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THE MINISTRY
OF FINANCE
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.
138/2010/TT-BTC
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Hanoi,
September 17, 2010
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CIRCULAR
GUIDING THE
REGIME FOR PROFIT DISTRIBUTION APPLICABLE TO STATE-OWNED ONE-MEMBER LIMITED
LIABILITY COMPANIES
Pursuant to the Law on Enterprise No.
60/2005/QH11 dated November 29, 2005;
Pursuant to the Government's Decree No.
118/2008/NĐ-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.
25/2010/NĐ-CP dated March 19, 2010 on converting state-owned companies into
single member limited companies, and the management of state-owned single member
limited companies;
Implementing the direction of the Prime
Minister in the Official Dispatch No. 181/VPCP-KTTH dated January 11, 2010 of
the Government’s Office on the profit distribution of state-owned single member
limited companies; the Ministry of Finance guides the regime for profit
distribution applicable to state-owned single member limited companies as
follows:
Article 1. This Circular prescribes the
profit distribution applicable to state-owned single member limited companies,
comprising single member limited companies affiliated to Ministries and
People’s Committees of central-affiliated cities and provinces (hereinafter
referred to as provincial People’s Committees), parent companies of
corporations and general companies (hereinafter referred to as companies), of
which the conversion and charters are approved by the Prime Minister, the
Ministers, the Presidents of the provincial People’s Committees.
State Capital Investment Corporation, the Stock
Exchange, the Stock Depository Center, credit institutions, and lottery
companies are separately regulated.
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1. Distribute the profit to the contributors
under contracts (if any);
2. Offset the loss of the previous years that
are no longer able to be deducted from pre-tax profit;
3. Extract 10% to the financial reserve funds;
stop extracting when the fund balance reaches 25% charter capital;
4. Establish special funds from the post-tax
profit in a ratio prescribed by the State, applicable to special companies of
which the fund establishment is compulsory;
5. The residual profit after deducting the
amounts prescribed in Clause 1, 2, 3 and 4 this Article shall be distributed in
a ratio of the average investors’ capital to the capital raised by the company
in that year, in particular:
- The average investors’ capital and the raised
capital in a year is the total capital balance of each quarter divided by 4
quarters.
- The balance of investors’ capital at the end
of each quarter comprises: the paid-in capital – account 411, Investment and
development funds – account 414, and fundamental construction capital – account
441, prescribed in the Decision No. 15/2006/QĐ-BTC dated March 20, 2006 of the
Minister of Finance.
The raised capital is the money raised through
issuing bonds, taking loans from banks, credit institutions, and other
financial institutions, from external organizations and individuals; taking
loans from employees, and other forms of capital mobilization as prescribed by
law, except for the loans guaranteed by the Government, the Ministry of
Finance, and the preferential loans.
Article 3. The profit distributed
according to investors’ capital is used as follows:
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2. If the investors’ capital is larger than or
equal to the approved charter capital, the owner must cooperate with the
Ministry of Finance in making and sending a plan to the Prime Minister for
transferring the proportion of profit distributed according to the investors’
capital to the Fund of Central enterprise management.
Article 4. Profit is distributed
according to the raised capital as follows:
1. Extract at least 30% to the investment and
development fund of the company.
2. 2. Extract and pay reward to the management
board of the company, in particular:
2.1. Based on the efficiency of the Member
assembly, the President, and the Board of directors, the reward fund for
the management board is established as follows:
Extract up to 5% of the profit distributed
according to the raised capital to establish the reward fund for the management
board if the duties are successfully performed. The extraction must not exceed
500 million VND (if the company has a the Member assembly), or 200 million VND
(if the company does not have a Member assembly);
Extract up to 2.5% of the profit distributed
according to the raised capital to establish the reward fund for the management
board if the duties are adequately performed. The extraction must not exceed
250 million VND (if the company has a the Member assembly), or 100 million VND
(if the company does not have a Member assembly);
If the duties are poorly performed, no reward
fund shall be established, even when the company makes profit.
2.2. For special companies that have more
investors’ capital than the raised capital, or does not have raised capital,
and so the profit distributed according to the raised capital is not sufficient
for paying rewards to the management board, the reward fund for the management
board may be established as prescribed in Article 8 of this Circular if the
management board successfully or adequately performs their duties; the
extraction amount is calculated as guided in Clause 2.1 this Article.
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3. The residual profit shall be distributed to
the reward fund and benefit fund depending on the rating of the company, in
particular:
- A company rated A may extract up to 3 months
of salary to build up the reward fund and benefit fund;
- A company rated B may extract up to 1.5 months
of salary to build up the reward fund and benefit fund;
- A company rated c may extract up to 1 month of
salary to build up the reward fund and benefit fund;
- A company without rating must not establish
any reward fund and benefit fund.
The extraction amount is decided by the Member
assembly or the President after consulting the Union Executive board of the
company.
4. The residual profit after building up the
reward fund and benefit fund as prescribed in Clause 3 this Article shall be
used to supplement the investment and development fund of the company.
Article 5. In 2 consecutive years as from
starting to make and distribute profit as guided above, if the reward fund and
benefit fund a new company (not being converted from a state-owned company)
does not reach 2 months of salary if the company is rated A, or 1.5 months of
salary if the company is rated B, or 1 month of salary if the company is rated
C, it must reduce the investment and development fund to ensure the sufficiency
of the reward fund and benefit fund prescribed. The maximum reduction is the
entire investment and development fund extracted from post-tax profit made in
the fiscal year. In the succeeding years, the company shall distribute its
post-tax profit as prescribed in Article 4 of this Circular.
Article 6. For companies established for
regularly and sustainably providing public services and products ordered by the
State, if the reward fund and benefit fund do not reach the amount prescribed
in this Circular when distributing profit through this mechanism, such
companies may reduce the investment and development fund, reduce the profit
distributed according to the investors’ capital to supplement the reward fund
for the management board and the benefit fund as prescribed. If the
sufficiency is still not reached after making the complete deduction, the State
shall consider and support:
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- 50% of the missing amount if the company is
rated A, and the proportion of revenue from providing public services and
products reaches less than 50% of the total revenue.
The post-tax profit for establishing the reward
fund for the management board and the benefit funds comprises: profit from
providing public services and products ordered by the State, or from bidding,
and profit from other business.
Article 7. Extracting and establishing
reward funds and benefit funds of special companies:
While the special companies of which the
investors’ capital is larger than the raised capital, or without raised
capital; the companies of which the equitization is approved by competent
agencies that have not officially converted the ownership (have not been issued
with the Certificate of first business registration in the new form); the
companies in bordering areas, on islands, or strategic areas, that have
been performing some economic and social tasks assigned by the State While, or
creating employments for the ethnics… is following the regime for distributing
post-tax profit as prescribed in Clause 2 and Clause 4 of this Circular, if the
reward fund and benefit funds are in adequate because the post-tax profit
distributed according to the raised capital is insufficient or unavailable, the
reward fund and benefit funds shall be established as follows:
- Extract up to 3 months of salary to build up
the funds if the company is rated A and the amount payable to the State budget
arising in the year is higher than or equal to that of the previous year;
- Extract up to 1.5 months of salary to build up
the funds if the company is rated A and the amount payable to the State budget
arising in the year is lower than that of the previous year; or the company is
rated B and the amount payable to the State budget arising in the year is
higher than or equal to that of the previous year
- Other companies may extract up to 1 month of
salary to build up funds (with rating)
- A company without rating must not establish
any reward fund and benefit fund.
Article 8. The order for building up the
reward fund for the management board and benefit funds of a special company:
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- If the investment and development fund is used
up and the reward fund for the management board and benefit funds are still
insufficient, the company may use up to 50% of the profit distributed according
to the investors’ capital to supplement the reward fund for the management
board and benefit funds.
Article 9. The company rating, the
performance of the Member assembly, the President, and the Board of directors
are determined as prescribed by law.
Article 10. Effect
1. This Circular takes effect on November 05,
2010, and is applicable to the fiscal year 2010. The previous provisions on the
profit distribution of state-owned single member limited companies that
contradict this Circular are all annulled.
2. Parent companies of corporations, general
companies, parent companies in the parent company-subsidiary company
relationship must apply this Circular to the profit distribution of the
subsidiary companies being single member limited companies 100%-capitalized by
parent companies.
3. The companies are recommended to send
feedbacks on the difficulties arising during the course of implementation to
the Ministry of Finance for consideration and settlement./.
FOR THE
MINISTER
DEPUTY MINISTER
Tran Van Hieu
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