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MINISTRY
OF FINANCE
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SOCIALIST
REPUBLIC OF VIETNAM
Independence – Freedom - Happiness
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No.:
202/2011/TT-BTC
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Hanoi,
December 30, 2011
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CIRCULAR
GUIDING THE HANDLING OF
FINANCE AND DETERMINATION OF VALUE OF ENTERPRISE WHEN THE TRANSFORMATION OF THE
100% STATE-OWNED ENTERPRISES INTO JOINT STOCK COMPANIES UNDER THE PROVISIONS OF
DECREE NO.59/2011/ND-CP OF 18/07/2011 OF THE GOVERNMENT
Pursuant
to the Enterprise Law No.60/2005/QH11 dated 29/11/2005;
Pursuant
to Decree No.118/2008/ND-CP dated 27/11/2008 of the Government regulating
functions, duties, powers and organizational structure of Ministry of Finance;
Pursuant
to Decree No.59/2011/ND-CP dated 18/7/2011 of the Government on the
transformation of the 100% state-owned enterprises into joint stock companies (hereinafter
referred to as Decree No.59/2011/ND-CP);
The
Finance Ministry hereby guides a number of issues on financial handling and determination
of value of enterprises to transform the 100% state-owned enterprises into
joint stock companies as follows:
This
Circular applies to the enterprises subject to equitization defined in Article
2 of Decree No.59/2011/ND-CP (hereinafter referred to as enterprises of equitization)
and within the implementation process of transfer of 100% state-owned enterprises
into stock companies (hereinafter referred to as equitized enterprise).
Article 2. A number of principles when implementing
enterprise equitization
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2.
The agencies that are competent to decide on the implementation of the equitization
of enterprises decide to publish the enterprise value, decide on approving the
equitization plan for enterprises, decide on approving the restructuring plan
for enterprises, decide on approving financial settlement, settlement for equitization
costs, settlement of funds supportting for redundant laborers, the settlement
for the proceeds from equitization and publish the actual value of the State
capital at the time that joint stock companies are issued certificates of
initial joint stock company registration as stipulated in Clause 1, Clause 2 of
Article 49 of Decree No.59/2011/ND-CP (hereinafter referred to as agencies deciding
the equitization of enterprises).
3.
Before implementing equitization, equitized enterprises have to make inventory,
process finance and redefine enterprise value, the value of state capital in
enterprises in accordance with current legislation. The State does not grant
more capital for equitization, including the enterprises that by the Decision No.14/2011/QD-TTg
dated 04/3/2011 of the Prime Minister promulgating the criteria, list, classification
of state enterprises when implementing equitization are subjects to owned by
the State more than 50% of the total shares.
4.
After having been dealt with finance and implemented the determination of
enterprise value that the state capital in the enterprise is no longer or the
enterprise's actual value is lower than the liabilities, the agencies that are
competent to decide on equitization direct the enterprise to corborate with the
Debt Trading Company of Vietnam and the creditors of the enterprise to set up
the plan of restructuring the enterprise to transfer the enterprise into joint
stock company. In the case of the restructuring plan is not feasible, ineffective,
it should apply other suitable arrangement in accordance with the law
provisions.
5.
The process of financial handling and the determination of equitized enterprise
value must be ensured tightness, openness and transparency, not lossing capital
and assets of the State. The concerned organizations and individuals when implementing
the handling of finance and the determination of enterprise value fail to
comply with regulations, causing damages or loss of state assets, are
responsible for administrative sanction, paying material compensation or examined
for criminal liability under the provisions of law.
6.
Result of the determination of equitized enterprise value, the actual value of
state capital approved by the competent authority is a basis for the equitized
enterprises to define charter capital, to set up the plan of equitization and
organize the sale of initial shares, organize the shareholders meeting, to
continue handling the remaining financial matters to the time officially
transformed into joint stock companies, settle finance of the equitization process
with the state and hand over the joint stock companies.
7.
Competent persons as defined in Article 49 of Decree No.59/2011/ND-CP establish
the Steering committee of equitization to help the organization of the implementation
of equitization according to regulations. The Steering committee of
equitization shall be dissolved after equitized enterprise was completed the handover
into the joint stock company. The financial problem arises (if any) after
equitized enterprises has officially transformed into joint stock company, but
is related to the equitization process, the agency that is competent to decide enterprise
equitization is responsible for continue processing.
The
Steering Committee for Innovation and Enterprise Development and the Ministry
of Finance appoint their members to joint in the Steering Committee of equitization
of enterprises with large capital, business activities in the specific sectors,
branches according to provisions in point b Clause 4 of Article 49 of Decree
No.59/2011/ND-CP to assist the Steering Committee of enterprises equitization to
perform its tasks of which direct are the difficulties and problems of policy
mechanisms during the process of enterprise equitization when required to
submit to the competent authorities for handling and performing other duties as
assigned by the Chief of Steering Committee of enterprises equitization.
8.
The work steps and the conversion procedure of the 100% state-owned enterprises
into the joint stock companies shall comply with Appendix issued together with
Decree No.59/2011/ND-CP. In case of equitized companies do not make enterprise
transformation by this process shall be implemented according to decision of
the Prime Minister.
1.
"The time of making decision on equitization" means the time
the agency that is competent to decide equitization of enterprises to issue
decision on implementing equitization of enterprise.
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a)
Where the determination of value of equitized enterprise according to the
method of assets, the time of determining value of enterprise is the time of
closing accounting books and making annual or quarter financial statements
closest to the the time of making decision on equitization.
b)
In case of determining value of enterprise by the method of discounted cash
flow or other methods, the time of determining value of enterprise is the time
of closing accounting books and making annual financial statements closest to
the the time of making decision on equitization.
3.
"The time of publicizing enterprise value" means the time that
agency that is competent to decide equitization of enterprises to issue
decision on publicizing the value of equitized enterprises.
4.
"The time of transformation into joint stock company of equitized
enterprise" means the time that joint stock company converted from
equitized enterprise is granted business registration certificate of the first
joint-stock company.
Chapter II
FINANCIAL HANDLING UPON EQUITIZATION
SECTION
I. INVENTORY OF ASSETS AND CROSS-CHECK OF LIABILITIES
Article 4. Inventory and classification of assets
1.
Upon receiving the decision of equitization of the authorities that are
competent to decide on equitization, equitized enterprises are responsible for
the inventory and classification of assets, capital sources and enterprise
funds being managed, used at time of determining enterprise value. The group of
helping the equitization, equitized enterprises coordinate with consultants (if
any) to implement the inventory and classification of assets.
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3.
Inventoried assets are classified according to the following groups:
a)
Assets that enterprises wish for use.
b)
Assets that are no longer needed or unsold assets and assets awaiting
liquidation.
c)
Assets formed from reward funds and welfare funds (if any).
d)
Assets leased, borrowed, materials, goods to be kept for others or from
processed outsource, received from acting as agent, assets deposited, assets
contributed as capital to joint ventures and other assets not belonging to
enterprise.
đ)
The assets attached to land subject to treatment under the reorganization plan,
treatment for the facilities of housing and land as decided by the Prime
Minister of the reorganization, the handling of houses, land owned by the
State.
a)
To compare and certify all of the receivable debts by each debtor, including:
-
The receivable debts not yet due and overdue receivable debts.
-
To analyze clearly the bad receivable debts meaning the receivable debts that
are overdue for payment as stated in the economic contract. The receivable
debts not yet due, but economic organizations (companies, private enterprises,
cooperatives, credit institutions) have been in bankruptcy or conducting dissolution
procedure; the debtors are missing, run away, are being prosecuted by law
enforcement agencies, detented, brough to trial or serving sentences or were dead.
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b)
To review the economic contracts to determine the amounts already paid to suppliers
of goods and services but have been accounted for the entire prepaid value in
business expenses such as rent, land rent, purchase amount, long term insurance
purchase amount, salaries and wages ....
2.
Payable liabilities include loans, tax debts and other obligations to the state
budget:
a)
Pursuant to the contracts, notice of debts to make a list comparing the loans
according to each creditor; determine the tax debts and amounts payable to
other state budget; specifically analyze the loans under contracts (domestic
loans, foreign loans), loans with guarantee, loans by issuing bonds; in term
loans, loans not yet come due, overdue loans for payments, principal debts and outstanding
interest debts, payable debts but not required to be paid.
b)
Payable liabilities but not required to be paid mean debts that creditors of
equitized enterprises when implementing comparison and certification of debts are
under the following circumstances:
-
The debts of the enterprises that have been dissolved, bankrupted, but not
specifying the agency or individual to inherit under the plan of dissolution,
processing of enterprise bankruptcy assets of the enterprise dissolved,
bankrupted decided to approve by the competent agency.
-
The debts of the individuals who have died but did not specify a successor.
-
The debts of other creditors that have been overdue for years but creditors did
not come for comparison and verification. In this case, the equitized
enterprises shall send written notice directly to the creditors or make notice
on the mass media 5 working days before the time of inventory.
Article 6. Comparison and certification of financial
investment amounts; the divided amounts; the amounts received from capital
contributions
Equitized
enterprises compare and confirm, make detailed list for the financial
investment amounts, divided amounts of enterprises including: investments in
joint ventures, associated with enterprises, organizations; and participation
in the equity or capital contribution to establish limited liability companies,
capital investment to establish one member limited liability companies owned by
the equitized enterprises, profits divided from the investments (there were the
Resolutions of the Management Board, the Council of members) but not actually
received; analyse the results of investment activities with interest and
investment activity lost not yet treated;
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For
amounts received from contribution of capital of joint ventures, associated
enterprises, equitized enterprises based on joint venture contracts make a list
in details for each partner contributed capital to the equitized enterprises
and inform the capital contributors for the company to inherit the previously
signed contracts or liquidate the contracts.
Article 7. Inventory, comparison, confirmation and
classification of assets and liabilities when the equitization of state-owned
commercial banks
The
inventory and assessment, classification of assets as capital in cash,
financial leasing property and other debts in the State Commercial Bank when
implementing equitization shall be made as follows:
1.
To inventory, compare the customer's deposits and certificates of deposits (fiducial
credits, bills, bonds) as follows:
a)
To make detailed inventory for each item on the accounting books.
b)
To compare and confirm the balance of customers’ deposits as legal entities.
c)
Savings deposits, personal deposits, certificates of deposits may not be required
to be compared with the clients, but shall be compared with the archived cards.
For some specific cases (with large deposit balances or difference between the
data on accounting books with the archived cards) shall be compared directly
with clients.
2.
Comparison of asset as credit outstanding (including outstanding monitored off-balance
sheet) is as follows:
a)
Based on the credit profile of each customer in a commercial bank to establish
a list of customers having credit outstanding and number of credit outstanding
of each customer, detailed by each the credit contract.
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For
individual customers, if it may not be organized the comparison with each
consumer, the commercial bank, credit institution shall compare with the
archived cards.
c)
Where there is a difference between the profile data with accounting books and
customers’ confirmation, the commercial bank must make clearly the reasons of
the difference and determine the responsibilities of concerned organizations
and individuals for handling according to current regulations of the State.
3.
To classify the outstanding receivable debts eligible for treatment under the
guidance of the State Bank of Vietnam.
4.
For financial leasing assets: it must compare with each client, identifying the
debts remaining to be paid of each financial leasing asset.
Article 8. Responsibility in the inventory of assets,
comparison, confirmation of assets and capital of all kinds to make the
enterprise equitization
In
the process of the inventory of assets, comparison, confirmation of debts,
capital of all kinds if it is omitted leading to reduce the value of
enterprises and the state capital in equitized enterprises, the directors,
chief accountants and other concerned organizations, individuals shall be
responsible for paying compensation and remitting to the state budget the total
value of assets and capital of all kinds that had been omitted in accordance with
the law provisions.
SECTION
II. HANDLING ON FINANCE BEFORE DETERMINATION OF ENTERPRISE VALUE AND AT THE
TIME OF TRANSFORMATION INTO JOINT STOCK COMPANY
Article 9. Handling on finance before determination of
enterprise value
1.
Handling of assets:
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a)
For assets of surplus or deficit, it must analyze to make clear the reasons,
and processed as follows:
- Deficit
assets: it must determine the responsibilities of organizations and individuals
to handle material compensation in accordance with current provisions; value of
deficit assets after deducting compensation of organizations and individuals
(if any), shall be accounted by the enterprise into production and business
costs.
- Surplus
assets: if it is not determined the cause or can not be found the owner shall
be handled to increase the actual value of the State capital.
b)
With respect to assets no longer needed or unsold assets and assets awaiting
liquidation:
-
Directors of equitized enterprises are responsible for directing the
liquidation or sale of assets. The liquidation, sale of assets is done by means
of public auction under the current regulations of the State.
-
The revenues and expenses for the activities of liquidation or sale of assets
shall be accounted into the revenues and expenses of the enterprises.
-
By the time of determining enterprise value, those assets no longer needed or
unsold assets and assets awaiting liquidation that have not been handled,
except for the assets not allowed to exclude specified in Clause 3 of Article
14 of Decree No.59/2011/ND-CP, the authorities that are competent to decide on
announcement of the value of equitized enterprises consider to decide on excluding
not including into enterprise value and perform the handover for the agencies
specified in clause 2 of Article 14 of Decree No.59/2011/ND-CP. Specifically:
Debts
Trading Company of Vietnam for handling in accordance with the law provisions
for the enterprises defined in Article 2 of Decree No.59/2011/ND-CP.
The
parent companies of the economic groups, the State-owned Corporation, parent
company of the group of parent company - subsidiary for handling in accordance
with provisions for the limited liability companies held 100% of charter
capital by these enterprises.
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d)
For the assets not allowed to exclude, the equitized enterprises shall handle
in accordance with provisions in clause 3 of Article 14 of Decree No.59/2011/CP-ND.
đ)
The equitized enterprises make the plans of restructuring, handling facilities
of houses, land and submit to the competent authorities for approval in
accordance with provisions of the Prime Minister for handling completely
ownership of property and land ownership of the enterprises before determining
value of enterprises to be equitized.
For
assets attached to land not under enterprises’ management, use right, equitized
enterprises based on the plans of restructuring, handling facilities of houses,
land that have been approved by competent authorities according to provisions
of the Prime Minister to handle completely ownership of property and land
ownership of the enterprises before determining value of enterprises to be
equitized.
e)
Assets as public welfare works: nursery schools, kindergartens, clinics and
other welfare assets invested with the welfare and reward funds; residences of
officials and public employees invested with welfare fund and invested with the
state budget are handled as prescribed in Clause 4 of Article 14 of Decree No.59/2011/ND-CP.
g)
For assets being used in production, business invested with welfare fund,
reward fund of equitized enterprises are included in the value of equitized
enterprises and the joint stock companies are entitled to continue use in production,
business.
2.
Handling of receivable debts:
The
treatment of receivable debts of the enterprises shall comply with Article 15
of Decree No.59/2011/ND-CP, of which:
2.1.
Based on the result of comparison and certification of receivable debts, the equitized
enterprises shall recover debts when coming due; actively urge and take all
necessary measures to recover the overdue receivable debts likely to recover
prior to the determination of the value of equitized enterprises.
2.2.
The receivable debts are determined to be bad receivable debts when having full
documents to prove, as follows:
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b)
Books of accounts, vouchers, documents evidencing debts not been recovered by
the time of handling debts are being accounted receivable debts by the
enterprises on the accounting books of the enterprises.
c)
In case of the economic organizations:
-
Debtors that have been dissolved, bankrupted: required to have the decisions of
the Court to declare enterprise’s bankruptcy under the Bankruptcy Law or
decisions of the competent persons for the dissolution of enterprises as debtors,
in case of self- dissolution, it must have notice of the unit or certification
of the agency decided to establish units or organizations.
-
Debtors that have ceased their operation and have no ability to pay: means certification
of the agency decided to establish the enterprise or business registration
organization on the enterprises, organizations ceased their operation but have no
liquidity.
-
For receivable debts but debtors decided on removing debts in accordance with
law by the competent agencies; the damage difference accepted by the competent
authority from selling receivable debts: means the decisions of the competent
agencies for removing debts.
-
For receivable debts incurred for more than three years that debtors are still
exist but can not afford to pay the debts, the enterprises have adopted many
measures but not recovered, the enterprises must present the proof such as
minutes of comparing debts with debtors, the official dispatches of requesting
for making payment of debts, the official dispatches requesting the court to
declare bankruptcy according to law. The receivable debts that cost estimates
for requesting the payment of debts are larger the value of the receivable
debts.
d)
In case of individuals:
-
A death certificate (copy) or written certification of local authority for debtor
who has died without inherited assets to pay debts.
- A
wriiten certification of local authority for debtor who is alive or missing,
but inability to pay debts.
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đ)
By the time of conducting the determination of enterprise value, the receivable
debts have been fully documented to prove that they are not likely to be recovered
under the provisions (regardless of the debts already appropriated or not for
reserve fund), the enterprises shall use the reserve source for bad receivable debts
to cover, the deficit difference shall be accounted into expenses of production,
business of the enterprises.
2.3.
The loans having inadequate legal documents to prove their debtors or not
likely to be recovered as prescribed, shall not be excluded from the enterprise
value, enterprises have to clarify the causes for handling as follows:
-
For receivable debts having inadequate legal documents to prove their debtors,
the enterprises must determine the cause to process the liability of paying
compensation of concerned collectives or individuals; the loss after handling of
the organizations or individuals (if any) shall be handed over by equitized
enterprises to the joint-stock companies for continuing to handle later.
-
The receivable debts having no documents to prove in accordance to provisions
that there is no ability to recover, the equitized enterprises and joint stock
companies shall then continue to complete the documents as prescribed and handle
according to the provisions of current law.
2.4.
Enterprises are allowed to exclude from the value of the equitized enterprises the
receivable debts if they have adequate dossiers documented inability to recover
as prescribed.
Equitized
enterprises shall hand over the debts not included in the value of the
equitized enterprises (including bad debts that have been dealt with by the
provision within the preceding 05 years prior to the equitization) together with
full dossiers, the relevant documents to the agencies specified in Clause 2 of
Article 14 of Decree No.59/2011/ND-CP.
For
the receivable debts not likely to be recovered although have been treated but
debtors are still exist, the agency receiving the handover is responsible for
following-up and organization of the recovery.
During
the pending time for the implementation of handover, the time not yet officially
converted into joint stock companies, the equitized enterprises shall still
continue to monitor and organize the recovery of debts that have been excluded
from the value of equitized enterprises.
2.5.
For the amounts that enterprises paid in advance to suppliers of goods and
services such as rent, land rent, the amounts of long-term insurance purchase, the
amounts of goods purchases, wages which have been accounted into expenditures
of business, the enterprises based on the contracts of sale of goods and
services provision, comparison with debts for accounting reduction of costs
(corresponding to the goods or services not yet been provided or unrealized
leasing term) and accounting increase for expenses paid before determinating
the value of equitized enterprises.
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Based
on the results of cross-check for loan classification, the enterprises handle liabilities
as prescribed in Article 16 of Decree No.59/2011/ND-CP, of which:
a)
The liabilities not required to pay upon having all documents and conducting
all the procedures for creditors under the provisions of point b clause 2 of
Article 5 of this Circular shall be accounted for increasing state capital in
the equitized enterprises.
b)
For tax debts and other obligations to the state budget: equitized enterprises are
responsible for declaring and paying the full tax debts and obligations to the
state budget and sending the statement of tax settlement of the time of determining
enterprise value together with a written request to the directly managing tax agencies
to inspect and determine the tax amounts required to be paid as prescribed.
Within 30 days after receiving the written request of equitized enterprises,
tax agencies are responsible for appointing officials to inspect the equitized
enterprises in accordance with the time of determining enterprise value has
been reported.
If,
when making the determination of enterprise value that the inspection of tax
settlement has not yet been completed, the equitized enterprises shall be used the
financial statements made and tax data declared as a basis for the
determination of enterprise value (including the determination of tax
obligations and the distribution of profits), but it is required to put into the
Records of determining equitized enterprise value, the decision on publicizing enterprise
value and in the plan of enterprise equitization, to publicize the unfinished inspection
of the tax settlement when making disclosure of selling shares to the investors.
The
differences of tax obligations for the State (if any) will be adjusted when
preparing financial statements at the time the enterprises are granted business
registration certificates of the first joint stock enterprises to hand over to joint
stock companies.
c)
For loans of commercial banks and the Vietnam Development Bank (referred to as lending
banks), loans from other organizations or individuals, the equitized
enterprises shall have to mobilize lawful capital to pay the due debts before the
determination of enterprise value.
d)
During the financial process before determining the enterprise value if the equitized
enterprises have difficulties in the ability to pay overdue debts of the banks,
or accumulated losses, the enterprises shall combinate with the lending banks
to handle the loans as follows:
-
The equitized enterprises conduct the procedures, records requesting the
lending banks for considering and deciding to freeze debts, reschedule, remove
interest debts as prescribed by current law.
Within
a maximum period of 20 working days from the date of receipt of dossiers of the
enterprises, lending banks shall send written reply to the enterprises.
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- Negotiate
with the lending banks to convert debts into equity capital. The conversion of debts
into equity capital shall comply with the successful auction results of the
lending banks or following the lowest successful bid price. Where the lending
banks are selected as strategic investors, the conversion of debts into shares
shall be determined according to the price specified at Point đ, Clause 3,
Article 6 of Decree No.59/2011/ND-CP.
-
The handling of conversion of liabilities of lending organizations and
individuals (not banks) into equity capital shall comply with current
regulations in Clause 1 of Article 16 of Decree No.59/2011/ND-CP.
đ)
For foreign loans (with guarantee and without guarantee) have expired, the
enterprises and the guarantors must negotiate with creditors to have plans for
handling in accordance with the laws on management of borrowing and repayment
of foreign loans.
e)
For social insurance debts, debts of employees, officials, the enterprises are
responsible for completely paying before converted into joint stock companies
to secure rights for laborers. For the particular expenses to laborers as military
uniform, national defense workers and employees (salary for retirement
preparation time) in the equitized enterprises under the Ministry of Defense if
any arising shall be accounted into the costs of production, business before
the financial settlement to hand over equitized enterprises into joint stock
companies.
4.
The reserves, losses or profits
The
handling of the reserves, risk reserve funds of banks, professional reserves of
insurance, exchange rate differences, the financial reserve fund and the
profits, loss of enterprises, the equitized enterprises comply with the provisions
of Article 17 of Decree No.59/2011/ND-CP.
In
case the joint stock companies have losses due to exchange rate differences, the
equitized enterprises report causes leading to losses due to exchange rate
differences with the agencies decided the equitisation to handle each specific
case.
Where
after equitized enterprises processed the losses in accordance with provisions to
the time of determining value but they still owe the credit institutions
(including the Development Bank of Vietnam), equitized enterprises shall conduct
procedures and dossiers to request the lending banks for considering the
handling of removing interest debts according to current regulations of the
State on outstanding debts settlement.
The
arising profits of the enterprises after used to cover losses (if any) under
the provisions of the Law on Enterprise Income Tax, offset the losses incurred
on assets not in use, awaiting liquidation, assets impaired, debts not likely
to recover, the rest shall be distributed according to current regulations
before determining the enterprise value. If the time of determining value of enterprise
does not coincide with the time of annual financial statement, the
appropriation of funds of enterprises shall comply with the provisions of
Clause 2 of Article 10 of this Circular.
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In
case joint stock companies do not inherit capital invested long-term in other enterprises
that they sell to their partners or other investors as prescribed by law, the
equitized enterprises have to report, collect certification of the tax
authorities on results and obligations of tax, on the capital transfer for used
as a basis for determining the enterprise value.
6.
The reward fund and welfare fund:
Cash
balances of the reward fund, welfare fund after used for offsetting the
expenses in excess of regime for employees (if any) are used to distribute to
the laborers who are working at the time of dertermining value of enterprises
by the number of working years in the equitized enterprises.
Enterprise
directors cordinate with the trade unions at the equitized enterprises to set
up the plans and decide the distribution of cash balances and the value corresponding
to the value of assets invested by the reward fund, welfare fund that stock
companies continue to use in production, business to employees. The money
amounts divided from the welfare fund, reward fund and a list of employees to be
entitled under the decisions of enterprises must be publicized to the laborers.
Where
enterprises spent over the resources of the reward fund, welfare fund, the
enterprises must review the responsibilities of organizations and individuals
decided to spend the reward fund, welfare fund but has no more resources and
handle as follows:
-
For amounts spent directly to the employees named in the regular list at the
time of having the decision on equitization and spent to the members of administration,
management boards of the companies are not deducted from the state capital in the
enterprises. Enterprise directors cordinate with the trade unions at the
enterprises to process by recovery or transfer into receivable debts for the
joint stock companies to process further later.
-
For the expenses exceeding the resources of reward fund, welfare fund that are
unidentifiable objects to recover (as expenditures for employees who terminated
their jobs or resigned before the equitization decision), the Equitization
Steering Committee reports to the agency deciding the enterprise value for
handling the receivable debts that are not likely to be recovered.
7.
Reward Fund for the Administration, Management Board
For
cash balances of Reward Fund for the Administration, Management Boards, the enterprises
report owners to decide on the reward for the subjects as prescribed:
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8.
The enterprises establish the funds for development of science and technology of
the enterprises, upon the implementation of equitisation, the funds’ balances shall
be transferred to joint stock companies. The joiny stock companies are
responsible for the management and use of funds under the provisions of Circular
No.15/2011/TT-BTC dated 9/02/2011 of the Ministry of Finance.
9.
Balance of Fund of enterprise support and arrangement at the equitized enterprises
(if any) is processed state capital increase accounting in enterprises according
to Article 20 of Decree No.59/2011/ND-CP.
Article 10. Financial handling upon the equitized
enterprises officially converted into joint stock companies
1.
Based on the decisions to announce enterprise value of the competent
authorities, the equitized enterprises are responsible for adjusting data in the
accounting books by enterprise value that has been published. To perform
transfer of assets and receivable debts not included in the enterprise value to
the agencies specified in clause 2 of Article 14 of Decree No.59/2011/ND-CP,
within 30 days after having the the decision to announce enterprise value of
the competent authority.
2.
In the period from the time of determining enterprise value to the time officially
transformed into joint stock companies, the equitized enterprises continue to
handle the financial matters in accordance with Article 21 of Decree No.59/2011/ND-CP
and make financial statements at the time officially converted into joint stock
companies. Of which:
2.1.
For investment in fixed assets, investment in works construction uncompleted when
determining the value of the enterprise, but to the time officially converted
into joint stock companies, it is completed and be approved the settlement by
competent authorities, if there is any difference compared to the time of
determining enterprise value shall be adjusted according to the approved
settlement.
2.2.
Determination of the level of fixed assets depreciation is the one defined by
the method of assets depreciation that the equitized enterprises registered
with tax authorities before doing the determination of enterprise value.
2.3.
The distribution of enterprise profits comply with current regulations for one
member limited liability company owned by the State.
If
the time of determining the value of the enterprise and the time officially
transformed into joint stock company does not coincide with the time of making
annual financial statements, so it may not be implemented the classification of
enterprises as a basis for setting up the funds of enterprises; the equitized
enterprise shall appropriate reward fund for administration, management board
and reward fund and welfare fund at this time by the following principles:
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- The
enterprises based on profits that under the regulations are used to appropriate
funds for distributing funds of enterprises.
-
If from the time of determining enterprise value to the time officially
transformed into joint stock companies is full 12 months, the level of appropriating
funds is the maximum level as prescribed by the distribution of profits, If
from the time of determining enterprise value to the time officially
transformed into joint stock companies is less than 12 months, the level of appropriating
funds equal to the level of appropriation according to the rules of profit
distribution divided 12, multiplied by the number of months from the time of determining
enterprise value to the time officially transformed into joint stock companies.
2.4.
The equitized enterprises shall appropriate sufficient reserve funds for
unemployment allowance as prescribed by the State to use the allowance payment for
redundant workers in the process of equitization; when preparing financial
statements at the time officially transformed into joint-stock company if the
balance remains, shall be accounted in income increase for equitized
enterprises.
3.
Within 30 days from being granted business registration certificate of initial
joint stock company, Equitization Steering Committee directs the helping group,
equitized enterprise to complete the financial statements at the time granted
business registration certificate of stock company, to audit the financial
statements; requests the tax agency to prioritize the inspection of tax settlement
and other obligations to the budget; re-determines State capital value at the
time officially transformed into joint stock companies; make the settlement statement:
on equitization proceeds, payment of benefits for redundant employees, the costs
of equitization.
If
the time of determining enterprise value is the preceding year, the time officially
transformed into joint stock company is the following year, then make only one financial
statement of the whole period, not to separate the two statements at the time
of 31/12 and at the official officially transformed into joint stock company.
Financial statements must be sent to agencies and units in accordance with
provisions of the accounting regime.
Financial
statements that have been audited, the settlement dossiers of the equitization
process (equitization proceeds, payment of benefits for redundant employees,
the costs of equitisation) and related documents of enterprises are sent to the
agencies deciding the enterprise equitization and related agencies to
coordinate the inspection and handling of problems in finance and implement
approval of financial statements, approval of the settlement of the enterprise
equitization process.
a)
When preparing financial statements to hand over from the equitized enterprises
into joint stock companies, the enterprises carry out the revaluation of the financial
investments, investments in securities (if any) defined in the value of the
equitized enterprises; if the total value of the financial investments, investment
in securities arises increase compared with the value defined in the enterprise
value that has been publicized and accounted in the accounting books, the equitized
enterprises may appropriate reserve of impairment for financial investments,
investment in securities and account in costs in accordance with current
regulations.
Where
the total value of financial investments, investment in securities arises
increase, the increased difference compared with the value determined in
enterprise value that has been published and accounted in the accounting books,
the enterprises may account income increase.
b)
For the dividends from capital contribution investments activities (with the Resolution
of the Management Board, the Council of Members), actually to the time converted
into joint stock companies, that the equitized enterprises have not yet collected
the money but used to increase investment capital in other enterprises, when
making the financial statements at the time officially converted into joint
stock companies must record increase the actual value of state capital in the
joint stock companies and implement the settlement of proceeds from
equitization for joint stock companies.
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c)
For shares that equitized companies are received extra without making payment,
when making financial statement at the time converted into joint stock
companies, the enterprises based on the number of shares received extra and the
transaction price by guidance in clause 8 of Article 17 of this Circular to
record increase for the actual value of the State capital in the equitized
enterprises.
When
conducting handover settlement from the state companies into joint stock
companies, the number of shares to be transferred is under the ownership of the
joint stock companies.
d)
Where the period from the due date to pay for purchase of shares by investors
to the time the company is granted the business registration certificate
prolongs more than 3 months, the enterprises shall be calculated loan interest
costs to pay for investors in the following principles:
-
Only calculating interest from the fourth month onward on total par value of
the shares purchased. For shares the employees are purchased by discounts, if
the purchase price of preference shares is lower than par value, only calculate
the interest on the amount actually paid.
-
Interest rate does not exceed short-term interest rate at the same period of
commercial bank where equitized enterprise opens its account at the time of calculating
interest.
- For
the amount of paying for interest to investors, the equitized enterprises shall
be accounted in production and business costs but must ensure not exceeding the
payable amount under the provisions and equitized enterprises are not reported
loss as making financial statements to be transfer into the joint stock
companies.
đ)
From the date of receiving the written request of equitized enterprises till by
the time as prescribed required to approve the financial statements for transfer,
the tax agencies shall give priority to appoint officials to inspect the tax
settlement and other amounts payable to budget in accordance with time that
equitized enterprises are transformed into joint stock companies.
Where
over the time as prescribed required to approve the financial statement for
transfer but the inspection of the tax settlement has not been completed,
equitized enterprise is used financial statement made and tax data declared as
a basis for handover to the joint stock company. the joint stock company is
responsible for inheritance and payment for all taxes and other arrears payable
to state budget upon handover.
After
officially converted into joint stock companies, if incurred losses due to not inspecting
the tax settlement, it shall be handled as prescribed in Clause 3 of Article 52
of Decree No.59/2011/ND-CP.
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For
equitized enterprises approved the equitization plan by the Prime Minister, The
Minister managing branch shall approve the settlement of financial statements
and the reports of settlement of: equitization proceeds, payment for redundant
workers, the expenses of equitization.
Council
of members of the parent company of the economic group; special corporation decided
to establish by Prime Minister shall approve the settlement of financial
statements and the reports of settlement of: equitization proceeds, payment for
redundant workers, the expenses of equitization of equitized enterprises
authorized by the Prime Minister the decision to publicize value of the
enterprise, the decision approving the equitization plan.
Directors
and Chiefs Accountant of the equitized enterprises shall make and sign the
financial statements, reports of determining value of the State capital at the
time of conversion into joint stock companies, the reports of settlement of:
equitization proceeds, payment for redundant workers, the expenses of
equitization and take responsibility for the truthfulness and accuracy of the
statements.
Management
Board of joint-stock company (new) is responsible for creating conditions for
leaders of the equitized enterprises to fulfill their tasks and signed, stamped
and certified by signature of the above titles of equitized enterprises in the
financial statements and the settlements related to equitization process.
Where
Directors, Chiefs accountants of equitized enterprises have not completed the
above tasks and equitized enterprises have not completed the handover into
joint stock companies, shall not be transferred their jobs or retired under the
regime.
5.
The differences between the actual value of the State capital at the time the
equitized enterprises converted into the joint stock companies with the actual
value of the State capital at the time of determining enterprise value are
handled in accordance provisions in Clause 3 of Article 21 of Decree No.59/2011/ND-CP.
Where decreased differences are arisen (including cause of loss due to
business), it must clarify the reasons of objectivity and subjectivity before handling,
in which:
5.1.
The decreased differences due to objective reasons are the losses caused by
natural disasters or calamities, the State policy changes or fluctuations of
international markets and other unforeseen reasons, but state capital has not
been negative in the equitized enterprises at the time converted into the joint
stock companies, the agencies that are competent to decide the equitization
plan consider the submission to the General Meeting of shareholders to adjust
the size, structure of charter capital of joint stock companies.
Where
decreased differences are arisen leading the value of state capital in the equitized
enterprises at the time converted into joint stock companies are negative,
enterprises report the agencies that are competent to decide the equitization
plans for reviewing to decide on the use of proceeds from the sale of shares (after
made payment of benefits to redundant workers and equitization expenses) and
compensation insurance (if any) to offset; after being offset but the value of
state capital remains negative and equitized enterprises were granted business
registration certificates of the initial joint-stock companies, the Management Boards
shall convene irregular general meeting of shareholders to vote the handling of
losses and maintain the operation of the enterprise.
5.2.
The remaining cases of capital reduction defined as subjective causes shall be
handled as prescribed in point b Clause 4, Article 21 of Decree No.59/2011/ND-CP.
The agencies that are decide equitization are not selected and nominated the
individuals taking responsibility for losses leading to capital decrease to be representatives
for state capital contribution in the joint stock companies.
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Based
on the decision approving the financial settlement; settlement of proceeds from
equitization; settlement of equitization costs; settlement of funds supportting
for redundant workers; and decision to publish the real value of state capital
at the time the equitized enterprises officially converted into joint stock
companies of the agencies deciding the enterprise equitization, Steering Committees
of Equitization direct the equitized enterprises to adjust accounting books, make
records for handover and organize handover between the equitized enterprises
and joint stock companies. Handover completion time is not more than 30 days from
the date of having approval of financial settlements at the time equitized
enterprises converted into joint stock companies.
Joint
stock companies are used all assets (tangible and intangible), capital have been
handed over for organization of production, business; inheritted all the
rights, obligations and responsibilities of equitized enterprises handed and
have the rights and obligations as prescribed by law.
The
duties and responsibilities of equitized enterprises determined additionally
after settled and handed over to the joint stock companies shall not be of the
responsibility of the joint stock companies. Where due to inadequate handover,
so the joint-stock companies do not take responsibility of inheritance of debt
obligations of equitized enterprises, the directors, chiefs accountant of the
equitized enterprises and other concerned organizations and individuals are
completely responsible for paying the debts.
After
a period of 60 days from the date signing record of handover, joint stock
companies must complete the dossiers of assets, land and send to the competent
authorities according to provisions to implement the transfer of the rights of
management, use of assets from the equitized enterprises into ownership of joint
stock companies; the allocation of land and payment for land use fees, grant or
regrant of certificates of land use rights as stipulated in the Land Law and
documents guiding the implementation of the Land Law.
1.
Dossier for handing over equitized enterprise to joint stock company include:
- Dossier
of determining enterprise value and decision to publish enterprise value.
-
Financial statement at the time officially converted into joint stock company
has been audited and approved by the competent authority.
- Decision
of determining the value of the State capital at the time converted into joint
stock company of the company authority.
-
Minutes of handing over assets and capital have been made at the time of
handover (a detailed table of debts handed over to joint stock company for
continuing inheritance and existing financial problems in further processing -
if any ).
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2.
Handover components include:
-
Representatives of ministries, ministerial-level agencies or People's
Committees of provinces and cities directly under the Central Government and
representatives of the Ministry of Finance (for equitization of Economic Group,
Corporation, the parent company).
- Representatives
of Economic Group, Corporation, the parent company (if the equitization of
member enterprises of economic group, corporation, subsidiaries), Directors,
Chiefs Accountant of equitized enterprises representing the handing over party.
-
Chairman of the Management Board, director, chief accountant and representative
of trade union of the joint stock company representing the handed over party.
-
Representatives of the Corporation of Investment and Trade of State capital for
the equitized enterprises subject to transfer of the right to represent state
capital owner to the Corporation for Investment and Trade of the State capital.
3.
Handover record must contain the full signature of handover components and must
specify:
-
The situation of assets, capital and labor available at the time of handover.
-
The rights and obligations of joint stock company continued inheritance.
-
The existing problems that joint stock company shall continue to deal with.
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DETERMINATION OF VALUE OF EQUITIZED ENTERPRISES
SECTION
I. ORGANIZATION OF DETERMINATION OF ENTERPRISE VALUE
Article 12. Consultancy for determination of enterprise
value
1.
Equitized enterprises with total value of assets under accounting books from 30
billion VND or more, or the value of state capital under accounting books from 10
billion VND or more must hire the organizations functioning price valuation to
implement the consultancy to define enterprise value as prescribed in Article
22 of Decree No.59/2011/ND-CP.
2.
When organizations with the function of valuation are the auditing companies,
securities companies, domestic and foreign enterprises of valuation
(hereinafter referred to as a valuation consultancy organizations) register to
provide consultancy services determining value of equitized enterprises, must
meet the conditions specified in clause 5 of Article 22 of Decree No.59/2011/ND-CP
and to be of the list of eligible enterprises performing the evaluation function
notified annually by the Ministry of Finance.
3.
Based on the list of valuation consultancy organizations to be published, the
agency deciding equitisation chooses a valuation consultancy organization and is
responsible for its choice.
Where
there are two valuation consultancy organizations or more to registere to participate
in providing valuation consulting services for determining enterprise value,
agency deciding equitization conducts the form of bidding to select valuation
consultancy organization.
4.
Based on the decision to select valuation consultancy organization of the
agency deciding equitisation, director of equitized enterprise signs contract
with valuation consultancy organization. Consultancy contract for determining
enterprise value needs to be shown the full responsibilities of equitized
enterprise and the responsibilities of valuation consultancy organization and
the following contents:
a)
Method of valuation that consultants use to determine the enterprise value.
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Where
the equitized enterprises with large scale and specific characteristics (multi-matters,
handling of complex finance ...) required to prolong the time must be approved
by the agency deciding equitization.
c)
Responsibilities of equitized enterprises: equitized enterprises are
responsible for the implementation of the works related to the valuation, such
as inventory and classification of assets, financial processing, formation of the
plan of production, business, provision of relevant documents and take
responsibility before law for the accuracy and legality of the documents
provided.
d)
Responsibility of the valuation consultancy organization: valuation consultancy
organization is responsible for selection of methods of determining suitable enterprise
value to valuate, complying with the provisions of determining enterprise value;
clearifying the circumstances that value of revaluated assets lower than the
value of assets recorded in the accounting books and explaining other issues
related to the determination of enterprise value as required by the competent agency;
completing on time according to the signed contract; and being responsible for
the results of determining enterprise value.
Where
the results of determining enterprise value do not guarantee proper provisions
of the State, the agency deciding equitization shall send a written notice of
refusal to make payment for fees of performing services and consider to eliminate
from List of organizations eligible to participate in consultancy of valuation.
If causing damages to the State, the valuation consultancy organization must
pay compensation according to law provisions.
đ)
Costs of valuations and price of payment and settlement:
Valuation
consultancy costs shall be agreed by equitized enterprises and valuation
consultancy organization according to the bidding result. In case of not
bidding, the Equitization Steering Committee negotiates with valuation
consultancy organization on costs and submits to the agency deciding
equitisation for making decision. Cost level for equitization shall comply with
the provisions of Circular No.196/2011/TT-BTC dated 26/12/2011 of the Ministry
of Finance.
The
payment for valuation consultancy costs: When making a decision of publicizing
enterprise value, equitized enterprises make a payment equal to 80% of the
value specified in the contract. When having the decision approving the
equitization plan, equitized enterprises shall pay the remaining amount under
the contract to the valuation consultancy organization.
5.
In the process of implementing the equitisation plan, valuation consultancy
organization shall coordinate with the enterprise to explain the contents
related to the valuation.
6.
Equitized enterprises that are not subject to renting valuation consultancy
organization in accordance with provisions in clause 1 of Article 22 of Decree
No.59/2011/ND-CP, the enterprises shall self-determine enterprise value and
report to the agencies competent to decide the enterprise value. Where these enterprises
hire the consultancy organization to determine enterprise value, the
enterprises shall self-select valuation consultancy organization without
required to hold bidding. Other provisions for valuation consultancy
organizations and equitized enterprises in the implementation of hiring
valuation consultants to determine enterprise value shall comply with the
provisions of this Article.
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Valuation
consultancy organization selects the method of determining the value of the
enterprise:
1.
Asset method: means a method of determining the enterprise value based on the
actual value of all intangible, tangible assets of the enterprise at the time
of determining enterprise value.
The
bases for determining the enterprise value by the asset method as prescribed in
Article 30 of Decree No.59/2011/ND-CP include:
-
Financial statements, data by accounting books of the enterprise at the time of
determining the enterprise value.
-
Data of the inventory, classification and assessment of quality of the enterprise’s
assets at the time of determining the enterprise value.
-
Market price of assets at the time of holding valuation.
-
The value of the assigned land use rights, re-determined land rent value in
case enterprise has paid lump-sum for the entire lease period and the value of
goodwill of the enterprise.
2.
Discounted cash flow method is a method of determining the enterprise value
based on the profitability of the enterprise in the future, regardless of the
value of the assets of the enterprise.
Bases
to determine enterprise value under the discounted cash flow method as prescribed
in Article 35 of Decree No.59/2011/ND-CP include:
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-
Plans for production and business operations of enterprises in 03 to 05 years
after conversion into joint stock companies.
-
Government bond interest rate of 05 year term at the latest time, before the
implementation of determining enterprise value and cash flow discount
coefficient of the enterprise to be valued.
- The
value of the assigned land use rights, re-determined land rent value in case
enterprise has paid lump-sum for the entire lease period.
3.
Valuation consultancy organizations are selected other methods (other than the two
above methods) to determine the enterprise value. Other methods must ensure
scientifically and reflect the proper enterprise value, which are widely used
internationally and straightforward to apply in calculating the valuation of
the enterprise.
Article 14. State Audit for equitized enterprises
For
equitized enterprises subject to state audit in accordance with provisions in
Article 27 of Decree No.59/2011/ND-CP:
1.
Based on the decision approving the plan of arrangement and renewal of enterprise
has been approved by the Prime Minister, the agency deciding enterprises equitization
shall send notice of list, time (schedule) performing equalization of enterprises
to the State Audit agency for this agency to have programs, plan to audit results
of determining enterprise value of the valuation consultancy organization and
handle financial matters before officially announcing value of equitized
enterprise.
2.
After the valuation consultancy organization has completed the records of
result of determining enterprise value in accordance with provisions, agency deciding
equitisation shall send written notice to the State Audit agency together with
records of determining equitized enterprise value for this agency to audit the
results of determining enterprise value of the valuation consultancy
organization.
The
Equitization Steering Committee, equitized enterprises and valuation consultancy
organization shall provide documents and explanations of the contents related
to the handling of finance, determination of enterprise value of the valuation
consultancy organization as required by the state auditor.
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In
case of prolonged the duration to audit results of determining the enterprise value
of valuation consultancy organization under the provisions of Article 27 of
Decree No.59/2011/ND-CP, the State Audit Agency shall send a written request to
the agency that is competent to decide the publication of enterprise value for
coordination in handling to ensure the time to announce enterprise value as specified
in Article 15 of this Circular.
4.
The audit of results of determining the enterprise value of valuation
consultancy organization by the State Audit Agency for Parent company of
Economic Group, state corporations and other enterprises (including one member limited
liability company owned by equitized enterprise) is at the request of the Prime
Minister.
Article 15. Announcement of enterprise value
1.
Consultancy organization of determining the enterprise value together with equitized
enterprise make dossiers to determine the enterprise value, including:
a)
Financial statement of equitized enterprise established at the time of determining
the enterprise value.
Equitized
enterprises are responsible for auditing the annual financial statements
according to the State provisions for use upon determining enterrise value. If
the time of determining value of enterprise does not coincide with the time of annual
financial statements, the enterprises may use the quarterly financial statements
or financial statements made at the time of determining enterprise value (as
defined not required to audit) to determine the enterprise value as decided by
the agency deciding equitization of enterprises.
b)
Report of result of asset classification and handling of the existing financial
items of the enterprise.
c)
Minute of determining the enterprise value (Form of Minute as Appendix 1, 1a,
2, 2a together with this Circular).
d)
Copies of detailed records of problems arising requested for handling as
determining the enterprise value.
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2.
The decision to announce enterprise value
The
decision to publish the equitized enterprise value of the competent authority must
be appraised on the order and procedures, compliance with the provisions of
law on enterprise valuation as prescribed in Article 24 of Decree No.59/2011/ND-CP
by the Steering Committee of enterprises equitization.
a)
For the equitized enterprises when determining the value of enterprise not
subject to audit as prescribed in Clause 1 of Article 27 of Decree No.59/2011/ND-CP,
within a period not exceeding 10 days after receiving the report of the
Steering Committee of equitisation and dossier of determining the value of the
enterprise, agency that is competent to decide the value of enterprise issues
the decision to publicize the value of equitized enterprise.
b)
For equitized enterprises when determining the value of enterprise subject to
audit as prescribed in Clause 1 of Article 27 of Decree No.59/2011/ND-CP within
a period not exceeding 10 days after receiving the audit result of the State Audit
Agency, Equitization Steering Committee shall report to the agency deciding the
enterprise value, if consistent with the result of the State Audit Agency, within
the period not exceeding 10 days after receiving the report of the Steering
Committee of equitization, the agency deciding the enterprise value issues the
decision to publicize the value of equitized enterprise.
Where
agency that is competent to decide the value of equitized enterprise is not
consistent with the result of the State Audit Agency, they should organize to
discuss with each other or report to the Prime Minister for consideration and
decision before publicizing the value of enterprise within its jurisdiction.
3.
Time to publicize the value of equitized enterprise of the competent authority is
required to ensure away from the time of determining enterprise value not
exceeding 6 months in case of determining enterprise value by the method of
assets valuation and not more than 9 months for the case determining enterprise
value by the method of the discounted cash flow and other methods.
Where
the above time limit has exceeded but the value of equitized enterprise has not
been announced, agency deciding equitization shall consider, decide on
extending the time to publicize the value of enterprise but it must be ensured the
principle that publication of enterprise value and the organization of the
first sale of shares of equitized enterprise is away the time to determine
enterprise value not more than 12 months unless the particular cases decided by
the Prime Minister.
4.
For the economic groups, state corporations and enterprises operating in
specific sectors such as insurance, banking, telecommunications, aviation,
mining coal, petroleum, exploiting other rare mines decided by Prime Minister on
approving the equitization plan, Equitization Steering Committee sends report
and dossiers of determining the enterprise value to the Ministries managing its
branch, the People's Committees of provinces and centrally-run cities to make the
decision on publicizing enterprise value, and at the same time send to the
Finance Ministry to carry out supervision.
5.
Councils of Members of one member limited liability companies held 100% charter
capital by the State to be the parent companies of the economic groups; special
corporations decided to establish by Prime Minister are authorized by Prime
Minister to decide on announcing enterprise value, decide on approving the
equitization plan of the member enterprises. After making the decisions, the
Councils of members of economic groups, special corporations report to the central
Steering Committee of Innovation and Development of enterprises and the
Ministry of Finance for examination and supervision to ensure compliance with
provisions of legislation.
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Article 16. Adjustment of the value of the enterprises
1.
Equitized enterprises must adjust the value of the enterprise announced in
accordance with provisions in Article 26 of Decree No.59/2011/ND-CP.
2.
Responsibilities of equitized enterprises and the authorities that are
competent to decide equitization when adjusting enterprise value:
a)
Where because of objective reasons to affect the value of enterprise, equitized
enterprises must take the initiative to organize the inventory, determine the
extent of the loss and promptly report in writing to the agency that is
competent to decide equitization for consideration and decision on readjustment
of enterprise value.
Within
15 days after receiving the reports of equitized enterprises, the agencies that
are competent to decide equitization shall inspect and re-determine the value
of equitized enterprises and direct the Equitization Steering Committee to
coordinate with the enterprises to revise the plans of equitization.
b)
If after 12 months from the time of determining the enterprise value, the
enterprises have not made the sale of shares, the agency deciding equitization
must request the enterprises to suspend implementation steps of plan of
equitization approved, clarify the cause, handle responsibility for concerned
collectives and individuals. At the same time, direct the Equitization Steering
Committee to organize the re-determination of the enterprise value and adjust
the equitization plan (if necessary), the costs of redetermining enterprise
value and adjusting the plan of equitization (after deducting compensation of
the concerned individuals) is deducted from proceeds from equitization of
enterprises.
SECTION
II. DETERMINATION OF VALUE OF EQUITIZED ENTERPRISES BY THE METHOD ASSETS
Article 17. The actual value of the equitized enterprises
1.
Enterprise value by accounting books is the total value of assets shown in
balance sheet of the enterprises.
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3.
The actual value of the equitized enterprise does not include items not included
in the value of enterprise for equitization shall be considered the decision by
persons who are competent to decide the value of enterprise and take
responsibility before law for the accordance with the provisions of Article 29
of Decree No.59/2011/ND-CP.
4.
The actual value of the equitized enterprises includes land use right value as
prescribed in Article 31 and the value of goodwill as prescribed in Article 32
of Decree No.59/2011/ND-CP.
5.
For the financial institutions, credit institutions, when determining value of enterprise
by the method of assets, they are used results of audit of financial statements
to determine the capital assets in cash, debts, but required to make inventory
and evaluate fixed assets, long-term investments, unfinished expenses related expenses
for compensation, clearing, leveling and land use right value according to the
State regulations.
Article 18. Determination of the actual value of assets
of the enterprise
The
actual value of assets is determined in Vietnam dong. Assets that has been accounted
in foreign currencies are converted into Vietnam dong at the average exchange
rate on the inter-bank foreign exchange market announced by State Bank at the
time of determining enterprise value.
1.
For assets as in kind:
1.1.
It only revaluates assets which the joint stock company continues to use.
1.2.
The actual value of assets equals (=) The original price by the market price at
the time of valuation organization (x) The remaining quality of assets at the
time of valuation.
Of
which:
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- New
asset price of the same category being bought or sold on the market, including
transportation and installation costs (if any). If they are specific assets
that are not available on the market, the purchase price of assets is
calculated under the new purchase price of similar assets, with the same
producing countries, the same capacity or equivalent features. Where there is
no equivalent assets, it is calculated by the price of assets recorded on the accounting
books.
-
Unit price of basic construction, investment rate defined by the competent
agency at the time closest to the time of valuation for assets as basic
construction products. Where there is not regulations, it is calculated by the
book price, taking into consideration the drift of prices in basic
construction.
Particularly
for works newly completed construction within 03 years before determining the enterprise
value: use value of the work settlement approved by the competent authority. In
special cases, if the work has not been approved by the competent authority but
was put into use, temporarily calculated by the price recorded in accounting
books.
b)
The quality of assets is determined by the percentage compared with the quality
of assets of the same type procured newly or newly invested, constructed, in
accordance with State regulations on safety conditions in use and operation of
the assets; ensuring the quality of production products; environmental sanitation
under the guidance of the Ministry of managing economy, techniques. If there
is not state regulations, the quality of the assets as machinery, vehicles is
evaluated not less than 20% compared with the quality of assets of the same
type procured newly; of workshops, architectural objects is evaluated not less
than 30% compared with the quality of assets of the same type newly invested,
constructed.
1.3.
Fixed assets depreciated and recovered enough capital; working tools and management
instruments that have been allocated all value in business expenses, but the joint
stock company still continues to use, it must be reevaluated to include in the enterprise
value by the principle of not less than 20% of value of assets, tools,
equipment bought newly.
1.4.
For equitized enterprises having assets in kind as rubber garden, as valuation
of equitized enterprises, the value of rubber garden is determined under the
provisions of Circular No.132/2011/TT-BTC dated 28/9/2011 of the Ministry of
Finance.
2.
Monetary assets include cash, deposits and other valuable papers (bills, bonds,
...) of the enterprise are defined as follows:
a)
Cash is defined according to fund inventory records.
b)
Deposits are determined by the balance compared and confirmed with the bank
where the enterprise opens its account.
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3.
The receivable debts included in the enterprise value is determined by the
actual balance in the accounting books and after being compared shall be
handled as specified in Clause 2 of Article 9 of this Circular.
4.
The unfinished costs of production, business, investment in basic construction,
unfinished expenses related to compensation, site clearance, leveling and land
use right value shall be determined by actual arising accounted in the
accounting books.
5.
Value of assets of short and long term collateral, deposits is determined by
the actual balance in the accounting books which have been compared and
certified.
6.
The value of intangible assets (if any) is determined by the remaining value being
accounted in the accounting books.
7.
The value of goodwill
The
value of goodwill included in the value of equitized enterprises as stipulated
in Article 32 of Decree No.59/2011/ND-CP as brand name value, development potential
is determined as follows:
a)
The value of goodwill included in the value of equitized enterprises as brand name
value is determined on the basis of actual costs for the creation and protection
of trademarks, trade names in the process of the enterprise’s operation before
the time of enterprise valuation (including the costs of establishment of enterprise,
employees training costs, advertising costs incurred before the establishment
of enterprise, domestic and abroad advertising and dissemination costs to
promote and introduce products, company, building websites ...).
b)
The value of goodwill included in the value of equitized enterprises as the
development potential of the enterprises is evaluated on the basis of
profitability of the enterprise in the future when compared to the profit rate
of enterprise with interest rates of government bonds as follows:
The
value of goodwill of the enterprise
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Value
of the State capital in the accounting books at the time of valuation
x
tax
rate of after-tax profit on average equity three years prior to the time of
determining value of enterprise
-
The
interest rate of government bonds having a term of 5 years announced by the
Ministry of Finance at the time closest to the time of determining value of
enterprise
Of which:
-
The actual value of state capital in the accounting books at the time of
valuation (the time of determining value of enterprise) is determined by the
value of the enterprise by accounting book (as total value of assets shown in the
accounting balance sheet of the enterprise prescribed in Clause 1 of Article 17
of this Circular) except for liabilities under the accounting books at the time
of valuation.
-
Equity is defined include balance: investment capital of the owner - Account 411;
development investment fund - Account 414 and investment capital of basic
construction - Account 441 according to Decision No.15/2006/QD-BTC dated
20/03/2006 of the Minister of Finance on the issuance of corporate accounting
regime. The determination of the equity of the equitized enterprises as the
credit institutions is under the guidance of the State Bank of Vietnam.
- After-tax
profit rate is determined as follows:
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=
Average
after-tax profit of 3 consecutive years prior to the time of determining
value of enterprise
x
100%
Average
equity by accounting books of 3 consecutive years prior to the time of
determining value of enterprise
8.
The value of long-term investment capital of enterprises in other enterprises
shall be determined as prescribed in Article 33 of Decree No.59/2011/ND-CP. Of
which:
- Upon
determining the equity value of other enterprises to determine the value of
long-term investment capital of equitized enterprises in other enterprises
(non-joint stock companies), it is excluded undistributed profits (if any) used
to appropriate the reward fund, welfare fund, reward fund for the executive Board,
divide profit for general partners (under Resolution of the Council of members
of other enterprises).
-
The profits divided from other enterprises to the equitized enterprises,
equitized enterprises account in production and business results of
enterprises.
-
In case equitized enterprises with short-term investments (investments with a
term of less than one year) in other enterprises, the valuation of short-term
investments of equitized enterprises is performed as for the long-term
investments.
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The
determination of land use right value to include in the value of the enterprise
shall comply with the provisions of Article 31 of Decree No.59/2011/ND-CP, of
which:
9.1.
Before conducting the valuation of enterprises, equitized enterprises are
responsible for setting up plans for land use to submit to the competent agencies
for reviewing, making decisions to implement. Land use plans of the enterprise must
ensure compliance with the provisions of the plan on reorganization, processing
houses and land as decided by the Prime Minister and must be sent to the
People's Committees of provinces and centrally-run cities in the areas before
performing the valuation of enterprises. Enterprises may choose the form of
land lease or land allocation under the provisions of the Land Law.
Equitized
enterprises are responsible for sending written requests together with the land
use plans approved by the competent authorities, concerned dossiers and
documents on land to the local Departments of Finance where equitized
enterprises have used land. Within 30 working days after receiving complete
dossiers, the Finance Department coordinates with the concerned Departments,
Branches to determine land price to calculate for land use levy and submit to
the People's Committees of provinces and cities for making decision or
collecting the official opinion for the land area that the enterprises will
continue to use after equitization and land price as a basis for determining
enterprise value.
9.2.
Where enterprises choose the form of land allocation, the determination of land
use right value to calculate the enterprise value is implemented as follows:
a)
For the land areas that equitized enterprises are performing the form of land
lease changed to the form of land allocation with collection of land use levy
to state budget, must be calculated the value of land use right in the value of
equitized enterprises.
Land
price to determine the land use right value included in the value of equitized
enterprises shall comply with the provisions of Point a, Clause 2 of Article 31
of Decree No.59/2011/ND-CP.
Where
the People's Committees of provinces and cities directly under the Central
Government have not yet replied their official opinions on land prices
stipulated in point a clause 2 of Article 31 of Decree No.59/2011/ND-CP, the
agencies that are competent to decide value of equitized enterprises use land
prices announced by the People’s Committees of provinces and cities directly
under the Central Government at the latest time as prescribed by land law for
determining the value of land use rights included in the value of equitized
enterprises; at the same time, the agencies that are competent to decide plans
of equitization must direct the enterprises to publicize in the equitization
plan and disclose information when making the sale of initial shares for
investors to know that the equitized enterprises receive the allocation of land
and land prices applied to calculate temporarily the value of land use rights included
in the value of equitized enterprises.
When
performing the allocation of land, the People's Committees of provinces and
cities under central government review and determine officially the duty to pay
the land use levy allocated close to prices of transfer of the land use rights
with similar purpose of use on the market at the time of land allocation.
Equitized enterprises shall pay the entire amounts to the state budget
(including the difference with temporarily calculated price - if any) to be
granted land use right certificates in accordance with provisions of current
legislation on land.
Where
land prices applied to determine the land use right value included in the value
of equitized enterprises when determining the enterprise value have been
replied opinions by the People's Committees of provinces and cities under
central Government close to the actual price of transfer of land use right on
the market in the normal condition, when the joint stock companies are decided
to assign land by the competent authorities and the enterprises conduct
procedures for granting land use right certificates according Land Law and
documents guiding the implementation of the Land Law, joint stock companies
must pay land use levy by the land prices applied to calculate the land use
right value in the value of equitized enterprises (not required to adjust the
land price land according to the price at the time conducting land allocation to
the enterprise).
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c)
Where the equitized enterprises assigned land for construction of houses, infrastructure
for transfer or lease with transferring a part of area of building to other
agencies to use as head office or trading, the land use right value included in
the value of the enterprise is included only for the area of house,
infrastructure used by equitized enterprises (as fixed assets of the equitized
enterprises), it is defined as follows:
the
land use right value included in the value of the enterprise
=
the
land use right value allocated
-
the
land use right value distributed to the area of houses transferred
The
value of land use rights allocated to the area of transfer house is determined
on the basis of the selling price of each floor or by distribution coefficient
(x) with the house area of each object used as follows:
Distribution
coefficient is determined by the ratio of between house building land area and
total house area of the use objects.
Where
houses have basements, 50% of the basement’s area is added to the total house area
of objects used to calculate the distribution coefficient.
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đ)
Where the equitized enterprises assigned land for construction of houses,
infrastructure for sale, and land use levy required to pay when the allocation
of land under the provisions of the Land Law and documents guiding the
implementation of the Law Land included in the price of selling houses,
infrastructure to the buyers, shall not include land use right value in the
value of equitized enterprises.
e)
Where the enterprises implement conversion of land use purpose allocated it
must pay additionally the difference amount of value of land use right by the
purpose converted in accordance with provisions of land law to the state budget
and included in the value of equitized enterprises.
g)
Where the land use right value re-determined is lower than the actual cost of
land use right being accounted in accounting books is calculated by the price
enterprise is accounting.
9.3.In
case the enterprise performs the form of land rent:
a)
For rent land area by the method of paying the annual rent, the anual payable
rent under the provisions of the Land Law and documents guiding the
implementation of the Land Law shall be accounted in expenses of production,
business of the enterprise.
b)
For the equitized enterprises paid land rent once for the entire land lease
period prior to 01/7/2004 (effective date of the 2003 Land Law) must be
recalculated value of land rent at the land lease price at the time of
determining enterprise value.
Equitized
enterprises based on land lease contract, land lease unit price and leasing
land price defined by the People's Committees of provinces and cities where the
enterprises have leased land area to re-determine the value of land rent of the
remaining land lease period. The increased difference by determining the value
of land rent is calculated in the value of enterprises and increasing state
capital in the equitized enterprises at the time of enterprise valuation.
Joint
stock companies shall inherit (or resign the land lease contracts) and use land
for right purposes under the provisions of land law. Joint stock companies are
not required to pay rent for the remaining period of the land lease contract
paid land rent.
c)
For the equitized enterprises allocated land by the state with collection of
land use levy and paid land use fees into the state budget, now switch to
choose the form of land lease with payment for annual land rent, the land use
right value determined when conducting the previous land allocation is not
included in the value of the equitized enterprises.
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9.4.
Equitized enterprises are given priority of inheritance of rights and
legitimate interests on land use in accordance with provisions of the law on
land when converting into stock companies as stipulated in Clause 3 of Article
47 of Decree No.59/2011/ND-CP; the equitized enterprises allocated land and
paid land use fees into the state budget or received transfer of the lawful
land use right has re-determined land prices when determining the value of enterprises
at the prices closest to the actual price of land use right transfer with same
use purpose on market, value of land use rights increased due to redetermination
of land price have been recorded increase of the state capital in the equitized
enterprises, when making procedures of renewal of certificates of land use
rights from the equitized enterprises into joint stock companies, the joint
stock companies are not required to pay land use levy.
10.
When determining the enterprise value by the assets method, the entire value
constitutes the total enterprise value of assets and is calculated in the
actual value of the equitized enterprise, through the purchase of shares of
equitized enterprise to convert into assets of the joint stock companies
invested by capital of shareholders. The joint stock companies shall depreciate
and include in costs of doing business under the current regulations (for the
value of property increase of fixed assets); the other increased property values
included in the value of equitized enterprises: land use right value, the value
of goodwill, the enterprises are done gradual allocation into business expenses,
are deducted when determining the income subject to enterprise income tax
within a period of not exceeding 10 years since the equitized enterprises converted
into joint stock companies.
Article 19. The actual value of state capital in the enterprises
1.
The actual value of state capital in the enterprise is equal to the actual
value of the enterprise minus (-) of liabilities actually payable and the
balance of business funds (if any). In particular, liabilities actually payable
is the total value of the liabilities of the enterprise minus (-) debts are not
required to pay.
2.
When performing equitization of the parent company in the economic groups, the
State Corporations, the parent company in the combination of parent company -
subsidiary (hereinafter referred to as the parent company) is:
-
The subsidiaries owned 100% of charter capital by parent company (equitized enterprise)
must conduct determination of enterprise value as prescribed in this Circular
as for equitized enterprise, to determine the actual value of the parent
company’s the capital in the subsidiaries.
-
The actual value of the equitized enterprise (parent company) is the value of
parent company and value of the enterprises accounting-dependently parent
company defined under the provisions of this circular.
-
The actual value of the state capital at the parent company by the actual value
of the enterprise – parent company is defined as above except for the debts
actually payable and the balance of business funds (if any) as provided in general.
SECTION
III. DETERMINATION OF EQUITIZED ENTERPRISE VALUE BY THE METHOD OF DISCOUNTED CASH
FLOW
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1.
Determination of the enterprise value by the discounted cash flow method is the
method of determining the enterprise value based on the profitability of
equitized enterprises in the future, regardless of the value of enterprise’s
assets.
2.
Equitized enterprises determining value of enterprises according to discounted
cash flow method are the enterprises having had the operation time before
determining the enterprise value at least 5 years, with average after-tax
profit rate on State capital of 5 years preceding the determination of value of
equitized enterprises higher than interest rates of government bonds with a
term of 5 years issued at the time closest to the time of enterprise valuation.
3.
Under this method, data on profits, the state capital of equitized enterprises
in the past year is used to calculate when the determination of value of
equitized enterprises, based on data on profits, the state capital in
accordance with provisions of financial regulations for equitized enterprises.
Where
the equitized enterprises invest capital in other enterprises, the profits
brought from the investment of capital in other enterprises are the bases for
valuation of equitized enterprises.
4.
Under the discounted cash flow method, the determination of after-tax profit
figures for future years and use of this data to calculate norms (profit rate/capital;
growth rate of dividends) as a basis for converting value of dividends, capital
of the future years to the current year (year of determining value of
enterprises) is as follows:
-
Based on average growth rate of after-tax profit in the past year to determine
after-tax profit of the years in the future. If the enterprise uses after-tax
profit figures of the years in the future as profit of targets, plan, the
company must prove that profitable data of targets, plan is feasible.
-
The distribution of after-tax profit of the future years is agreed under the
assumption to use for the dividend as 50% and to supplement capital as 30%
(regardless of profits of future years when use for calculation is defined
according to the profitable data of the past years or according to the profitable
data of targets, norms).
5.
The actual value of the enterprise including the actual value of the State
capital, liabilities, business fund balance (if any).
Article 21. The actual value of state capital in the enterprises
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The
actual value of the State capital
=
+
+
The
difference in value of land use rights allocated, or difference in the amount
of land rent of number of years of land lease paid for the remaining amount
recorded state capital increases
In particular:
1. The targets and
determination of targets
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: means the current
value of dividends of the yeari
(1+ K)i
Pn
: means the current
value of the state capital of the yearn
(1+ K)n
i : order of the
following years from the year of determining value of enterprise (i:1
n).
Di : The
after tax profit used for distributing the yeari dividends.
n : means the number
of future years to be selected (3 - 5 years).
Pn : Value
of the yearn state capital and is determined by the formula:
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=
D
n+1
K
– g
D n+1:
The after tax profit used for distributing the yearn+1 expected
dividends
K
: The discount rate or required return rate of investors upon buying shares and
is determined by the formula:
K
= Rf + Rp
Rf
: Profit rate earned from investments without risk, this target is calculated
by interest rate of government bonds having a term of 5 years issued at the
time closest to the time of enterprise valuation.
Rp
: Risk surcharge rate upon investment in buying shares of companies in Vietnam,
this target is determined according to the risks surcharge index table for
international stock in the Prices Valuation or determined by valuation
companies for each enterprise but must not exceed the ratio of profit earned
from investments without risk (Rf).
g:
annual growth rate of dividends and is defined as follows:
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of
which: b is the ratio of the after tax profit left for capital supplement.
R is
the ratio of the after tax profit on average equity of future years.
2.
The difference in value of land use rights shall be determined as prescribed in
Clause 9 of Article 18 of this Circular.
Examples
for illustrating the valuation of enterprises according to discounted cash flow
method is under the guidance in Appendix 3, 3a, 3b together with this Circular.
Article 22. Determination of the actual value of the enterprises
1.
The actual value of the enterprise at the time of determining enterprise value
by the discounted cash flow method is defined as follows:
The
actual value of the enterprise
=
The
actual value of state capital
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Payable
debts in reality
+
Business
funds
In
particular:
Payable
debts in reality = Total liabilities in the accounting books minus (-) The
value of the debt not required to pay plus (+) Value of land use rights
required to pay to the state budget of allocated land area, transfer of purpose
of allocated land use is determined in accordance with provisions in Clause 9,
Article 18 of this Circular.
2.
Increased difference between the actual value of the State capital by the
discounted cash flow method and the value of state capital by the accounting
books at the time of determining enterprise value is included in the value of
equitized enterprises, through buying shares of equitized enterprises to
transfer into the property of joint-stock company invested with capital of
shareholders. Joint stock companies are accounted gradually into business
expenses, are deducted when determining the income subject to enterprise income
tax within a period of not exceeding 10 years from the time equitized
enterprises officially converted into the joint stock company.
SECTION
IV. DETERMINATION OF EQUITIZED ENTERPRISE VALUE BY THE OTHER METHODS
Article 23. Determination of equitized enterprise value
by the other methods
Apart
from two methods of determining the enterprise value specified in Section II,
Section III, Chapter III of this Circular; valuation organization determining
enterprise value is applied other valuation methods to determine the equitized
enterprise value. The methods of determining the enterprise value must ensure
science and reflect really the value of enterprise and applied widely by
international bodies, easy to understand, easy to use in the calculation; time of
determining the enterprise value by other methods must be the time ending
quarter or year closest to the time of equitization decision.
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1.
The results of determining the enterprise value by the discounted cash flow
method or other methods must be compared with the results of determining the
enterprise by the method of assets at the same time to choose by the principle:
value of the enterprise determined and announced shall not be less than the
enterprise value determined under the asset method.
2.
Records and results of determining the enterprise value identified and selected
according to the provisions of Decree No.59/2011/ND-CP and this Circular are
the bases for the competent agency to decide on publication of equitized
enterprise value, to determine the size of charter capital, structure initially-issued
shares and the price of initial point to auction sale of shares.
Chapter IV
ORGANIZATION OF IMPLEMENTATION
Article 25. Organization of implementation
1.
The equitized enterprises that have had decisions on publication of the
enterprise value prior to 05/09/2011 (effective date of Decree No.59/2011/ND-CP)
as stipulated in Decree No.109/2007/ND-CP dated 26/6/2007 of the Government and
Circular No.146/2007/TT-BTC dated 06/12/2007 of the Ministry of Finance shall
not be required to make adjustments of the enterprise value according to
guidance in this Circular.
2.
The equitized enterprises that the equitization plans approved by the competent
authorities under Decree No.109/2007/ND-CP dated 26/6/2007 of the Government, till
05/09/2011, the effective date of Decree No.59/2011/ND-CP dated 18/07/2011 of
the Government, that the enterprises have not been approved the financial statements,
determined value of state capital by the competent authorities at the time
equitized enterprises officially converted into joint stock companies, shall implement
financial handling for the financial investments and stock investment from the
time of determining value of enterprise to the time officially converted into
joint stock companies in accordance with provisions of Article 10 of this
Circular.
Article 26. Effect
1.
This Circular takes effect from February 15, 2012 and replaces the regulations
on financial handling and valuation of equitized enterprises in Circular No.146/2007/TT-BTC
on 6/12/2007 of the Ministry of Finance guiding Decree No.109/2007/ND-CP dated
26/6/2007 of the Government on the transformation of state companies into joint
stock companies.
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FOR
MINISTER
DEPUTY MINISTER
Tran Van Hieu