV Virtual System, approved by SMV Resolution 010-2013-SMV/01 (hereinafter, MVNET REGULATION), given that notifications through MVNet are the only valid means through which the SMV can notify its supervised entities;

That, FIT CAPITAL points out that recital 70 of the RESOLUTION is false, since it has not made any express and indubitable acknowledgment of the notification of the REQUIREMENT MEMORANDUM; and, that in recital 72 of the RESOLUTION, the SMV arbitrarily and without motivation disregards the binding effect of the MVNET REGULATION, stating that the SMV is not obliged to notify through the MVNet system; therefore, the SASP would have repealed the imperative character of article 25 of the MVNET REGULATION. Likewise, it points out that in application of article 26 of the MVNET REGULATION, the REQUIREMENT MEMORANDUM cannot have legal effects since it was never deposited in the electronic domicile of FIT CAPITAL; therefore, as there is no valid information requirement, it is not possible to commit the infraction imputed by the SMV, and this administrative procedure should be archived;

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That, in relation to the Inspection Completion Minutes (hereinafter, COMPLETION MINUTES), FIT CAPITAL points out that said minutes leave no room for doubt, regarding the fact that there is no more information pending delivery than that which is mentioned and listed therein and that there is no argument that explains why what is stated in the COMPLETION MINUTES is not sufficient proof that there were no working papers pending delivery, or how this proof does not rebut the imputed charge; therefore, considering that the SMV itself acknowledges that there were no working papers pending delivery, the RESOLUTION must be revoked and the archiving of the sanctioning administrative procedure must be declared;

That, it adds that recital 82 of the RESOLUTION implies FIT CAPITAL's commitment to remedy the deficiencies noted in the performance of the duties of the compliance officer, but does not imply an acknowledgment that the information was not delivered to the SMV; therefore, all the flaws noted in the reasoning render the RESOLUTION null;

That, FIT CAPITAL reiterates in its ARGUMENTS that the proof of notification of the REQUIREMENT MEMORANDUM was not attached to the STATEMENT OF CHARGES, and further states that with respect to the notification of the REQUIREMENT MEMORANDUM, the MVNET REGULATION does not allow room for discretion and that the only way to proceed with personal notification is when article 27 of the MVNET REGULATION applies, that is, when there are technical problems with the MVNET system;

REGARDING PLAFT DUE DILIGENCE

That, FIT CAPITAL states with respect to recital 117 of the RESOLUTION that an infraction is constituted when the required standard is violated, that is, there exists a regulatory standard of conduct whose non-observance entails the constitution of an infraction; in the specific case, the required standard is that PLAFT due diligence on clients is performed prior to the start of the business relationship, as set forth in numeral 7.2 of article 7 of the PLAFT NORMS;

That, it states that the SASP argues that the computation period for the statute of limitations begins from the time the compliance officer performs due diligence, whereas that would not be the regulatory standard but rather the facts, since the regulatory standard is that before starting the business relationship due diligence is performed and, in the particular case, this should have been performed before 19 October 2016 and, in any event, before the signing of the new intermediation contract, that is, 28 June 2019; therefore, the SMV's power to determine the existence of an infraction was time-barred at the time of notification of the STATEMENT OF CHARGES and admitting the SMV's argument empties the procedural guarantee of the statute of limitations of content, since basically the start date of the computation is arbitrary and depends on the facts; therefore, the SMV would be able to investigate and sanction any administered entity indefinitely;

That, it states that in relation to recitals 123 to 125 of the RESOLUTION, the failure to perform due diligence on client No. 959560 does not constitute a continuing infraction as the RESOLUTION states, since the opportunity to perform due diligence on a client corresponds to a single moment in time; and, had an infraction been constituted, it should be classified as an instantaneous infraction with permanent effects, which is characterized by carrying out the infringing conduct at a certain moment, yet its effects endure over time;

That, FIT CAPITAL states that since the commission of a single infraction was imputed, it would constitute a single act that generates effects over time; therefore, pursuant to article 252, numeral 252.23 of the Single Ordered Text of the General Administrative Procedure Law, approved by Supreme Decree No. 009-2019-JUS (hereinafter, TUO DE LA LPAG), the computation of the limitation period for the power to determine the existence of infractions would begin from the day the infraction was committed and not until the alleged infraction is remedied;

That, it states that the existence of a continuing infraction was not imputed in the STATEMENT OF CHARGES, for which reason FIT CAPITAL did not have the ability to raise an adequate and effective defense in relation to this interpretation of the SMV and that this element has also not been contemplated in the report submitted by the instructing area to the SASP; consequently, the principle of sufficiency of the STATEMENT OF CHARGES would have been violated, by introducing in the RESOLUTION new classifications and different interpretations regarding the imputed infractions, affecting the right of defense and rendering the RESOLUTION null;

That, regarding the PEP status of the client with code No. 959560, it states that the SMV has not proven in any respect that he has PEP status, since the Compliance Officer's error in classifying him as a PEP cannot constitute a sufficient source to determine the existence of an infraction

That, Fit CapiTAL mentions article 2 of the PLAFT NORMS, which defines politically exposed persons (PEP) as: “Natural persons, national or foreign, who perform or who within the last five (5) years have performed prominent public functions or prominent functions in an international organization, whether in the national or foreign territory, and whose financial circumstances may be of public interest, taking into account the categories mentioned in Annex V”;

That, FIT CAPITAL states that in literal g) of Annex V of the PLAFT NORMS, in relation to military personnel, the following positions or ranks are considered PEPs:

“(…) g. General Commander of the Navy, General Commander of the Air Force, General Commander of the Army and Director General of the National Police, or similar positions in the armed forces and public security forces. (…)”

That, the appellant states that as a position that qualifies as a PEP in the Peruvian Army, there is that of General Commander and that it must be taken into account that, within the military hierarchy of the Peruvian Army, only a Division General can assume said position. Likewise, it states that in the structure of the Army

[3] The legal basis of the cited legal provision is article 233 numeral 233.2 of the LPAG.

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Peruvian law there are two (2) General Ranks: General of Division and General of Brigade; therefore, the extension of the PEP category must be understood as extending to every Army Officer holding the Rank of General;

That, FIT CAPITAL refers to item 3 of Annex V of the PLAFT NORMS, since the PEP condition could extend to the direct collaborators of the persons listed in the said annex, provided they meet the following: “(…) 3. Likewise, the direct collaborators of the persons indicated in the above list are considered PEP, provided that they are the highest authority of the institution to which they belong, understanding by “direct collaborators” those persons who follow them in the chain of command and have decision-making capacity”;

That, the appellant states that pursuant to article 9 of the Regulations of Legislative Decree 1137, the position of Chief of Staff is held by a General of Division and that, in order to hold the position of General of Division, the immediately preceding position must be that of General of Brigade;

That, FIT CAPITAL indicates that in the case of the client with code N° 959560, this client only obtained the rank of Colonel; therefore, his superiors were the Generals of Brigade and the Generals of Division, so he cannot be considered a PEP; and that this argumentation work should have been carried out by the SMV, as the instructing body in charge of rebutting the presumption of lawfulness, and that, considering the foregoing, there is no infringement because enhanced due diligence must not be applied to a person who is not a PEP, so the RESOLUTION should be revoked and its filing declared. It adds that the SASP acknowledges in recital 136 of the RESOLUTION that it made an error in classifying the present infringement; therefore, there would be a nullity defect since the facts would correspond to another type of infringement;

That, the appellant refers that it agrees with the acknowledgment made by the SMV regarding the rectification carried out on the client with code 1328611 being considered a ground for exemption from liability; however, the SASP argues that as long as there are other facts linked to the same position, specifically those linked to the client with code 959560, the exemption cannot be applied;

That, FIT CAPITAL states that their access to the MVNet system has been revoked, so they have not had access to the CASE FILE nor to its body of evidence, which would constitute a serious impairment of their right of defense, which should be considered as a nullity defect of the RESOLUTION;

That, FIT CAPITAL states in its STATEMENTS that the Compliance Officer would not have classified the client with code 959560 as a PEP; on the contrary, it indicates that the SASP used as a reference the registration form prepared by the client himself to indicate the PEP classification;

II. ANALYSIS OF THE ADMISSIBILITY OF THE APPEAL

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That, from the evaluation carried out, it has been verified that the appeal filed by FIT CAPITAL meets the requirements established in articles 1134 , 2075 , 2096 and 2117 of the LPAG;

III. ANALYSIS OF THE ARGUMENTS PRESENTED BY FIT CAPITAL

That, the arguments presented by FIT CAPITAL in its appeal are evaluated below:

REGARDING THE WORKING PAPERS OF THE REGULATORY COMPLIANCE REPORT

That, regarding the disagreement expressed by FIT CAPITAL regarding the RESOLUTION stating that the Judgment of the Constitutional Court issued in case file N° 1003-1998-AA/TC is not applicable, because it analyzes the failure to deliver information to the administered party prior to the issuance of the sanctioning resolution, a situation that is not observed in the present procedure, it must be pointed out that although the said judgment develops the constitutional scope of the right of defense, we agree with the RESOLUTION in the sense that the said judgment indeed refers to the failure to deliver information supporting the proposed sanction, a situation different from what occurs in the present case;

That, regarding FIT CAPITAL's assertion that in the present case the requirement of sufficiency of the CHARGES LETTER is not met, since the charge of delivery of the REQUEST MEMORANDUM was not included in its notification, and that this document was notified after the CHARGES LETTER, it must be pointed out that the CHARGES LETTER complies with what is established by the

[4] “ Article 113.- Requirements of Written Submissions Every written submission presented before any entity must contain the following: 1. Full names, address, and National Identity Document or foreigner's card number of the administered party, and where applicable, the capacity of representative and of the person represented. 2. The specific expression of the request, the factual grounds supporting it and, where possible, the legal grounds. 3. Place, date, signature or digital fingerprint, in case of not knowing how to sign or being unable to do so. 4. The indication of the body, entity or authority to which it is addressed, understood as such, where possible, the authority closest in rank to the user, according to the hierarchy, with jurisdiction to know and resolve it. 5. The address of the place where notifications of the procedure are to be received, when different from the actual address stated pursuant to item 1. This designation of address has effects from its indication and is presumed to subsist until its change is expressly communicated. Also, the email address or, where applicable, the electronic mailbox, in accordance with article 20 of this law. 6. The list of documents and annexes attached, as indicated in the TUPA. 7. The identification of the case file of the matter, in the case of procedures already initiated.”

[5] “Article 207. Administrative remedies 207.1 Administrative remedies are: a) Reconsideration remedy b) Appeal remedy Only where expressly established by law or legislative decree, the filing of the administrative review remedy is admissible. 207.2 The period for filing remedies is fifteen (15) peremptory days, and they must be resolved within a period of thirty (30) days, with the exception of the reconsideration remedy, which is resolved within a period of fifteen (15) days. . Exceptionally, in single-instance administrative procedures under the competence of the governing boards of regulatory bodies, the reconsideration remedy is resolved within a period of thirty (30) days.”

[6] “Article 209.- Appeal remedy The appeal remedy shall be filed when the challenge is based on a different interpretation of the evidence produced or when it concerns issues of pure law, and must be addressed to the same authority that issued the challenged act so that it may forward the action taken to the superior hierarchical authority.”

[7] "Article 211.- Requirements of the remedy The written submission of the remedy shall indicate the act against which the remedy is filed and shall comply with the other requirements provided for in article 113 of this Law. "

This article corresponds to article 221 of the TUO of the LPAG.

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paragraph 3, item 234.18 of the LPAG9, since through the said office the facts imputed to FIT CAPITAL as a charge, the classification of the infringements that such facts may constitute, and the statement of the sanctions that may be imposed on it were notified, as can be seen from the review of the CHARGE OFFICE;

That it is pertinent to mention Morón Urbina10, who states that the sufficiency of charges is infringed in any of the following cases: (i) When the Public Administration totally omits the prior formulation of charges (whether of the facts or of their respective legal classification); (ii) When the Public Administration formulates charges but with incomplete, imprecise or unclear information; (iii) When the Public Administration formulates charges, but grants a reduced term to adequately exercise the right of defense; and, (iv) When the Public Administration formulates charges for certain reasons and then bases its final decision on different facts or on a new legal classification of the facts that served as the basis for the prior formulation of charges;

That, in this regard, the following has been verified in the present case: (i) It is not observed that the prior formulation of charges has been omitted, especially since the OFFICIAL LETTER OF CHARGES clearly details the facts subject to imputation, the violated norms and the type of infraction; (ii) From the review of the OFFICIAL LETTER OF CHARGES it has been verified that it contains the respective supporting information, that is, it details all the documents on which the imputation is based, including the MEMORANDUM OF REQUIREMENT, the latter being mentioned even in the “Record of Sustentation of Reports of Regulatory Compliance for the 2018 Period of ADCAP Securities Peru Sociedad Agente de Bolsa S.A.C.” (hereinafter, RECORD OF SUSTENTATION) which has the approvals and signatures of the representatives of FIT CAPITAL, so it is not admissible to claim that the OFFICIAL LETTER OF CHARGES contains incomplete, imprecise or unclear information;

That, likewise, it must be specified that in the CASE FILE there is the documentation that supports the imputation of charges, and that the appellant could access the content of the CASE FILE at any time, by going to the offices of the SMV or requesting a copy thereof; (iii) Compliance with the terms provided in articles 16 and 17 of the SANCTIONS REGULATION has been verified so that FIT CAPITAL can adequately exercise its right of defense; and, (iv) Furthermore, the decision of the SASP is in line with the formulation of charges issued by the General Superintendence of Prudential Compliance (hereinafter, the IGCP), so it is not verified that it has been sanctioned for different facts or for a new legal classification of the facts;

That, likewise from the review of the CASE FILE, it is verified that through Official Letter No. 4478- 2023-SMV/10.3 (hereinafter, OFFICIAL LETTER 4478), the IGCP sent FIT CAPITAL the notification charge of the MEMORANDUM OF REQUIREMENT and

[8] "Article 234. Characteristics of the sanctioning procedure 234.1 For the exercise of the sanctioning power it is mandatory to have followed the legally or regulatory established procedure characterized by: (…) 3. Notifying the administered parties of the facts imputed as charges, the classification of the infractions that such facts may constitute and the statement of the sanctions that, where applicable, could be imposed on them, as well as the competent authority to impose the sanction and the norm that attributes such competence.”

[9] Set forth in subsection 3, numeral 254.1, article 254 of the TUO OF THE LPAG.

[10] MORON URBINA, Juan Carlos. “Comments on the Law of General Administrative Procedure” 14th Edition, VOLUME I, 2019. Gaceta Jurídica Publishing House, pages 499-500.

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indicated that said document was in file 2019042774, corresponding to the inspection carried out on FIT CAPITAL, thereby establishing that the REQUISITION MEMORANDUM, physically notified on 14 November 2019, was not a document unknown to FIT CAPITAL;

That, FIT CAPITAL has reiterated in its appeal brief and ARGUMENTS, that the questioning lies in the sufficiency of the STATEMENT OF CHARGES, since the REQUISITION MEMORANDUM, as a key evidentiary element for the imputation, was notified outside the defense stage, at which point it was no longer possible to exercise an adequate defense, violating the right of defense; however, as indicated in the preceding paragraphs, the notification of the REQUISITION MEMORANDUM was not a document unknown to FIT CAPITAL, having also been received physically by the appellant on 14 November 2019, therefore it is concluded that the STATEMENT OF CHARGES contained all the elements supporting the imputation, including the REQUISITION MEMORANDUM, as can be seen from the extract of the STATEMENT OF CHARGES whose image is copied below:

That, it has been established that FIT CAPITAL had

knowledge of all the documents supporting the imputation; therefore, no violation of the sufficiency of the STATEMENT OF CHARGES is verified, also considering that the appellant had the possibility to expand and/or modify what was stated in its defense with the notification of OFFICIAL LETTER 4478 and/or during its arguments, likewise it has been verified that the documents, facts and legal qualifications supporting the imputation were known to the appellant, so it is appropriate to dismiss its claim in that regard; That, with respect to FIT CAPITAL's argument that the SASP deliberately ignores the provision of article 235 numeral 3 11 of the LPAG, since a valid requirement is required and such requirement was not notified together with the STATEMENT OF CHARGES;

11 "Article 235. Sanctioning Procedure Entities in the exercise of their sanctioning power adhere to the following provisions: (…) 3. Once the initiation of the sanctioning procedure is decided, the instructing authority of the procedure formulates the respective notification of charges to the possible sanctioned party, which must contain the data referred to in numeral 3 of the preceding article so that it presents its defenses in writing within a period that may not be less than five business days counted from the date of notification." Reflected in article 255 numeral 3 of the TUO OF THE LPAG. it must be indicated that from the review carried out no contravention of the stipulations in the mentioned article has been verified, since as previously indicated, the STATEMENT OF CHARGES contained all the facts supporting the imputation, the qualification of the infractions and the expression of the sanctions that, if applicable, could be imposed, as well as the competent authority to impose the sanction and the norm that attributes such competence. Therefore, no nullity defect has been generated as the appellant claims to sustain in its appeal;

That, regarding the acknowledgment of the notification of the REQUISITION MEMORANDUM by FIT CAPITAL, the appellant maintains that there is no express and indubitable acknowledgment and that it is not possible to integrate evidentiary elements by reference into an administrative sanctioning procedure; however, from the review of the SUPPORTING MINUTES, we agree with what was stated by the SASP in the RESOLUTION, in the sense that in the mentioned SUPPORTING MINUTES signed by representatives of FIT CAPITAL and officials of the SMV, it was recorded that the review of what was requested through the REQUISITION MEMORANDUM was carried out, without any opposition from FIT CAPITAL, that is, although it could have manifested its unawareness of the referred REQUISITION MEMORANDUM and therefore, its disagreement with what was stated in the referred minutes, it did not do so, which implies its conformity with its content. Likewise, it has been verified that in FIT CAPITAL's response to the OFFICIAL LETTER OF OBSERVATIONS, the appellant's representatives were fully aware of the incidents noted during the inspection, among others, the non-presentation of the working papers subject of this analysis, as stated in the document FITCAPITAL/GG-028-2020 of 23 July 2020, whose image is copied below:

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That, regarding what was stated by the appellant, in relation to the fact that the SASP in recitals 54, 55 and 64 of the RESOLUTION, would have omitted to motivate or respond about the timely access of the appellant to the charge of the REQUISITION MEMORANDUM, which would have affected its right of defense and attempting to make believe that the mentioned notification charge was timely integrated into the FILE; it must be noted that, as indicated in the preceding paragraphs, the notification charge of the REQUISITION MEMORANDUM was not a document unknown to the appellant, even more so if it was personally notified, as is done in inspection procedures and therefore, it is in the file of the inspection carried out on FIT CAPITAL. Likewise, as previously indicated, it has been proven that in the ACTA DE SUSTENTACIÓN it was recorded the review carried out on what was requested through the MEMORÁNDUM DE REQUERIMIENTO, the same one that bears the signature of the appellant's representatives;

That, furthermore, it must be highlighted that as verified in the acknowledgment of receipt of the MEMORÁNDUM DE REQUERIMIENTO, it was notified physically to FIT CAPITAL on 14 November 2019, and it must also be indicated that this situation is mentioned in the OFICIO DE CARGOS and in Report No. 38-2020-SMV/10.212;

That, regarding the appellant's claim that the MEMORÁNDUM DE REQUERIMIENTO was not notified as established in article 2513 of the REGLAMENTO MVNET, which does not allow discretion and that the only way to proceed with personal notification is when article 27 of the REGLAMENTO MVNET applies; therefore the RESOLUCIÓN would be null and void, it must be pointed out that, from a comprehensive reading of the REGLAMENTO MVNET, especially article 1314 and article 25, it is noted that the information referred to in article 25 refers to information that the SMV sends to obligated entities via MVNET through the options enabled in said system, options for mandatory information, for the use of procedures and services - TUPA, for consultation of notifications, for knowledge of sanctioning procedures, for processing specific and general requests, for regularization or additional documentation, and does not contemplate its use for notifications of communications during inspections, in which there is direct contact between the administered party and the inspection team; therefore, notification via MVNET is not required for the case of the MEMORÁNDUM DE REQUERIMIENTO, as it is for the notification of the OFICIO DE CARGOS;

That, notwithstanding the foregoing, in the denied case that MVNET were considered the channel through which the MEMORÁNDUM DE REQUERIMIENTO should have been notified, it should be considered that, pursuant to numeral 1 of article II15 of the Preliminary Title of the LPAG, the aforementioned Law contains common rules for the actions of the administrative function of the State and regulates all administrative procedures developed in the entities, including special procedures; likewise, pursuant to numeral 1 of article VIII16 of the Preliminary Title of the LPAG, administrative authorities cannot fail to resolve the

[12] Inspection Report Adcap Sab issued on 9 January 2020, which serves as the basis for the Oficio de Cargos.

[13] Article 25.- Notifications via MVNet The information that the SMV sends to obligated entities via MVNet must be sent to their respective electronic address. The SMV will notify the obligated entities through MVNet. The SMV will only notify by physical means when the third paragraph of article 27 applies.”

[14] Article 13.- Of the options enabled in MVNet MVNet offers the following options to obligated entities: a) For mandatory information.- contains all the options referring to the sending of information that, according to the regulatory framework, obligated entities must submit to the SMV. b) For the use of procedures and services - TUPA.- contains the options for processing, through MVNet, a service or procedure that concludes with an administrative act. c) For consultation of notifications.- contains the outbox for sending notifications and the response to them, which must be made with information on the file number and mention of the type of document notified. d) For knowledge of sanctioning procedures.- contains the respective notifications associated with the sanctioning procedure. The entity will receive the notification and submit its defenses in the same file and document number. e) For the processing of specific and general requests.- contains an option to send requests that are not contemplated in the previous options. f) For regularization or additional documentation.- contains the outbox for sending regularized documents, or documents complementary to an existing electronic file.

[15] "Article II.- Content 1. This Law contains common rules for the actions of the administrative function of the State and regulates all administrative procedures developed in the entities, including special procedures. Collected in numeral 1 of article II of the Preliminary Title of the TUO DE LA LPAG.

[16] Article VIII.- Deficiency of sources 1. Administrative authorities may not fail to resolve the questions proposed to them due to deficiency of their sources; in such cases, they shall resort to the principles of the administrative procedure provided for in this Law; failing that, to other supplementary sources of administrative law, and only subsidiarily to these, to the rules of other legal systems that are compatible with their nature and purpose. Collected in numeral 1 of article VIII of the Preliminary Title of the TUO DE LA LPAG.

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questions proposed to them due to deficiency of their sources, in such cases, one must resort to the principles of the administrative procedure, therefore, in the present case the principles of celerity17 and effectiveness18 would be applicable;

That, in that sense, article 27 of the LPAG19 establishes that defective notification due to omission of any of its content requirements will have legal effects from the date on which the interested party expressly states having received it, if there is no evidence to the contrary. Likewise, the administered party shall be deemed duly notified from the procedural actions of the interested party that reasonably allow the assumption that they had timely knowledge of the content or scope of the resolution, or file any appropriate appeal;

That, for his part, Juan Carlos Morón20 points out that “Maintaining absolutely the sanction of nullity for those notifications certainly vitiated in a formal manner is affective to the principles of celerity and administrative efficacy in cases where it is clearly evident that the interested party has not been led to a state of defenselessness. It would mean carrying out an inconducive ritualism contrary to the principle of celerity, obliging in such cases the Administration to repeat such acts, although invalid but effective. The declaration of knowledge of a defectively notified act made by the administered party itself is recognized as an enabling element to consider a notification vitiated in its origin as cured. (…)” (Underline added);

That, in that sense, in the denied assumption that it was considered that the REQUERIMIENTO MEMORANDUM should have been notified in accordance with article 25 of the MVNET REGULATION, we agree with what was indicated by the SASP in the RESOLUTION, regarding the fact that this formal procedure could not invalidate what is indicated in article 2021 of the LPAG, in which personal notification to the administered party is admitted;

That, likewise, in accordance with what is indicated in the previous paragraph, emptying of content an act that was not notified at the electronic domicile, despite the fact that the administered party has not been put in a state of defenselessness, would affect the

[17] Principle of celerity.- Those who participate in the procedure must adjust their actions in such a way that the procedure is given the maximum possible dynamism, avoiding procedural actions that hinder its development or constitute mere formalisms, in order to reach a decision in reasonable time, without this relieving the authorities of respect for due procedure or violating the legal order.

[18] Principle of efficacy.- The subjects of the administrative procedure must make prevail the fulfillment of the purpose of the procedural act, over those formalisms whose realization does not affect its validity, do not determine important aspects in the final decision, do not diminish the guarantees of the procedure, nor cause defenselessness to the administered parties.

[19] “Article 27.- Curing of defective notifications 27.1 The defective notification due to omission of any of its content requirements shall have legal effects from the date on which the interested party expressly states having received it, if there is no evidence to the contrary. 27.2 The administered party shall also be deemed duly notified from the realization of procedural actions of the interested party that reasonably allow the assumption that they had timely knowledge of the content or scope of the resolution, or file any appropriate appeal. The request for notification made by the administered party, so that any decision of the authority is communicated to them, is not considered as such.

[20] Collected in article 27 of the TUO OF THE LPAG 20 MORON URBINA, Juan Carlos. “Comments to the General Administrative Procedure Law” 14th Edition, VOLUME I, 2019. Editorial Gaceta Jurídica, pages 324-325.

[21] "Article 20. Modalities of notification 20.1 Notifications shall be made through the following modalities, according to this respective order of precedence: 20.1.1 Personal notification to the administered interested party or affected party, at their domicile. 20.1.2 By telegram, certified mail, telefax; or any other means that allows reliably verifying its acknowledgment of receipt and who receives it, provided that the use of any of these means had been expressly requested by the administered party.” 20.1.3 By publication in the Official Gazette or in one of the newspapers with the largest circulation in the national territory, unless otherwise provided by law. In addition, the competent authority shall order the publication of the act on the respective Institutional Portal, if the entity has this mechanism. (…)” Collected in article 20 of the TUO OF THE LPAG.

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principles of celerity and administrative efficacy; therefore, the application of the curing of defective notifications would correspond;

That, it has been demonstrated in the present sanctioning procedure that FIT CAPITAL was physically notified on 14 November 2019, in accordance with the notification receipt of said document in the file of the inspection carried out on the appellant and that it had knowledge of what was requested in the REQUERIMIENTO MEMORANDUM, having carried out various positive and conclusive acts such as the signing of the SUSTENTACIÓN ACT and the response to the OBSERVATIONS OFFICIAL LETTER;

That, therefore, having been accredited in the present administrative procedure that the appellant had knowledge of the REQUERIMIENTO MEMORANDUM, in accordance with what is indicated in the SUSTENTACIÓN ACT and the appellant's response to the OBSERVATIONS OFFICIAL LETTER, as well as the fact that the REQUERIMIENTO MEMORANDUM was notified physically on 14 November 2019, as verified from the review of the referred document in which the corresponding reception receipt appears, a fact that cannot be denied by the appellant since there is evidence in this regard, the request for nullity raised by the appellant is not admissible;

That, on the other hand, regarding what was stated by FIT CAPITAL, that the FINALIZATION RECORD leaves no room for doubt that there is no further information pending delivery other than that which is mentioned and listed therein and that the SMV itself acknowledges that there were no pending work papers to be delivered; it must be noted that we agree with the SASP, in that the appellant starts from an incomplete reading of the FINALIZATION RECORD and from ignorance of the SUPPORTING RECORD and the OBSERVATIONS OFFICIAL LETTER, by means of which FIT CAPITAL is informed of the issues noted during the inspection;

That, the FINALIZATION RECORD states that the results obtained have been communicated verbally to the representatives of FIT CAPITAL and that the SMV will formally inform them of the details thereof, as shown below:

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PERU Ministry of Economy and Finance
SMV
Superintendency of the Market of Securities
“Decade of Equal Opportunities for Women and Men” "Year of the Bicentennial, of the consolidation of our Independence, and of the commemoration of the heroic battles of Junín and Ayacucho"

That, by means of the OBSERVATIONS OFFICIAL LETTER, notified on 4 June 2020, FIT CAPITAL was informed of the issues detected, among them, the non-presentation of the work papers and other supporting documentation of the compliance report corresponding to the fourth quarter of 2018; therefore, what was stated by the appellant that there were no pending work papers to be delivered is not admissible, even more so if FIT CAPITAL has not proven during the sanctioning procedure the presentation of the required information;

That, since no omission in the delivery of information has been verified, nor violation of the right of defense and/or the principle of procedural good faith manifested by FIT CAPITAL, nor has the existence of any ground for nullity of the RESOLUTION been proven, it is appropriate to dismiss what was indicated in that regard;

REGARDING PLAFT DUE DILIGENCE

That, in relation to what was stated by FIT CAPITAL, regarding that the administration's power to determine the existence of infractions was time-barred at the time of notification of the OFFICIAL LETTER OF CHARGES, and would not constitute a continuing infraction, but rather an instantaneous infraction with permanent effects, it is convenient to develop the difference between these types of infractions;

That, as regards the continuing infraction, professor Baca Oneto22 develops the following definition:

“It is a case imported from Criminal Law, where different conducts are carried out, each of which separately constitutes an infraction, but which are considered as a single infraction, as long as they form part of a unitary process.(…);”. (Underline added);

That, on the other hand, in instantaneous infractions with permanent effects, the computation of the statute of limitations begins to run from the moment the infraction was committed, regardless of the fact that its effects remain over time. In that sense, Baca Oneto23 states:

“In these cases, the infraction produces a state of affairs contrary to the legal system, which is maintained. This is the case, for example, of the installation of grilles on public roads against the provisions of a municipal ordinance or construction without a license. In these cases, although the effects of the infracting conduct are lasting and remain over time, the consummation thereof is instantaneous, so it is from this moment that the statute of limitations period for the infraction must be counted”;

[22] BACA ONETO, Víctor. The Statute of Limitations of Infractions and their classification in the Law of the General Administrative Procedure (In particular, Analysis of the Cases of Permanent and Continuing Infractions. Revista Derecho & Sociedad 37, p. 269.

[23] Ibidem. Op.cit. It is also stated that “instantaneous infraction with permanent effects” is understood in Superintendency Resolution 058-2016-SMV/02.

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That, in the present case, we agree with what was stated by the SASP in recital 114 of the RESOLUTION, regarding that FIT CAPITAL had the obligation to keep updated the documents, data and information collected from the client as part of the due diligence process, in accordance with section 7.324 of the Manual for the prevention of money laundering and terrorist financing, in force at the date of the events, (hereinafter, PLAFT MANUAL), as well as article 7, numeral 7.1, subsection V, of the PLAFT NORMS;

That, in that sense, the application of customer due diligence with code No. 959560 had to be carried out at the beginning of the business relationship and when updating the client's information; however, as developed in recitals 119 and 120 of the RESOLUTION, this process is not limited to the signing of a new intermediation contract, but includes other steps and the use of different systems;

That, upon noticing the commission of different conducts, which infringed the provisions of article 7 of the NORMAS PLAFT, but which form part of a single process and which have been carried out by the same active subject (FIT CAPITAL), this infringement qualifies as a continuing infringement and not as an instantaneous infringement with permanent effects; therefore, the calculation of the statute of limitations is considered from the remediation of the non-compliances, which in the present case has not been accredited;

That, with respect to the argument made by the appellant that the existence of a continuing infringement was not charged in the OFICIO DE CARGOS and that said element was not contemplated in the INFORME DE INSTRUCCIÓN, and therefore the principle of sufficiency of the OFICIO DE CARGOS would have been violated; it must be reiterated that the OFICIO DE CARGOS complied with the provisions of numeral 3 of article 235 of the LPAG, that is, it contained all the facts that supported the charge, the qualification of the infringements and the expression of the sanctions that, if applicable, could be imposed, as well as the competent authority to impose the sanction and the norm that attributes such competence, so it was not necessary to expressly mention that the charged infringement qualified as a continuing infringement, even more so if the aforementioned qualification made by the sanctioning body does not constitute a fact different from those determined in the course of this sanctioning procedure, so what was stated by the appellant is not admissible;

That, in relation to what was stated by FIT CAPITAL that the SMV has not accredited in any respect that the client with code No. 959560 has the status of PEP, and that the error of the Compliance Officer in classifying him as a PEP cannot constitute a sufficient source to determine the existence of an infringement; therefore, in the case of said client, having obtained the rank of Colonel, it is not appropriate to consider him as a PEP and, consequently, it would be appropriate to revoke the RESOLUTION and declare its archiving, it must be specified that the PEP status of the aforementioned client has been evaluated by the Corporate Compliance Officer of the appellant, in accordance with the document called “Proceso de determinación de perfil de riesgo PLAFT”, so it was appropriate to apply the due diligence procedure;

[24] “For the verification of the information and validation of the data recorded in the Intermediation Contract, it will be carried out by the Compliance Officer; the updating of the Clients' Intermediation Contracts will be carried out every year.”

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That, contrary to what was indicated in the previous paragraph, FIT CAPITAL in its ARGUMENTS has stated that the Compliance Officer would not have classified the client with code No. 959560 as a PEP and that the SASP would have taken as reference the registration form prepared by the client himself to indicate the PEP classification;

That, in this regard, it must be indicated that in accordance with numeral 7.225 of article 7 of the NORMAS PLAFT, obligated subjects must develop policies and procedures aimed at obtaining adequate knowledge of the identity of their clients, including the processing of forms to be completed by them; for such purposes, clients must be requested to present public or private documents in order to obtain and verify the information provided even before starting the business relationship and to keep it updated; in that sense, it is not admissible for FIT CAPITAL to seek to exempt itself from responsibility by stating that the SASP would have sanctioned based on the information prepared by the client himself, taking into consideration that in accordance with literal l) of numeral 7.2 of article 7 of the NORMAS PLAFT, it is the responsibility of obligated subjects to verify, in a reliable manner, whether or not the natural person is a person classified as a PEP;

That, in that sense, in section 7.126 of the MANUAL PLAFT, the due diligence procedure for client knowledge prepared by FIT CAPITAL is established, which includes the stages of identification, verification and monitoring; likewise, it is stated that FIT CAPITAL will maintain responsibility for the due diligence process in the knowledge of the client and the final beneficiary, so what was stated by FIT CAPITAL in its Arguments lacks support since it is the responsibility of the obligated subjects27, in this case of FIT CAPITAL, to carry out due diligence in client knowledge and to identify the natural persons who qualify as PEP;

[25] “7.2 Obligated subjects must develop policies and procedures aimed at obtaining adequate knowledge of the identity of their clients, including the processing of forms to be completed by them. For such purposes, clients must be requested to present public or private documents, in accordance with the Law and the Regulation, in order to obtain the information indicated below, verify the information provided even before starting the business relationship and keep it updated”

[26] “7.1 Obligated subjects, under responsibility, must: (i) Identify the client and verify said identity using documents, data or information that are reliable and from sources independent of the client. (ii) Identify the final beneficiary by adopting reasonable measures to verify their identity. In the case of legal entity clients or other legal structures, this must include understanding their ownership and control structure. (iii) Obtain information, where applicable, in order to know the purpose and nature of the business relationship; and, (iv) Conduct ongoing due diligence of the business relationship and examine the transactions carried out or attempted to be carried out throughout that relationship, so that they are consistent with its knowledge of the client, the business and its risk profile, including the source of funds, when necessary. (v) Keep updated the documents, data and information collected under a client due diligence process, by reviewing existing records, especially in the case of clients included in high-risk categories.”

[27] PLAFT NORMS “Article 1.- Scope of application The Norms for the Prevention of Money Laundering and Terrorist Financing are applicable to the following obligated subjects: i) stock brokerage firms, ii) securities intermediary firms, iii) mutual fund management companies for investment in securities, iv) investment fund management companies, v) securitization companies, vi) stock exchanges, vii) securities clearing and settlement institutions, viii) collective fund management companies; as well as any other subject, with operating authorization granted by the SMV, indicated in the Law or incorporated by the UIF-Peru through SBS Resolution.”

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That, likewise, it is noteworthy that, according to article 2, literal s28 and numeral 4 of Annex V of the PLAFT NORMS29, obligated subjects may consider as PEP other natural persons who, without being included in the list of functions and positions held by PEP in matters of prevention of money laundering and terrorist financing, have characteristics similar to any of the persons mentioned in Annex V of the PLAFT NORMS;

That, therefore, it was not up to the SMV to carry out the analysis of the PEP status of its clients, but rather the same Corporate Compliance Officer had to proceed with the rectification during the inspection or as part of the correction of the observations, considering, as established in article 10 of the Securities Market Law, Legislative Decree No. 861 and its amendments, that all information made available to the SMV must be truthful, sufficient and timely;

That, taking into account the foregoing, we disagree with what the appellant states regarding that the SMV has not proven in any respect that it has PEP status, since such accreditation does not correspond to the SMV, even less so if it is taken into account that it is the company itself that chose to classify it as PEP, a prerogative granted by the PLAFT NORMS as we have indicated above;

That, it is not admissible for the appellant to seek to delegate the analysis of the application of due diligence of its clients, as a responsibility of the SMV, in order to avoid the imputation of an infraction and request the archiving of the administrative sanctioning procedure;

That, regarding the appellant's argument, in the sense that the SASP in recital 13630 of the RESOLUTION, would have recognized an error in the classification of this infraction, so there would be a defect of nullity; it must be noted that this is not true, since in said recital only the importance of the veracity and integrity of the information submitted by the obligated subjects is highlighted, and it is specified that the sanction for incurring this type of infraction is very serious and consequently is sanctioned more severely;

That, finally, in relation to what FIT CAPITAL states regarding that its access to the MVNET system would have been withdrawn, so it would not have had access to the FILE, nor to its evidentiary body, which should be

[28] “Article 2.- Definitions (…) s) Politically exposed persons (PEP): Natural persons, national or foreign, who perform or who in the last five (5) years have performed prominent public functions or prominent functions in an international organization, whether in the national or foreign territory, and whose financial circumstances may be subject to public interest, the categories mentioned in Annex V being considered. (…)”

[29] “ANNEX V LIST OF FUNCTIONS AND POSITIONS HELD BY POLITICALLY EXPOSED PERSONS (PEP) IN MATTERS OF PREVENTION OF MONEY LAUNDERING AND TERRORIST FINANCING (…) 4. Obligated subjects may consider other natural persons who, without being included in the referred list, have characteristics similar to any of the persons mentioned in this annex.”

[30] Deputy Superintendent Resolution No. 066-2023-SMV/10 “(…) 136 In this order of ideas, and given the importance of the veracity and integrity of information that obligated subjects must provide, the submission of inaccurate, false or biased information is classified as a very serious infraction and consequently is sanctioned more severely than incurring in acts or omissions that constitute non-compliance with any of the provisions established in the regulations for the prevention of money laundering and terrorist financing.”

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considered as a ground for nullity of the RESOLUTION; it must be specified that FIT CAPITAL, by Superintendente Resolution No. 098-2023-SMV/02, had its operating authorization cancelled, so, as it does not qualify as an entity obligated to use the MVNET, said system was withdrawn from it and as of 27 November 2023 it was granted access to the virtual SMV. In that regard, from the review of the documentation of this administrative sanctioning proceeding, it has been verified that the appellant was notified in accordance with the MVNET system as recorded in the notification charges of the documentation issued during the first instance, including the RESOLUTION, so, as the appellant has not substantiated its claim, it must be dismissed; and,

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

RESOLVES:

Article 1.- Declare unfounded the appeal filed by Fit Capital S.A.C (formerly Fit Capital Sociedad Agente de Bolsa S.A.C), against Superintendencia Adjunta SMV Resolution No. 066-2023-SMV/10.

Article 2.- Consider the administrative remedy exhausted.

Article 3.- Transcribe this resolution to Fit Capital S.A.C. (formerly Fit Capital Sociedad Agente de Bolsa S.A.C)

Article 4.- Order the dissemination of this resolution on the Institutional Page of the Superintendencia del Mercado de Valores 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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