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THE MINISTRY
OF FINANCE
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.
220/2013/TT-BTC
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Hanoi,
December 31, 2013
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CIRCULAR
GUIDING
IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE GOVERNMENT’S DECREE NO.71/2013/ND-CP
DATED JULY 11, 2013, ON STATE CAPITAL INVESTMENT IN ENTERPRISES AND FINANCIAL
MANAGEMENT OVER ENTERPRISES THAT STATE HOLDS 100% OF CHARTER CAPITAL
Pursuant to the Government’s Decree No.
118/2008/ND-CP dated November 27, 2008, defining the functions, tasks, powers
and organizational structure of the Ministry of Finance;
Pursuant to the Government’s Decree No.
71/2013/ND-CP dated July 11, 2013, on state capital investment in enterprises
and financial management over enterprises that state holds 100% of charter
capital;
At the proposal of Director of the enterprise
finance Department;
The Minister of Finance promulgates Circular
guiding implementation of a number of articles of the Government’s Decree No.
71/2013/ND-CP dated July 11, 2013, on state capital investment in enterprises
and financial management over enterprises that state holds 100% of charter
capital;
Part 1.
GENERAL PROVISIONS
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This Circular guides a number of articles involving
capital investment, management over state capital invested in enterprises and
financial management over enterprises that state holds 100% of charter capital
in accordance with the Government’s Decree No. 71/2013/ND-CP dated July 11,
2013 (hereinafter abbreviated to Decree No. 71/2013/ND-CP).
Article 2. Subjects of
application
1. This Circular applies to subjects defined in
article 2 of Decree No. 71/2013/ND-CP.
2. Enterprises that State holds 100% of charter
capital operating in special sectors with specific regulations on finance shall
comply with specific regulations promulgated by competent agencies and
implement under other relevant contents specified in Decree No. 71/2013/ND-CP
and guides in this Circular.
3. Enterprises that state holds 100% of charter
capital shall, base on provisions of Law on enterprises, Decree No.
71/2013/ND-CP and guide in this Circular, promulgate regulations on capital
investment and financial management over subsidiary companies that enterprises
hold 100% of charter capital.
Article 3. Interpretation of
terms
Apart from terms construed as Article 3 of Decree
No. 71/2013/ND-CP, in this Circular, the following terms are construed as
follows:
1. “The raised capital of enterprise” means capital
that enterprise borrows from credit institutions, other financial
organizations, domestic and foreign individuals; issues bonds; receives
contribution capital and other forms of raising capital as prescribed by law in
serve of production and business.
2. “Assets of enterprise” include tangible assets
and intangible assets under management and use of enterprise which are formed
from the invested state capital, raised capital and other capital sources at
enterprises and reflected on accounting balance sheet of enterprise at a
defined time (excluding assets that enterprise hires for operation, borrows,
keeps, receives for subcontract, sale as agent, receives consignment).
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- Having shares, contribution capitals of which
owners are Ministries, Ministerial agencies, Governmental agencies (hereinafter
referred to as Ministries managing sector), or People’s Committees of provinces
and central-affiliated cities (hereinafter referred to as the provincial
People’s Committees).
- Having shares, contribution capital of One-member
limited liability companies which state owns 100% of charter capital.
Part 2.
SPECIFIC PROVISIONS
Chapter 1.
CAPITAL INVESTMENT AND MANAGEMENT OF STATE CAPITAL
INVESTED IN ENTERPRISES
SECTION 1. CAPITAL INVESTMENT
IN ENTERPRISES
Article 4. State capital
investment in enterprises
The state capital investment in enterprises shall
comply with section 1, chapter II of Decree No. 71/2013/ND-CP and guides as
follows:
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2. Investors and enterprises shall perform payment
of state capital for investment during the course of implementation of
investment projects and finalization of state capital for investment after
finishing projects in accordance with current regulations of state on managing
payment and finalization of investment capitals financed from state budget
capital sources.
3. The state capital investment for maintaining or
increasing rate of state capital invested in other enterprises must be approved
by competent authorities, ensure procedures in accordance with Law on
enterprises, law on investment, law on securities and the guiding documents of
competent agencies.
4. The state capital investment to re-purchase part
of capital or entire capital of enterprises in other economic sectors must
comply with plans elaborated by Ministries managing sector or the provincial
People’s Committee with appraisal opinions of the Ministry of Finance, the
Ministry of Planning and Investment and approved by the Prime Minister.
SECTION 2. MANAGEMENT OF STATE
CAPITALS INVESTED IN OTHER ENTERPRISES OF WHICH CAPITALS ARE OWNED BY THE
MINISTRIES MANAGING SECTORS, THE PROVINCIAL PEOPLE'S COMMITTEES
Article 5. To perform rights
and duties of owners for state capitals invested in other enterprises
Ministries managing sectors, the provincial
People’s Committees shall perform rights and duties of owners for state
capitals invested in other enterprises through representatives as prescribed in
Article 8 of Decree No. 71/2013/ND-CP. In which:
1. To elaborate regulations to inspect, supervise
activities of the representatives aiming to timely detect and handle
shortcomings, weakness of representatives in performing powers and duties of
owners as prescribed by law as basis for assessing the extent of finishing
tasks of representative as assigned by owner in managing state capital in other
enterprises.
2. To request the representative to quarterly,
annually or irregularly sum up, assess production and business, financial
situation and propose measures to handle, remove difficulties aiming to
increase efficiency of state capitals invested in other enterprises according
to Annex No. 02 promulgated together with this Circular, report to capital
owner and send to the Ministry of Finance (the enterprise finance department).
Time limit for submission of reports by representatives shall comply with
provisions on current time limit for submission of enterprises financial
statements.
3. To manage implementation of right to purchase
shares which are additionally issued, convertible bonds of representative and
take responsibilities when the representatives violate implementation of right
to buy shares which are additionally issued, convertible bonds specified at
Clause 2 Article 6 of this Circular.
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1. The representatives shall perform powers and
responsibilities in managing state capital invested in other enterprises as
prescribed at Clause 1, Clause 4 Article 9 and Clause 2 Article 10 of Decree
No. 71/2013/ND-CP and the regulation on operation of representatives
promulgated by the Ministry of Finance.
2. The representatives are entitled to buy shares
which are additionally issued, convertible bonds under decisions of joint-stock
companies specified at item c Clause 2 Article 9 of Decree No. 71/2013/ND-CP.
If a representative is appointed to act as
representative at many joint-stock companies, he is only entitled to select for
buying shares additionally issued, convertible bonds at one joint-stock company
where he is appointed to act as representative. He shall report to owner for
decision on implementation of his right to purchase shares as mentioned above;
his right to buy shares which are additionally issued, convertible bonds at the
remaining joint-stock companies which owners of state capital have right to buy
at other enterprises (except for case where representatives are entitled to buy
under right of existing shareholders).
Article 7. Increase and
decrease of state capitals invested in other enterprises of which owners are
the ministries managing sectors, the provincial people's committees
1. When other enterprises have plan on increasing
charter capital, the representative must elaborate plan on adding state capital
invested in other enterprises and report to owner for decision as prescribed in
Article 7 of Decree No. 71/2013/ND-CP. Plan on adding capital includes
contents:
a) Legal basis for increasing capital of other
enterprises.
b) Financial status, result of production and
business of other enterprises in 03 years before performing plan on increasing
capital.
c) Strategy, plan on production and business, plan
on development investment and use of the increased capital source of
enterprise.
d) Assessment on economic benefits attained and
influences of increasing the investment capital of State in other enterprises.
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2. Case of plan on adding capital to invest in
other enterprises from fund for supporting the enterprise arrangement and development,
ministries managing sectors, the provincial People’s Committees shall make
dossier and send to the Ministry of Finance for appraisal and submission to the
Prime Minister for consideration and decision.
3. For other enterprises not operating in sectors,
fields that State needs further invest more capital according to criteria, list
of state enterprise classification as promulgated by the Prime Minister,
Ministries managing sectors, the provincial People’s Committees shall consider
and decide on transfer of right to buy shares that are issued additionally,
convertible bonds to other organizations and individuals.
The principle in transferring right to buy shares,
convertible bonds shall comply with method of open auction. The determination
of reserve price shall be performed through an organization with price
appraisal function as prescribed by law on price appraisal. In case where
duration for shareholders to perform right to buy shares, convertible bonds
under the issue plan of joint-stock company is short, not enough for
organization of auction and transfer, owner may consider and decide on transfer
price under regulations and ensure efficiency.
Persons competent to decide on transfer of right to
buy shares, convertible bonds are not entitled to decide on transfer to
enterprises of which managers are their spouses, father, adoptive father,
mother, adoptive mother, children, adoptive children, brothers and sisters and
not entitled to decide on transfer to all individuals with relation as above.
4. Amounts received from transfer of right to buy
shares, convertible bonds at other enterprises after deducting costs related to
transfer of right to buy shares, finishing tax liabilities as prescribed by
law, the rest will be remitted to fund of support for enterprise arrangement
and development.
5. The ministries managing sectors, the provincial
people's committees which are owners shall implement reduction of a part of
capital or recovery of entire state capital invested in other enterprises
according to the method of transfer specified in Article 8 of this Circular.
SECTION 3. TRANSFER OF STATE
CAPITAL INVESTED IN ENTERPRISES
Article 8. Method to transfer
state capital invested in enterprises
Method to transfer the state capital invested in
enterprises shall comply with Article 14 of Decree No. 71/2013/ND-CP and guides
as follows:
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2. Transfer of state capital at One-member limited
liability companies to become limited liability companies with two or more
members:
a) The transfer of a part of state capital at
One-member limited liability companies that state holds 100% of charter capital
according to plan on enterprise arrangement and renovation already approved by
the Prime Minister.
b) Transfer of capital under form of open auction
or direct agreement:
- The open auction when transferring capital valued
from 10 billion VND or more shall be performed at the Stock Exchange (SE). In
case of transfer of capital valued less than 10 billion VND, enterprises may
hire a financial organization as auction agent, or self-organize auction at
enterprises, or perform auction at the Stock Exchange (SE).
- Sale by direct agreement between capital owner
(or function agencies which are authorized by owners, assigned tasks in
writing) with investor in case there is only one investor registering for
purchase or cases already allowed by the Prime Minister for sale by direct
agreement.
When transferring capital under direct agreement
form, persons competent to decide on transfer of capital transfer are not
entitled to decide on transfer to enterprises of which managers are their
spouses, father, adoptive father, mother, adoptive mother, children, adoptive
children, brothers and sisters and not entitled to decide on transfer to all
individuals with relation as above.
- The determination of reserve price for state
capital before organizing open auction or agreement which is performed through
an organization with price appraisal function as prescribed by law on price
appraisal must ensure the principle in which the actual values of state capital
at enterprise are determined fully including values created by the land use
right values and values of intellectual property right (if any) of enterprise
as prescribed by law, at time of capital transfer.
3. Transfer of state capital invested in Limited
Liability Companies with two or more members or at Joint-stock companies:
a) Ministries managing sectors, the provincial
People’s Committee shall, base on investment portfolio at enterprises not in
sectors, fields state holds capital, direct the representative to make plan on
capital transfer to report to the owner for deciding on capital transfer plan
after having opinions of the Ministry of Finance, the Ministry of Planning and
Investment as prescribed in Article 15 of Decree No. 71/2013/ND-CP.
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- Legal grounds, purpose of capital transfer.
- Assessment on benefits attained and influences of
transferring the State capital invested in other enterprises.
- Form of capital transfer.
c) Transfer of state capital invested in Limited
Liability Companies with two or more members:
- If owner of state capital requests a Limited
Liability Company with two or more members to re-buy its contributed capital,
the determination of transfer price shall comply with Article 43 of the 2005
Law on enterprises.
- If owner of state capital transfers its capital
to other member or transfer to organizations and individuals not being members
in company, it must comply with Article 44 of the 2005 Law on enterprises, in
which:
+ Case of transfer to other members in company, the
owner of state capital must agree transfer price with other members. The
determination of sale price shall be agreed on the basis of price appraisal
result made by an organization with price appraisal function as prescribed in
Clause 2 of this Article.
+ Case of transfer to organizations and individuals
not being members in company, the open auction or direct agreement as
prescribed at Clause 2 this Article 44 shall be applied.
d) Transfer of state capital in joint-stock
companies:
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- For joint-stock companies not yet been listed or
registered for transaction on Ucom floor, the capital transfer shall comply
with clause 2 this article.
Chapter 2.
FINANCIAL MANAGEMENT OF
ENTERPRISES WHICH STATE HOLDS 100% OF CHARTER CAPITAL
SECTION 1. CAPITAL MANAGEMENT
OF ENTERPRISES
Article 9. Determination of
charter capital level
The determination of charter capital level and
investment in charter capital for enterprises shall comply with Article 18 of
Decree No. 71/2013/ND-CP, specified:
1. For enterprises have just been established:
a) Dossier to determine charter capital:
- Investment projects, scheme on enterprise
establishment approved by competent authorities;
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b) Method to define charter capital:
- New enterprises established on the basis of
projects on investment in works construction already been finished and put into
operation, the charter capital level of enterprises shall not exceed 30% over
total capital for investment in works construction already been approved by
competent authorities.
If an investment project has investment capital of
state more than the rate of 30% over total investment capital forming assets of
enterprises, the charter capital level shall be determined equal to the capital
invested by state.
- For newly-established enterprises not associating
to project on investment in works construction, base on scale, tasks, business
trades determined in scheme on establishment to decide on the initial charter
capital level ensuring for enterprise to operate normally.
- Newly-established enterprises with trades in
fields required to have legal capital as prescribed by law, and trades in
fields not required to have legal capital, the charter capital of enterprise
shall be determined not less than the legal capital under business trades of
enterprise.
2. For enterprises which are operating:
a) The principles to adjust increase of charter
capital level:
- Determination of demand and adjustment of charter
capital of enterprises which are operating must base on objectives, tasks,
strategies of development and expansion of scale, trades in production and
business of enterprises under plans, planning already been approved by
competent authorities.
- The adjustment to increase charter capital of
enterprise must base on capital demand to perform investment, asset procurement
projects in serve of the main production and business activities of enterprise;
capital demand for production of products, trading in goods, services; capital
demand for investment outside enterprise under plan already been approved by
competent authorities.
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- If passing 03 years, enterprise still has not
enough sources to add sufficient charter capital as approved, the owner shall
base on situation of enterprise to re-adjust objectives, tasks and strategies
of development under the plan assigned to enterprise or in necessary case, to
perform task of production and business already been approved, the owner shall
allocate additionally lack of charter capital to enterprise as prescribed at
Clause 4 Article 19 of Decree No. 71/2013/ND-CP.
b) Method to define adjustment to increase charter
capital: Enterprises may determine under the following general formula:
Vdl
re-adjusting
=
Vdl approved
+
30% of total
capital demand for investment, procurement to form assets in serve of main
business activities of enterprise
+
Vsxsp-kdhhdv
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- Vdl approved means the charter capital
already been approved by competent authorities before adjustment.
- Total capital demand for investment, procurement to
form assets in serve of main business activities of enterprise includes:
+ Total investments of investment projects approved
by competent authorities in list of 5-year development investment plan or in
planning on sector development already been approved by competent authorities.
For projects with implementation duration of more than 03 years, the investment
level as the basis for re-determining the charter capital of enterprise shall
only be calculated under capital demand to perform project in duration of
adjusting charter capital in 03 years (not calculated under the investment
level of entire project).
+ Case where investment project has been finished
but not yet been included in determination of charter capital of previous
adjustment, it may be included in determination to adjust charter capital at
this time.
+ Projects, construction works invested by mixture
capital source in which include capital invested from state budget, base on
capital level invested from state budget for project to record the increase of
charter capital of enterprise.
+ Case of project on investment in works
construction (of which investor is other agency or unit) handed over for
enterprise to manage, exploit, use, entire invested state capital of project
under finalization of project on investment in works construction already been
approved by competent authorities shall be included in the increase of the
adjusted charter capital.
+ In case where an investment project which is
performing and is temporarily stopped under decision of competent authorities
or is adjusted scale, enterprise must base on demand of project investment
capital under decision on adjustment of competent authorities to determine
(re-adjust) the charter capital level of enterprise.
+ In case where enterprise has plans to invest
outside enterprise already been approved, base on rate of capital contribution
of enterprise at subsidiary companies, associate companies to calculate total
investment capital of projects when determining the charter capital of enterprise.
- Vsxsp-kdhhdv means capital demand for
production of products, trading in goods and services of enterprise.
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Vsxsp-hhkd
= 30% x
The increase difference between total capital demand
for production of products, trading in goods and services till the third year
from the year of re-determining the charter capital level in comparison with
capital demand for production of products, trading in goods and services
implemented in previous year of year the charter capital level is
re-determined.
The increase difference between total capital
demand for production of products, trading in goods and services till the third
year from the year of re-determining the charter capital level in comparison
with capital demand for production of products, trading in goods and services
implemented in previous year of year the charter capital level is re-determined
shall be calculated by basing on the implementation turnover of production and
business activities in the audited financial statements of enterprises in
previous year of year charter capital level is re-determined and the annual
average turnover growth rate under the 5-year production and business plan
already approved by competent authorities calculated till the third year from
the year of re-determining the charter capital level.
Example:
+ In 2014, enterprise request for determination and
adjustment to increase charter capital; in 2013 (the previous year of year the
charter capital is re-determined) the implemented turnover of production and
business recorded in financial statements of enterprise is 1000 billion VND.
+ According to the 5-year plan on production and
business of enterprise already been approved, the annual average turnover growth
rate of the 5-year plan is 5%/year.
+ In 2016 (the third year since the charter capital
is re-determined and in duration of the approved 5-year production and business
plan).
+ The increase difference of capital demand for
production of products, trading in goods and services for each year till the
third year (2016) since the charter capital is determined shall be determined
as follows:
In 2014, 1000 billion VND x 5% = 50 billion VND.
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In 2016, (1000 billion VND + 50 billion VND + 52.5
billion VND) x 5% = 55.12 billion VND.
+ The increase difference between total capital
dement for production of products, trading in goods and services till the third
year (2016) in comparison with the previous year of year the charter capital is
re-determined (2013) as the basis for adjustment to increase charter capital of
enterprise shall be: 157.62 billion VND (50 billion VND + 52.5 billion VND +
55.12 billion VND).
+ The increased charter capital for production of
products, trading in goods and services of enterprise calculated for 3 years
from 2014 thru 2016 shall be: Vsxsp-kdhhdv = 30% x 157.62 billion
VND = 47.2 billion VND.
c) Dossier and order of approval:
Dossier includes:
- Decision on approving the charter capital level
of competent authorities before adjusting to increase the charter capital of
enterprise.
- Plan on adjusting the charter capital of
enterprise, including:
+ A written explanation on method to determine the
adjusted charter capital level and the enclosed concerning documents to prove
(such as decision on approving the 5-year plan; decisions concerning approval
of projects on construction investment or decisions concerning the temporary
stop of investment project, decision on adjusting objectives, tasks of plan on
production and business, tasks as assigned by state…)
+ Explanations on capital sources to add charter
capital (as prescribed at Clause 4 Article 18 of Decree No. 71/2013/ND-CP).
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Order of approval:
- For enterprises which are established under
decisions of the Prime Minister, make a dossier under regulations and send it
to Ministry managing sector, within 15 days after receiving dossier of
enterprises, the Ministry managing sector shall check dossier to ensure it made
under regulations and send a written request (enclosed with dossier of
enterprise) to the Ministry of Planning and Investment for giving out opinions
and the Ministry of Finance for appraisal. Within 15 days, after receiving a
written request of the Ministry managing sector and dossier of enterprise, the
Ministry of Planning and Investment and the Ministry of Finance shall reply in
writing and send to the Ministry managing sector to finish dossier and report
to the Prime Minister for decision on adjusting the charter capital level of
enterprise.
- For enterprises which are established under
decisions of the Ministries managing sector, make a dossier under regulations
and send it to Ministry managing sector, within 15 days after receiving dossier
of enterprise, the Ministry managing sector shall check dossier to ensure it
made under regulations and send a written request (enclosed with dossier of
enterprise) to the Ministry of Finance for agreement opinion. Within 15 days,
after receiving the written request of the Ministry managing sector and dossier
of enterprise, the Ministry of Finance shall send a written agreement on
charter capital level and source for adding charter capital of enterprise to
the Ministry managing sector to decide on adjusting the charter capital level
of enterprise under its competence.
- For enterprises established under decisions of
the provincial People's Committees, make dossier under regulations and send it
to the provincial People's Committee. Within 15 days, after receiving dossier
of enterprise, the provincial People’s Committee shall check dossier to ensure
it made under regulations, appraise data and decide on adjusting the charter
capital level of enterprise under its competence.
- During receipt and handling of dossiers of
adjusting the charter capital level of enterprises, in case where a dossier of
an enterprise fails to ensure to be made under regulations, within 15 days
after receiving dossier, the Ministry managing sector (for enterprises managed
by central level), the provincial People’s Committees (for enterprises managed
by local level) and relevant agencies, shall have a written request for such
enterprise to supplement and complete dossier in accordance with regulations,
case of refusal for dossier of adjusting the charter capital of enterprise,
competent authorities and relevant agencies must send a reply in writing
(stating reason thereof) to enterprise.
Article 10. Raising capital of
enterprises
1. Enterprises shall raise capital in accordance
with Article 19 of Decree No. 71/2013/ND-CP.
2. Enterprises are entitled to guarantee for
subsidiary companies which enterprises own 100% of charter capital or
subsidiary companies which enterprises have dominant shares or contribution
capital for borrowing loans at banks or credit institutions as prescribed by
law. In which:
a) Subsidiary companies guaranteed by enterprises
must have strong financial status, no overdue debts, the guarantee for
borrowing loans to perform investment projects must base on efficiency
appraisal of project; the guaranteed companies must make a commitment on
ensuring solvency for the guaranteed loans.
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Concurrently, total values of guaranteed loans for
subsidiary companies does not exceed equity capital of enterprises and in
limitation of payable debt coefficient over equity capital specified at Clause
3 Article 19 of Decree No. 71/2013/ND-CP.
c) The actual contribution capital of enterprise at
a subsidiary company is determined as follows:
- For a subsidiary company which enterprise owns
100% of charter capital, the value of actual contribution capital of enterprise
shall be determined by basing on equity capital (code 410) on the accounting
balance sheet in financial statements of last quarter in comparison with time
of guarantee of subsidiary company.
- For a subsidiary company which has dominant
shares, contribution capital of enterprise, the value of actual contribution
capital of enterprise shall be determined by basing on equity capital (code
410) on the accounting balance sheet in financial statements of last quarter in
comparison with time of guarantee of subsidiary company multiplied (x) to rate
of contribution capital of enterprise according to the charter capital of the
guaranteed subsidiary company.
d) If an enterprise conducts guarantee in excess of
level specified above or decide on guarantee resulting loss of its capital and
assets, person competent to decide on guarantee shall be responsible as
prescribed by law.
dd) Contracts of guarantee for borrowing loans of
enterprises for subsidiary companies which are performed under the Circular No.
117/2010/TT-BTC dated August 05, 2010 of the Ministry of Finance shall be
further performed until they are expired as signed.
3. Enterprises without operational function of
credit institutions as prescribed by Law on credit institutions shall not be
entitled to use their capital for providing loans to other enterprises,
organizations and individuals. In special case, enterprises must report to
owners to submit to the Prime Minister for decision.
Article 11. Operation of
capital investment outside enterprises
1. Enterprises may conduct the outside investment
in accordance with Articles 29, 30, 31, 32 and 33 of Decree No. 71/2013/ND-CP.
In which:
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b) For investment outside enterprises, when
receiving quantity of shares issued by joint-stock companies without payment in
money (including quantity of shares received and being monitored by quantity in
the description of periodical financial statements under regulations),
enterprises must monitor and make entries in accounting books of enterprises, specified:
- For shares received where joint-stock companies
divide dividend (dividing dividend by shares), enterprises must account to
increase turnover of financial operation and increase value of investments
outside enterprises proportional to the divided dividends.
- For the remaining shares received without payment
(shares received not from dividend division), enterprises may base on quantity
of received shares and face value of shares to record increase of turnover from
financial operation and increase value of investments outside enterprises.
2. Enterprises transfer outside investment capital
in accordance with Article 30 of Decree No. 71/2013/ND-CP and guides as
follows:
a) Method to transfer capital invested outside
enterprises:
- The transfer of capital invested outside
enterprises at subsidiary companies being One-member limited liability
companies which enterprises hold 100% of charter capital to transform into
limited liability companies with two members or more shall be conducted under
form of open auction or direct agreement as prescribed at Clause 2, Article 8
of this Circular.
- The transfer of capital invested outside
enterprises at subsidiary companies being limited liability companies with 02
or more members shall comply with point c Clause 3, Article 8 of this Circular.
- The transfer of capital invested outside
enterprises at joint-stock companies shall comply with point d Clause 3,
Article 8 of this Circular. Especially the hire of an organization to conduct
auction and determination of the sale price in case of agreement sale,
enterprises shall comply with point c Clause 1 Article 30 of Decree No.
71/2013/ND-CP.
- According to Clause 2 Article 30 of Decree No.
71/2013/ND-CP, the transfer of capital invested outside enterprises must comply
with principles of market price at time of sale. In which:
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+ If appropriation of provision is still less than
difference between the value of investment recorded on accounting books and the
tentative transfer value, Members' Council or president of company must report
to owner for consideration, decision before transfer.
- For transfer of bonds which enterprises have
invested to enjoy interest, the transfer shall comply with regulations upon
issuing or the issue plan of the issuers. If an enterprise transfers bonds
sooner than term, the transfer price must ensure the principle of recovering
sufficient the invested values and having interest.
For transfer of bonds registered for deposit, list
and transaction on securities market, enterprises shall comply with law on
securities.
b) Accounting of revenues from transfer of outside
investments:
Amounts collected from transfer of investments
outside enterprises after deducting value of invested capital recorded on
accounting books of enterprises, costs for transfer and implementation of tax
liability under regulations, enterprises may account the rest in business
result of enterprises.
Article 12. Preservation of
capital at enterprises
Enterprises are responsible for preservation and
development of equity capital at enterprises as prescribed in Article 34 of
Decree No. 71/2013/ND-CP, specified:
1. Preservation of capital:
Base on criteria of interest, loss of enterprises
under the quarter and annual financial statements to assess the extent of
preservation of capital of enterprises
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H =
equity capital of
enterprise at time of report
equity capital of
enterprise at end of previous term of report time
In which:
- equity capital of enterprises to determine the
extent of preservation of capital includes the investment capital source of
owner (code 411), fund for development investment (code 417), capital source of
fundamental construction (code 421) on the accounting balance sheet according
to the quarter or annual financial statements (Form No. B 01-DN promulgated
together with Decision No. 15/2006/QD-BTC dated March 20, 2006, of Minister of
Finance and the amended and supplemented documents, if any).
- When determining coefficient of preservation of
capital under regulations mentioned above, enterprises must remove objective
elements influencing to change of capital in the report term such as: State
capital invested additionally in enterprises, state capital transferred from
other places
Method to assess the extent of preservation of
capital: If H coefficient – 1, enterprise preserved capital, if H coefficient
> 1, enterprise developed capital.
b) In case where an enterprise suffers loss (fails
to preserve capital), Members' Council or president of company must have a
report to send it to owner and the Ministry of Finance about cause of loss,
failing to preserve capital. Owner shall base on loss status of enterprise to
decide on conducting financial supervision, or special financial supervision
for enterprise under current regulations.
The settlement of loss of Enterprise shall comply
with current law on enterprise income tax.
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Enterprises conduct methods to preserve capital as
prescribed at Clause 2 Article 34 of Decree No. 71/2013/ND-CP, in which the
setting up of provisions including provision for inventory price reduction;
provision for bad debts; provision for loss of long-term financial investments;
provision for product, goods and construction and installation works warranty
shall comply with Circular No. 228/2009/TT-BTC dated December 07, 2009 and
Circular No. 89/2013/TT-BTC dated June 28, 2013 of the Ministry of Finance
(hereinafter abbreviated to regulations on appropriation of provision of the
Ministry of Finance). For outside investments, enterprises may conduct
appropriation of provision under regulation on appropriation of loss provision
for long-term financial investments at the Circular mentioned above.
SECTION 2. MANAGEMENT AND USE
OF ENTERPRISES’ ASSETS
Article 13. Management and use
of fixed assets
1. Enterprises shall invest, build, procure,
manage, use and depreciate fixed assets during business operation as prescribed
in articles 20, 21, 22, 23 of Decree No. 71/2013/ND-CP, Circular No.
45/2013/TT-BTC dated April 25, 2013 of the Ministry of Finance, guiding
regulation on management, use and depreciation of fixed assets and the
amending, supplementing or replacing Circulars (if any).
2. For typical business trades with specific
regulations on investment, procurement, management and use of fixed assets
under specialized sectors, apart from implementation of regulations mentioned
above, regulations of specialized legal documents shall also be applied.
3. The liquidation and sale of fixed assets of
enterprises shall comply with Clauses 2, 3 Article 23 of Decree No.
71/2013/ND-CP and guides as follows:
a) Assets subject to liquidation or sale:
Enterprises are entitled to take initiative to
perform liquidation or sale of fixed assets which has broken, has obsolete technique,
which enterprises has no use demand or fail to use in order to recover capital.
b) Order of and procedures for liquidation or sale
of fixed assets:
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- Tasks of Council for liquidation or sale of
enterprise’s fixed assets:
+ To determine actual technical conditions, the
remaining value of assets subject to liquidation or sale.
+ To determine causes, responsibilities of relevant
collectives and individuals in case where a fixed asset newly invested fails to
bring economic efficiency, must sell but has no ability to recover sufficient
investment capital, case where asset has not yet been depreciated but has
broken and cannot be repaired, must conduct liquidation for sale so as to
report to owners for handling under regulations.
+ To organize determination or hire an organization
with price appraisal function to determine value may be recovered of assets
subject to liquidation or sale.
+ To organize auction or hire an organization with
function of auction of kinds of assets subject to liquidation or sale as
prescribed by relevant law.
- Council for asset liquidation or sale shall
terminate operation by itself after finishing liquidation or sale of
enterprise’s fixed assets.
c) The accounting of turnover and costs involving
liquidation and sale of fixed assets of enterprises shall comply with Clause 3
Article 35 and Clause 2 Article 36 of Decree No. 71/2013/ND-CP.
d) When an enterprise perform a project on
construction investment approved by competent authorities, and it must
dismantle or destroy the old fixed assets, the handling and accounting of old
fixed assets upon being dismantled or destroyed of enterprises shall be
implemented like case of liquidation or sale of fixed assets.
Article 14. Inventory
management of enterprises
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1. Enterprises must elaborate regulation on
managing goods, raw materials, materials, tools and instruments in stock, on
transport; unfinished products during production, finished products not put
into store, finished products in stock, finished products sent for sale. The
regulation must define clearly the coordination of each division in enterprise
and responsibilities of each division, each individual related to monitoring,
management of assets of enterprises mentioned above.
2. For inventory subject to appropriation of
provision, the set up and use of provision for price reduction of inventory
shall comply with guide on appropriation of provision of the Ministry of
Finance.
Article 15. Management of
collectible debts
1. The management and handling of collectible debts
of enterprises shall comply with clause 1 Article 25 of the Government’s Decree
No. 71/2013/ND-CP and Decree No. 206/2013/ND-CP dated December 09, 2013, on
managing debts of enterprises which state holds 100% of charter capital.
2. For collectible debts subject to appropriation
of provision, the set up and return of provision of bad collectible debts shall
comply with guide on appropriation of provision of the Ministry of Finance.
Article 16. Handling of
exchange rate differences
The recording, assessment and handling of exchange
rate differences in enterprises shall comply with Article 26 of Decree No.
71/2013/ND-CP, and Circular No. 179/2012/TT-BTC dated October 24, 2012 of the
Ministry of Finance, on the recording, assessment, and settlement of the
exchange differences in enterprises and the amending, supplementing or
replacing Circulars (if any).
SECTION 3. MANAGEMENT OF
TURNOVER, COSTS AND DISTRIBUTION OF PROFIT
Article 17. Management of
turnover, other incomes and costs of enterprises
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1. Members' Council or president of company General
Director, Director of enterprise shall be responsible before owner and before
law, for managing strictly, ensuring the accuracy and legality of turnovers,
other incomes and costs from production and business of enterprise.
2. All turnovers, other incomes and costs from
production and business of enterprise that arise must have sufficient vouchers
under law on accounting and be reflected sufficiently in accounting books of
enterprise according to the current regulations on accounting in enterprises.
3. Turnover and other income shall be determined in
Vietnam dong, cases of collection in foreign currency must be converted into Vietnam dong as prescribed by law.
4. Enterprises must calculate rightly, sufficiently
costs for production and business, cover all costs with revenues of enterprises
and take responsibilities for their results of business operation.
Article 18. Distribution of
profit
Distribution of profit of enterprises shall comply
with Article 38 of Decree No. 71/2013/ND-CP. In which:
1. Basis to set up the fund of commendation, fund
of welfare, fund of reward for managers of enterprises shall be determined as
follows:
a) Regarding classification of enterprises A, B, C
as the basis for setting up of funds shall comply with guides of regulation on
financial supervision and assessment on operation efficiency and disclosure of
financial information for State-owned enterprises and enterprises with state
capital promulgated together with Government’s Decree No. 61/2013/ND-CP dated
June 25, 2013 and Circular No. 158/2013/TT-BTC dated November 13, 2013 of the
Ministry of Finance.
b) Regarding the implementation monthly wage as the
basis for setting up of funds:
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- For set up of fund of reward for managers of
enterprises: Base on the fund of the implementation wages and remunerations for
managers (full time and part time) defined in Government’s Decree No.
51/2013/ND-CP dated 14/5/2013, on wages, remunerations, and bonuses of members
of the member assembly, the company’s president, the controller, the general
director or director, the deputy general director or deputy director, and the
chief accountant of state-owned single member limited companies, divided (:) by
12 months.
2. President of Members' Council or president of
company decides allocation of fund of commendation and fund of welfare after
reaching unified opinion with the Executive Board of Trade Union of enterprise.
3. The remaining profit after distribution and
setting up of funds under regulations, enterprises shall remit to fund of
support for enterprise arrangement and development as prescribed at point dd,
Clause 3, Article 38 of Decree No. 71/2013/ND-CP.
Members' Council or president of company shall
direct General Director or Director to finish remittance of profit to the fund
of support for enterprise arrangement and development before June 30 of next
year of report year. If an enterprise delays remittance (remittance after 30/6)
or fails to remit, apart from assessment on extent of failing to finish tasks
of managers of such enterprise, such enterprise must pay interest of fine due
to delay, be applied coercive measures under regulation on management and use
of fund of support for enterprise arrangement and development promulgated
together with Decision No. 21/2012/QD-TTg dated 10/5/2012 of the Prime Minister.
For the remaining profit of 2013 and 2014 after
setting up funds according to Decree No. 71/2013/ND-CP and guide in this
Circular, the enterprises shall remit them according to Government’s Decree No.
204/2013/ND-CP dated 05/12/2013, detailing and guiding implementation of
National Assembly’s Resolution on some solutions to perform state budget in
2013, 2014 and guides in Circular No. 187/2013/TT-BTC dated 02/12/2013 of the
Ministry of Finance.
4. For enterprises directly serving defense,
security, enterprises established to perform essential and regular tasks of
stabilizing production and providing public products and services as assigned
by state under plan, apart from profit distribution as prescribed in this
Circular, enterprises shall be enjoyed the support regime from fund of
commendation and fund of welfare according to specific regulation of
Government.
Article 19. Use of funds
1. Use of fund for development investment, fund of
commendation, fund of welfare and fund of reward for managers of enterprises
shall comply with Clauses 2, 3, 4, 5, 6, 7 Article 39 of Decree No.
71/2013/ND-CP and guides as follows:
a) Fund for development investment shall be used to
add charter capital of enterprise. If enterprises have equity capital more than
charter capital approved by competent authorities, the Ministry of Finance
shall have plan to report to the Prime Minister for moving fund for development
investment of enterprises to fund of support for enterprise arrangement and
development as prescribed at Clause 4, Article 38 of Decree No. 71/2013/ND-CP.
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- Within 05 days after issuing decision on moving
of the Prime Minister, enterprises shall remit in fund of support for
enterprise arrangement and development and make accounting to reduce fund for
development investment respectively with the amounts remitted in fund of
support for enterprise arrangement and development. If an enterprise delays
remittance or fails to remit, apart from assessment on extent of failing to
finish tasks of managers of such enterprise, such enterprise must pay interest
of fine due to delay, and enterprise will be applied coercive measures under
regulation on management and use of fund of support for enterprise arrangement
and development promulgated together with Decision No. 21/2012/QD-TTg dated
10/5/2012 of the Prime Minister.
b) For use of fund of commendation, fund of
welfare, and fund of reward for managers of enterprises, enterprises must
elaborate regulations on management and use of funds as prescribed by law,
ensure democracy, transparency with participation of the Executive Board of
Trade Unions of enterprises and publicize regulations in enterprises before
implementation.
- The fund of commendation of an enterprise is used
to reward according to content and for objects specified at clause 3 Article 39
of Decree No. 71/2013/ND-CP. In which:
+ Objects of fund of commendation are all employees
of enterprise including General Director or Director, Deputy General Director
or Deputy Director, and chief accountant who work under labor contracts.
+ Fund of commendation of an enterprise is not used
to reward for managers of enterprises.
- The fund of welfare is used to pay for contents
involving welfare and objects specified at clause 3 Article 39 of Decree No.
71/2013/ND-CP, including managers of enterprise.
- Fund of reward for managers of enterprise:
+ Members' Council or president of company shall,
base on fund of reward for managers of enterprise which have been set up, to
determine amounts payable to owner and the Ministry of Finance (case where enterprise
has controllers appointed by the Ministry of Finance) to reward for controllers
(full time and part time) under regulations.
+ The amounts used to make fund of reward for
managers of enterprise (after deducting amounts used to reward controllers under
provision mentioned above), shall be used to reward for other managers of
enterprise.
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2. Handling of surplus of fund for financial
provision and profit divided according to equity capital:
When making financial statements in 2013, all
surplus of fund for financial provision on 31/12/2013 and surplus of profit
divided according to equity capital on 31/12/2012 (if any), enterprises may
carry forward in fund for development investment of enterprise to use for
adding the lacked charter capital already been approved by competent
authorities under regulations.
SECTION 4. FINANCIAL PLAN, THE
REGIME OF ACCOUNTING, STATISTICS, AUDIT AND REPORT
Article 20. The financial plan
Enterprise shall elaborate the long-term and annual
financial plans in accordance with Article 40 of Decree No. 71/2013/ND-CP.
Criteria and forms to make annual financial plan shall comply with guide of the
Ministry of Finance.
1. For enterprises which are established under
decisions of the Prime Minister and the Ministries managing sectors:
a) Base on the production and business plan already
been approved by Members' Council or president of company, enterprises shall
assess situation of production and business of report year and make financial
plan of next year and send it to the Ministry managing sector and the Ministry
of Finance before 31/7 every year.
b) The Ministry managing sector shall assume the
prime responsibility for, and coordinate with the Ministry of Finance in
reviewing financial plan made by enterprise and give out formal opinion in
writing for enterprise to complete its financial plan. The completed financial
plan under decision of Members' Council or president of company shall be basis
for the Ministry managing sector and the Ministry of Finance to supervise,
assess production and business activities of enterprise.
2. For enterprises established under decisions of
the provincial People's Committees:
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b) The provincial Services of Finance shall review
financial plan made by enterprise and report to the provincial People’s
Committee to give out formal opinion in writing for enterprise to complete its
financial plan. The completed financial plan under decision of Members' Council
or president of company shall be basis for Service of Finance to assist the
provincial People’s Committee in supervising, assessing production and business
activities of enterprise.
Article 21. The regime of
accounting, statistics and audit
Enterprises must perform the regime of accounting
and statistics as prescribed by law, sufficiently record the initial vouchers,
update accounting books, reflect fully, timely, honestly, exactly, objectively
the financial activities; perform the audit of annual financial statements as
prescribed by law.
Article 22. Financial
statements and other reports
Enterprises make financial statements and other
reports in accordance with Article 41 of Decree No. 71/2013/ND-CP. In which:
1. End of financial year, enterprises must make and
send on time financial statements, reports on supervision, reports on
statistics to agencies under current regulations. To perform financial
disclosure under regulations.
2. The annual financial statements of enterprises
shall be made according to forms specified at decision No, 15/2006/QD-BTC dated
20/3/20006 of Minister of Finance, the amending and supplementing and replacing
documents, if any, and adding form No. 02b-DN “Report on implementation of
obligations with state budget year ……” according to Annex No. 01 promulgated
together with this Circular.
3. In addition to making and sending of annual
financial statements, when finish reports on supervision and assessment,
classification of enterprises promulgated together with Circular No.
158/2013/TT-BTC dated November 13, 2013 of the Ministry of Finance, enterprises
must send owner and the Ministry of Finance (for central enterprise), Service
of Finance (for local enterprises).
4. Apart from periodical financial statements under
regulations stated above, enterprises shall also make and send irregular report
at the request of owners and state management agencies. For enterprises having
domestic and foreign loans which are guaranteed by Government, they shall send
reports under current law on management of debts guaranteed by Government.
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ORGANIZATION OF IMPLEMENTATION
Article 23. Effect
1. This Circular takes effect on February 15, 2014
and applied to financial year from 2013.
2. This Circular replaces Circular No.
117/2010/TT-BTC dated 5/8/2010 of the Ministry of Finance, guiding the
financial regime of State-owned one-member limited liability companies and
Circular No. 138/2010/TT-BTC dated 17/9/2010 of the Ministry of Finance guiding
the regime on profit distribution for State-owned one-member limited liability
companies. The guides on capital investment, management of state capital
invested in enterprises and financial management for enterprises which State
holds 100% of charter capital promulgated by Ministries, sectors, agencies and
units in contrary to Decree No. 71/2013/ND-CP and this Circular also are annulled.
3. In the course of implementation, any arising
problems should be reported to the Ministry of Finance for study and
settlement.
FOR THE
MINISTER OF FINANCE
DEPUTY MINISTER
Tran Van Hieu
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