SMV Regulations
SMV establishes the exceptional regime applicable to State companies with shares registered in the Public Registry of the Stock Market and in the Securities Register of the Lima Stock Exchange to facilitate the distribution of dividends.- Through Superintendent Resolution No. 039-2020-SMV/02, published in the Official Gazette “El Peruano”, on April 29, 2020, the Superintendence of the Securities Market (“SMV”), established exceptionally a special regime applicable to companies in which the Peruvian State has sole or majority shareholding, whether within or outside the scope of the National Fund for Financing the State’s Business Activity – FONAFE, whose shares are registered in the Public Registry of the Stock Market (“RPMV”) and in The Securities Register of the Lima Stock Exchange, for the purposes of distributing dividends agreed by the corporate bodies of those companies, so that they can fix the registration date and the date of delivery of the aforementioned dividends in a shorter period than that provided for in the general regime contained in the Regulation of Court, Registration and Delivery Date, approved by CONASEV Resolution No. 069-2006-EF/94.10 (“FCRE Regulation”).
Thus, the aforementioned resolution establishes that said companies, during the period of the State of National Emergency and up to sixty (60) calendar days after its end, may report the registration date for the distribution of dividends, with at least three (3) working days before the day determined as the registration date, instead of at least 12 (twelve) working days in advance, according to the general regime provided in the FCRE Regulations.
Likewise, companies are also allowed to communicate the date of registration of the respective corporate agreement and set the date of delivery of the dividends so that it coincides with the date of registration.
SMV exceptionally establishes June 30, 2020, as the deadline for the submission of the Declaration – Self-Assessment and Payment of the Annual Contribution for the taxable year 2019 (AP-1 Format), and establishes further details for the payment of contributions.- In response to the State of National Emergency ordered by Supreme Decree No. 044-2020-PCM and the provisions issued by the SMV in this regard, by Superintendent Resolution No. 038-2020-SMV/02, published in the Official Gazette “El Peruano”, on April 26, 2020, the SMV exceptionally established that the deadline for the submission of the Declaration – Self-Assessment and Payment of the Annual Contribution for the taxable year 2019 (AP-1 Format), by the stock exchanges, securities clearing and settlement institutions, risk rating companies, mutual fund management companies, investment fund management companies, brokerage companies, securities broking companies, securitization companies, commodity exchanges, product brokerage companies, price provider companies, collective fund management companies and other entities to which the SMV grants operating authorization, shall be on June 30 2020.
Likewise, the aforementioned resolution establishes other provisions related to the payment of contributions, including: (i) regarding the Annual Contribution for the taxable year 2019, that the period of seven (7) days for the SMV to report to the companies the amounts in excess or in default that they have paid from their contribution (second paragraph of article 10 of the Regulation on Contributions for Supervisory Services provided by the SMV, approved by CONASEV Resolution No. 095-2000-EF/94.10), shall be counted from the expiration of the term referred to in the preceding paragraph; (ii) that for the purposes of filing the Declaration – Self-Assessment and Payment of the Annual Contribution for the taxable year 2019, when in the AP-1 Format is indicated as “April 30”, it must be understood as “June 30 2020 ”; and (iii) regarding the monthly payment on account of April and May of this year of the taxpayers referred to in the preceding paragraph, that the audited annual financial information for 2018 submitted to the SMV is used for its calculation, whether the audited annual financial information for 2019 submitted to the SMV is not available at the end of each of the above months.
SMV incorporates article 4 to the Provisions for the application of subsection d) of article 12 and article 156 of the Securities Market Act.- Through Superintendent Resolution No- 037-2020-SMV/02, published in the Official Gazette “El Peruano”, dated April 24, 2020, the SMV included a new article to the aforementioned provisions (“Provisions”), which were approved by SMV Resolution No. 030-2019-SMV/01.
It shall be recalled that the subsection d) of article 12 of the Securities Market Act (“LMV”) establishes that the directors, officers and workers of the stock exchanges and other entities responsible for the conduct of centralized mechanisms, as well as securities clearing and settlement institutions, including the wheel director, they are prohibited from acquiring or transferring securities or financial instruments registered in the RPMV, unless they obtain prior authorization from the SMV. For its part, article 156 of the LMV establishes that the members of the Board of Directors or Board of Stock Exchanges, as appropriate, may not acquire or dispose of securities registered or traded on the stock exchange, unless they have previously obtained the SMV’s written authorization, except in the case of transactions related to securities deriving from the status of user of a public service.
In that regard, in 2019 the SMV issued the Provisions in order to, among others, list the securities which are exempt from the application of the prohibitions referred to in the preceding paragraph, in other words, the securities whose acquisition by the persons mentioned above, does not require prior approval from the SMV.
Now, article 4, which is incorporated into the Provisions in accordance with the provisions of the Resolution under comment, develops the procedure for obtaining the authorization of the SMV for the cases provided for in subsection d) of article 12 and article 156 of the LMV, indicating that the authorizations granted shall relate to a particular operation and shall not be subject to renewal.
SMV approves provisions applicable to companies that upon the entry into force of Title IV of Emergency Decree 013-2020, Emergency Decree that promotes the financing of MSMEs, Entrepreneurship and Startups, are developing the activity of financial equity financing through the form of loans.- Through SMV Resolution No. 005-2020-SMV/01, published in the Official Gazette “El Peruano”, dated April 22, 2020, the SMV, as a result of the entry into force of the Title IV of Emergency Decree 013-2020 (“DU”), which regulates crowdfunding activity, called in the regulation as financial equity financing (“FPF”), has authorized companies that to date are managing platforms through of which said activity is carried out in the form of granting loans, to continue operating as long as the SMV does not issue the corresponding regulations, to the extent that they comply with: (i) Send a communication to the SMV indicating their interest in continuing to carry out the FPF activity through the loan modality regulated by the DU; and, (ii) Describe in detail, in said communication: (a) its business model; (b) registration data of the company; (c) how it segregates the accounts where it manages its own resources from those where the funds of the recipients and investors are channeled; and, (d) warnings they make to the public about the risks associated with their investment.
The resolution provides for a transitional period, which shall culminate when the SMV has issued the regulatory rules that the DU entrusts to it, during which, only the companies that have sent the aforementioned communication shall be able to carry out FPF in the form of granting loans.
In addition, the resolution establishes that in the indicated transitional period: (i) Companies authorized to continue carrying out FPF under the form of loans must publish on their platform that: (a) they are not authorized and supervised by the SMV, and report regarding the implicit risks associated with its operations, (b) the company is not responsible for the payment of the loans agreed on its platform, and (c) there is a risk of total or partial loss of the capital invested by the investors, and (d) any other information that the SMV requests to publish for prudential purposes; and, (ii) Said companies may not use the name “Managing Companies of Financial Equity Financing Platforms”.
SMV amends articles 154, 157 and 158 of the Regulation of Brokering Agents.- Through Superintendent Resolution No. 036-2020-SMV/02, published in the Official Gazette “El Peruano”, on April 17, 2020, the SMV amended the articles in question to regulate in greater detail the procedure for canceling the operating authorization of a broker, at the request of the broker himself. The main changes aim to establish the procedure, minimum requirements and conditions to be met by the agent requesting said cancellation to transfer the assets, outstanding transactions and information from its clients to another broker, as well as the dissemination to be given to that procedure, which must be completed before the cancellation request may be submitted to the SMV.
