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. 128-2024-SMV/02

Lima, 16 October 2024

The Superintendent of the Securities Market

WHEREAS:

File No. 2021006263 and Report No. 1278-2024-SMV/06, from the Legal Advisory Office, by which it issues an opinion on the appeal filed by Plan Rentable Perú S.A.C. (formerly Plan Rentable Perú S.A.C. EAFC, and hereinafter, PLAN RENTABLE) 1 against Deputy Superintendent Resolution SMV No. 072-2023-SMV/10, which resolves the reconsideration appeal filed against Deputy Superintendent Resolution SMV No. 047-2021-SMV/10;

CONSIDERING:

That, by Deputy Superintendent Resolution SMV No. 047-2021-SMV/10 (hereinafter, SANCTION RESOLUTION), the Deputy Superintendency of Prudential Supervision (hereinafter, SASP), resolved to sanction PLAN RENTABLE with a fine of four (4) UIT for having incurred an infraction of a serious nature typified in Annex XIII, numeral 2, subsection 2.16 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), for not having complied with the collective funds administration contract, specifically regarding the right of the eligible member to participate in the Award Assemblies;

That, by document presented on 6 December 2021, PLAN RENTABLE filed a reconsideration appeal against the SANCTION RESOLUTION, which was declared unfounded, by Deputy Superintendent Resolution SMV No. 072-2023-SMV/10 (hereinafter, RECONSIDERATION RESOLUTION);

That, by document presented on 15 January 2024, PLAN RENTABLE filed an appeal against the RECONSIDERATION RESOLUTION;

That, by Report No. 1278-2024-SMV/06 of 30 September 2024 (hereinafter, REPORT), the Legal Advisory Office issued an opinion on the appeal filed by PLAN RENTABLE. The REPORT was brought to the attention of PLAN RENTABLE by Official Letter No. 4394-2024-SMV/14 of 1 October 2024, so that, if it deems appropriate, it may submit its arguments;

[1] By Superintendent Resolution No. 093-2023-SMV/02, the operating authorization of PLAN RENTABLE was revoked. Likewise, its name change was registered in entry B00023 of Electronic File No. 13311931 of the Registry of Legal Persons of Registry Zone IX – Lima Office – SUNARP, changing its name to PLAN RENTABLE PERÚ SAC.

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

That, by document presented on 9 October 2024, PLAN RENTABLE submitted its arguments (hereinafter, ARGUMENTS);

I. ARGUMENTS OF THE APPEAL

That, below, the arguments of the appeal filed by PLAN RENTABLE are succinctly stated:

That, PLAN RENTABLE states that the RECONSIDERATION RESOLUTION is null because its reconsideration document, which was presented on 6 December 2021, was "provided" on 15 December 2023, that is, it would have had a delay of two (2) years and nine (9) days; without knowing the reason for the delay, which would have generated discomfort for not complying with the deadlines established not only in internal regulations of the Superintendency of the Securities Market, (hereinafter SMV), but in the laws dictated for such purpose;

That, on the other hand, regarding the RECONSIDERATION RESOLUTION, PLAN RENTABLE states that it does not consider it fair to be sanctioned for situations that are not in accordance with the Collective Funds Administration Contract No. 0013572, approved by the SMV and signed with a member, (hereinafter CONTRACT), since the following would be taken as a basis for sanctioning it: i) That the member has paid outside the term established by the CONTRACT; ii) That the beneficial treatment for some members is intended to be imposed as an obligation for all members; iii) That the payment of the members is not allowed to be made within the term established by the CONTRACT, but rather other dates are intended to be applied; and, iv) That the provisions dictated to all members are not intended to be respected;

That, likewise PLAN RENTABLE specifies that the CONTRACT states that for the member to be considered eligible, they must pay or deposit their dues up to two (2) business days before the assembly is held; however, in the case analyzed, its member made the corresponding deposit outside said term;

That, in that sense, in its ARGUMENTS, PLAN RENTABLE indicates that as noted in the proof of deposit made by the member, the deposit is not identified, since it entered the general account of the company, which resulted in its collections department not being aware of who corresponded to said payment. Likewise, PLAN RENTABLE mentions that the members were informed that once they make the deposits they should send them, in order to be confirmed by its collections department, since some people do not identify their payments;

That, in its ALLEGATIONS PLAN RENTABLE states that, according to the CONTRACT, the associate could make the payment until 2 September 2020, however it was made on 3 September 2020, as can be seen from the copy of the screenshot of the WhatsApp of the communications made with the associate, as well as from the copy of the report of the Internet Banking application with the operation corresponding to the payment;

[2] Of the Special Program Plan 60 corresponding to group No. 6004 for obtaining a Purchase Certificate for US$ 10,000.00 (Ten thousand and 00/100 US dollars), whose model was approved by Resolution of the General Superintendence of Supervision of Entities No. 146-2017-SMV/10.2, dated 16 October 2017.

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

PERU Ministry of Economy and Finance
SMV
Superintendence 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, PLAN RENTABLE also points out that, although its personnel try to give benefits to some associates, and to help everyone, that does not mean that the CONTRACT or Regulation of the System of Collective Funds and their Managing Companies, approved by SMV Resolution No. 020-2014-SMV/01 (hereinafter, REGLAMENTO EAFC), ceases to be respected;

That, on the other hand, PLAN RENTABLE points out that with the imposition of the fine, it would be giving to understand that the CONTRACT should not be respected, which contravenes internal and external administrative norms;

II. ANALYSIS OF THE ADMISSIBILITY OF THE APPEAL

That, from the evaluation carried out in accordance with the documents in the present file, the appeal filed complies with the requirements established in articles 1133, 2074, 2095 and 2116 of Law No. 27444, Law of General Administrative Procedure (hereinafter, LPAG), and was filed within the term of fifteen (15) business days counted from the notification of the RESOLUTION OF RECONSIDERATION;

III. EVALUATION OF THE ARGUMENTS PRESENTED

That, in relation to what was stated by PLAN RENTABLE regarding that its reconsideration brief entered the SMV on 06 December 2021 and was resolved only on 15 December 2023, so that said resolution would be null, although in the present case the term established in the

[3] "Article 113.- Requirements of the writings Every writing presented before any entity must contain the following: 1. Full names and surnames, domicile and number of National Identity Document or foreigner's card of the administered, and, where applicable, the capacity of representative and of the person represented. 2. The concrete expression of what is requested, the factual grounds supporting it and, when possible, the legal grounds. 3. Place, date, signature or digital fingerprint, in case of not knowing how to sign or being impeded. 4. The indication of the organ, entity or authority to which it is addressed, understanding as such, as far as possible, the authority of the grade closest to the user, according to the hierarchy, with competence to know and resolve it. 5. The address of the place where notifications of the procedure are to be received, when different from the real domicile stated by virtue of numeral 1. This designation of domicile has effects from its indication and is presumed subsistent, as long as its change is not expressly communicated. Likewise, the electronic mail or, if applicable, the electronic mailbox, in accordance with article 20 of the present law. 6. The list of documents and annexes accompanying it, indicated in the TUPA. 7. The identification of the file of the matter, in the case of procedures already initiated."

[4] "Article 207. Administrative resources 207.1 The administrative resources are: a) Reconsideration resource b) Appeal resource Only in case that by law or legislative decree the filing of the administrative resource of review is expressly established. 207.2 The term for the filing of the resources is fifteen (15) peremptory days, and they must be resolved within thirty (30) days except for the reconsideration resource which is resolved within fifteen (15) days. Exceptionally, in the administrative procedures of single instance of competence of the directive councils of the regulatory organisms, the reconsideration resource is resolved within thirty (30) days."

[5] "Article 209.- Appeal resource The appeal resource shall be filed when the challenge is based on a different interpretation of the evidence produced or when it deals with questions of pure law, and must be addressed to the same authority that issued the act being challenged so that it elevates the proceedings to the hierarchical superior."

The reference of this article in the Single Ordered Text of the LPAG, approved by Supreme Decree No. 004-2019-JUS (hereinafter TUO LPAG) is located in article 220.

[6] "Article 211.- Requirements of the resource The writing of the resource must indicate the act being appealed and comply with the other requirements provided in article 113 of the present Law."

PERU Ministry of Economy and Finance
SMV
Superintendence 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"

numeral 207.2 of article 207 of the LPAG, which provides that the term to resolve reconsideration appeals is fifteen (15) business days for public entities such as the SMV, such a situation does not determine the nullity of such administrative act, as provided in numeral 140.3 of article 1407 of the LPAG, which establishes:

“Article 140.- Effects of the expiration of the term (…) 140.3 The expiration of the term to comply with an act in charge of the Administration does not exempt it from its obligations established in accordance with public order. Administrative action outside the term is not affected by nullity, unless the law expressly provides so due to the peremptory nature of the term. (…)”

That, in this regard, Juan Carlos Morón points out that “In all these cases, the passage of time does not cause for the Administration the release from the duty to resolve the file, nor does it originate the nullity of extemporaneous actions, but only disciplinary sanctions for the reluctant or negligent official.”8 ;

That, in that sense, this office considers that it does not correspond to declare the nullity of the RECONSIDERATION RESOLUTION, in accordance with the analyzed regulatory framework;

That, on the other hand, it corresponds to mention that, in the analyzed case, PLAN RENTABLE could resort to mechanisms such as the one provided in subsection 188.69 of article 188 of the LPAG, regarding opting for negative administrative silence and its effects;

That, regarding what was argued by PLAN RENTABLE that it has been sanctioned, for situations that are not in accordance with the CONTRACT, the following must be specified:

a) The associate, on 31 October 2019, signed with PLAN RENTABLE the CONTRACT to obtain a Purchase Certificate for US$ 10,000.00 (Ten thousand and 00/100 American dollars) and on 11 September 2020 the associate reported PLAN RENTABLE before the SMV, indicating that she was not considered as an eligible associate in the assembly held on 4 September 2020, therefore, she did not participate in the award draw carried out, nor could she bid online, thus PLAN RENTABLE breaching the CONTRACT, which establishes her right to participate as an eligible associate in the monthly draws and auctions;

[7] In the TUO LPAG it is located as article 151.

[8] Morón Urbina, Juan Carlos, “Comentarios a la Ley del Procedimiento Administrativo General” Volume I, 15th Edition, 2020, Gaceta Jurídica, P.720

[9] “Article 188.- Effects of administrative silence (…) 188.6. In sanctioning procedures, administrative appeals intended to challenge the imposition of a sanction will be subject to negative administrative silence. When the administered has opted for the application of negative administrative silence, positive administrative silence will be applicable in the following resolution instances.” It corresponds to subsection 199.6 of article 199 of the TUO LPAG.

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

b) The SANCTION RESOLUTION declared that PLAN RENTABLE incurred in infraction by not having complied with the CONTRACT, regarding the right of the eligible associate to participate in the award assemblies, which was confirmed by the RECONSIDERATION RESOLUTION. On this, the CONTRACT, in numeral 2, subsection 2.2, states the following:

“2. Payment Plan (…) 2.2 Places of payment of the installments: The associate will pay their total installments in the cashier of the main premises of Plan Rentable taking into account what is prescribed in Law No. 28194, which states that those amounts that exceed S/. 3,500 (Three thousand five hundred and 00/100 soles) and/or US$ 1,000 (One thousand and 00/100 American dollars), must be made in the banking or financial entities authorized by Plan Rentable for collection up to 48 business hours before the scheduled time for the holding of the award assembly of their group, considering it eligible in this. Otherwise, it will be considered as a delinquent associate, applying what is mentioned in clause 3. (…).” (Emphasis added)

c) In the analyzed case, it is verified that the associate made the payment of the total monthly installment on 31 August 2020 with operation number 9508 to the bank current account No. 0011-0387-82-0100040315 of PLAN RENTABLE at Banco BBVA (hereinafter, DEPOSIT); while the Award Assembly No. 15 of Group 6004, (hereinafter, ASSEMBLY), was held on 04 September 2020. In that sense, what is established in subsection 2.2 of the CONTRACT was complied with, which as seen from its text, states that one has up to forty-eight (48) business hours before the scheduled time for the ASSEMBLY to make the payment of the installments, and consequently had the status of eligible associate to participate in the ASSEMBLY;

d) Notwithstanding this, it must be noted that PLAN RENTABLE through its Collection Assistant (hereinafter, REPRESENTATIVE), through a WhatsApp message of 28 August 2020, that is, a few days before the DEPOSIT was made, stated the following:

“Dear Associate: May the present serve to greet you cordially, and inform that your group 6004 Installment No. 15 is participating on Friday 04.09.2020 at 02:30 pm; for which reason you can pay your monthly installments up to a term of 24 hours before your assembly. I would greatly appreciate it if you would send the respective voucher copy through this channel in order to validate your deposit and enable your contract to participate in your associates' meeting. Sincerely, Deicy Lizarazo from the collections area." (Emphasis added)

This means that, according to what was stated by the REPRESENTATIVE, the member could pay their monthly dues up to twenty-four (24) hours before their assembly, a situation that did not occur in the present case, because, as expressed in the preceding paragraphs, the payment by the member of the total monthly fee under the CONTRACT was made on 31 August 2020.

e) Likewise, from the review of the “Payment of Dues” card, issued by PLAN RENTABLE and presented as evidence by the member, the following text is noted: “We ask you to make payments 1 day before the assembly corresponding to your group (…)” (Emphasis added);

f) From the foregoing, it is concluded that PLAN RENTABLE is the one who in practice relaxed the provisions of subsection 2.2 of the CONTRACT, by sending information to members in which it allowed them to make payment up to one day or 24 hours before the assembly was held. However, in the present case, the member paid her fee on 31 August 2020 and sent the corresponding voucher to the REPRESENTATIVE on 3 September 2020 through a WhatsApp message addressed to the REPRESENTATIVE, who at that time gave her approval regarding the payment made. Therefore, the assertion made by PLAN RENTABLE to the effect that the member had to make the payment of her fee on 2 September 2020 and that the payment was not identified is not valid;

g) In this way, it is evident that the member made the payment of her total monthly fee through the DEPOSIT within the period established by the CONTRACT, and furthermore, communicated it within the period indicated by PLAN RENTABLE through its REPRESENTATIVE, for which, as already mentioned, she should have been considered an eligible member to participate in the ASSEMBLY, as also specified by the CONTRACT;

Whereas, for the foregoing, the argument maintained by PLAN RENTABLE that it was sanctioned for situations that do not comply with the CONTRACT has been disproven, since, as this office verifies, the period for payment and for her to be considered an eligible member for her participation in the ASSEMBLY is established by the CONTRACT, the member having made the DEPOSIT within said period, and furthermore, communicated it within the period established by PLAN RENTABLE through the information provided to the member, without referring in any way that it is an exception or special benefit;

Whereas, in this sense, this office considers that the arguments of PLAN RENTABLE indicated in its appeal do not disprove the grounds of the RECONSIDERATION RESOLUTION; and,

In accordance with the provisions of item 26 of Article 12 of the Organization and Functions Regulations of the SMV, approved by Supreme Decree N° 216-2011-EF;

RESOLVES:

Article 1°.- To declare unfounded the appeal filed by Plan Rentable Perú S.A.C. (formerly Plan Rentable Perú S.A.C. EAFC) against the Adjunct Superintendent Resolution SMV N° 072-2023-SMV/10.

Article 2°.- To declare the administrative remedy exhausted.

Electronic document di gitally signed within the framework of Law N° 27269, Law of Sign atures and Digital Certificates, its Regulations and amendments.
The integrity of the document and the authorship of the ( s) sign ature( s) can be verified at https://apps.fi rmaperu.gob.pe/web/validador.xhtml

Article 3°.- To transcribe this resolution to Plan Rentable Perú S.A.C. (formerly Plan Rentable Perú S.A.C. EAFC).

Article 4°.- To order the dissemination of this resolution on the Institutional Website of the Superintendency of the Stock Market on the Single Digital Platform of the Peruvian State (www.gob.pe/smv).

Zósimo Juan Pichihua Serna
Superintendent of the Stock Market

Superintendent Resolution No. 128-2024-SMV/02 declaring the appeal filed by Plan Rentable Perú S.A.C. unfounded