|
MINISTRY OF
FINANCE
--------
|
SOCIALIST REPUBLIC
OF VIETNAM
Independence - Freedom - Happiness
---------------
|
|
No. 46/2021/TT-BTC
|
Hanoi, June 23,
2021
|
CIRCULAR
PROVIDING
INSTRUCTIONS ABOUT SEVERAL REGULATIONS ON FINANCIAL DISPOSITION AND BUSINESS VALUATION
DURING THE PROCESS OF TRANSFORMATION OF STATE ENTERPRISES AND SINGLE-MEMBER
LIMITED LIABILITY COMPANIES WITH 100% OF THEIR CHARTER CAPITAL WHOLLY HELD BY
STATE ENTERPRISES INTO JOINT-STOCK COMPANIES
Pursuant to the Law on Enterprises dated June 17,
2020;
Pursuant to the Law on Management and Use of
State Capital Invested in Production and Business Activities of Enterprises
dated November 26, 2014;
Pursuant to the Government's Decree No.
87/2017/ND-CP dated July 26, 2017, defining the functions, tasks, powers and
organizational structure of the Ministry of Finance;
Pursuant to the Government’s Decree No.
126/2017/ND-CP dated November 16, 2017 on transformation of state enterprises
and single-member limited liability companies with 100% of their charter
capital wholly held by state enterprises into joint-stock companies;
Pursuant to the Government’s Decree
No.140/2020/ND-CP dated November 30, 2020, amending and supplementing several
articles of the Government’s Decree No. 126/2017/ND-CP dated November 16, 2017,
regarding transformation of state enterprises and single-member limited
liability companies of which 100% of charter capital is held by state
enterprises into joint-stock companies; the Government’s Decree No.
91/2015/ND-CP dated October 13, 2015, regarding investment of state capital in
enterprises and management, use of capital and assets at enterprises and the
Government's Decree No. 32/2018/ND-CP dated March 8, 2018, prescribing
amendments and supplements to several Articles of the Decree No. 91/2015/ND-CP;
Upon the request of the Director of the
Corporate Finance Department,
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
Chapter I
GENERAL PROVISIONS
Article 1. Scope and subjects
of application
1. Scope of application:
This Circular
provides instructions about several regulations on financial disposition and
business valuation during the process of transformation of state enterprises
and single-member limited liability companies with 100% of their charter
capital wholly held by state enterprises into joint-stock companies under the
provisions of the Government’s Decree No. 126/2017/ND-CP dated November 16,
2017, regarding the transformation of state enterprises and single-member
limited liability companies of which 100% of charter capital is held by state
enterprises into joint-stock companies (hereinafter referred to as
126/2017/ND-CP) and the Government’s Decree No. 140/2020/ND-CP dated November
30, 2020, prescribing amendments and supplements to several Articles of the
Government’s Decree No. 126/2017/ND-CP; the Government’s Decree No.
91/2015/ND-CP dated October 13, 2015, regarding investment of state capital in
enterprises and management, use of capital and assets at enterprises and the
Government's Decree No. 32/2018/ND-CP dated March 8, 2018, prescribing
amendments and supplements to several Articles of the Decree No. 91/2015/ND-CP
(hereinafter referred to as Decree No. 140/2020/ND-CP);
2. Subjects of application:
a) Enterprises specified in Clause
3, Article 2, Decree No. 126/2017/ND-CP; Clause 1, Article 1, Decree No.
140/2020/ND-CP (hereinafter referred to as equitized enterprises), including:
- Enterprises whose charter
capital is wholly held by the State (hereinafter refer to as tier-I
enterprises), including single-member limited liability companies with their
wholly state-owned charter capital which are parent companies of economic
groups, parent companies of state corporations, parent companies in parent
company-subsidiary groups; sovereign single-member limited liability companies
with 100% of their charter capital wholly held by the State.
- Single-member
limited liability companies with 100% of their charter capital wholly held by
tier-I enterprises (hereinafter referred to as tier-II enterprises)
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
Article 2.
Several principles of financial disposition during the equitization process
1. Based on the list of
enterprises to be equitized as subject to approval by the competent authority,
each equitized enterprise must proactively handle financial problems according
to current regulations applied to enterprises whose charter capital is wholly
own by the State. Upon receiving the decision on equitization from the
competent authority, the enterprise shall have to take charge of inventorying
and classifying assets, capital and funds the enterprise is managing, using,
examining and verifying debts according to the provisions of Decree No.
126/2017/ND-CP, Decree No. 140/2020/ND-CP and instructions in this Circular as
a basis for determining the actual value of the enterprise for equitization
purposes.
With respect to a land lot that
the enterprise is not allowed to keep and continue to use according to the plan
to rearrange and dispose of real property, but in fact the enterprise is still
monitoring and using, and which has not yet obtained a withdrawal plan from the
competent authority, the equitized enterprise must give their report and
explanation as a basis for transfer of that land lot to the competent authority
when being officially transformed into a joint stock company.
2. An equitized enterprise is not
allowed to adjust data contained in their accounting books and financial
statements at the date of business valuation according to the business
valuation results decided and announced by an owner's representative agency.
3. After having been financially
treated and re-valued according to laws, if the actual value of the enterprise
is lower than payables, further treatment actions shall be taken according to
the provisions of Point b, Clause 2, Article 1, Decree No. 140/2020/ND-CP.
4. At the time the equitized
enterprise is granted the certificate of initial registration of joint-stock
enterprise, they shall prepare financial statements and handle financial issues
as prescribed in Article 21 in the Decree No. 126/2017/ND-CP and Clause 5,
Article 3 of Decree No. 140/2020/ND-CP as well as regulations of this Circular.
In case where the enterprise has
received the competent authority’s decision on reduction in the state
capital at the time the equitized enterprise is granted an enterprise
registration certificate in proportion to the loss incurred as prescribed in
Clause 7 of Article 21 in Decree No. 126/2017/ND-CP, the joint-stock company
shall not be allowed to carry forward this loss during the process of
determination of taxable income of the following years in accordance with laws
on corporate income tax and other relevant instructional documents.
5. The process of financial
disposition and business valuation of an equitized enterprise must comply with
market principles and ensure public disclosure, transparency, consistency and
strict compliance with the State’s regulations. If any organization and
individual involved in the process of financial disposition and business
valuation fails to strictly comply with the prescribed regime to the extent of
causing any damage or loss of state property, they shall bear administrative
liability, pay material compensation or are criminally prosecuted in accordance
with law.
6. In case where business value
and state capital of an equitized enterprise are reduced due to the lack or
omission of assets and liabilities occurring through the stocktaking or
inventorying of assets, reconciliation and verification of debts, financial
treatment actions prescribed in Clause 4, Article 10 of Decree No.
126/2017/ND-CP and Clause 2, Article 7 of this Circular shall be applied.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
7. The owner's representative
agency shall be responsible for settling and handling financial issues arising
during the equitization process according to the provisions of Decree No.
126/2017/ND-CP, Decree No. 140/2020/ND- CP and regulations laid down in this
Circular, and those arising in other situations (if any) occurring in relation
to the equitization process after the equitized enterprise is officially
transformed into a joint stock company.
8. Business valuation consulting
organizations must perform business valuation according to the asset-based
method specified in Section 2, Chapter III of Decree No. 126/2017/ND-CP; Clause
13, Clause 14, Clause 15 , Clause 16, Clause 17, Article 1; and Clause 6,
Clause 7, Article 3 in the Decree No. 140/2020/ND-CP and specific instructions
given in this Circular; may also choose at least one other business valuation
method in accordance with the law on pricing and appraisal to seek a decision
considered by the owner's representative agency.
9. The equitized enterprise must provide investors
with interpretations and information about the equitization plan and the
prospectus of information on assets currently available at the equitized
enterprise (e.g. infrastructure assets; other assets under the enterprise’s custody
or in use; assets that are investment projects in progress) that are acquired
by using public investment capital and identified as public property.
In case where these assets are in the custody or in
use by the enterprise authorized by the State and are deemed as the state
capital share at the enterprise in accordance with law, but the final
settlement of financial obligations arising in investment projects for the
formation of these assets has not yet been approved at the time of business
valuation, when approving the equitization plan, the owner's representative
agency must integrate actions to be taken to dispose of them into the
equitization plan during the process of generation of the final accounts
approved by the competent authority (applicable in case where the value of
these assets increases or decreases in comparison to the value thereof
determined at the time they are assigned by the state to the enterprise),
ensuring relevance to the form of corporate equitization according to the
approved plan and, concurrently, publicizing information about these financial
treatment actions in the course of selling their initially offered shares at
auction to investors in order for investors and transformed enterprises to be
informed of and implement the approved equitization plan.
In case where these assets are being disposed of
according to the instructional documents of competent authorities before the
effective date of this Circular, these documents shall continue to prevail.
Chapter II
DISPOSING OF FINANCIAL
ASSETS IN THE PROCESS OF EQUITIZING AND VALUING ENTERPRISES BY USING THE
ASSET-BASED METHOD
Section 1.
ASSET STOCKTAKING, INVENTORYING AND DEBT RECONCILIATION
Article 3.
Asset stocktaking, inventorying and classification
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
2. At the time of business
valuation, the enterprise must make a stocktaking chart describing the correct
quantity, current condition, quality and value of the existing assets that the
enterprise is keeping and using; must count cash, reconcile bank deposit
balance; must determine asset and cash excess or deficit compared to data on
asset or cash recorded in the accounting books, clearly analyze the causes of
such excess, deficit and the responsibilities of involved persons, and identify
compensation levels in accordance with law.
3. Assets determined after the
stocktaking or inventorying process shall be classified into the following
groups:
a) Operating assets.
b) Unused assets, stagnant assets,
assets in slow circulation and assets awaiting liquidation.
c) Assets formed from the reward
and welfare fund (if any).
d) Rented, borrowed assets,
supplies and goods held in the authorized custody, kept under processing
contracts, held as a fiduciary, held on consignment, assets received as capital
contribution to a joint venture, affiliation and other assets not belonging to
the enterprise
dd) Land-attached assets that have
not been disposed of according to the plan for rearrangement and disposition of
premises and land under the approval decision of a competent authority.
e) Assets of profitable
non-business (land and premises of profitable non-business units according to
the law on reorganization and disposition of real property under state
ownership), and assets serving non-business activities.
g) Assets currently available at the equitized
enterprise (e.g. infrastructure assets; other assets in the custody or in use
by the enterprise; assets that are investment projects in progress) that are
acquired by using public investment capital and identified as public property.
This type of assets is clearly described as public property held in trust for
use by the enterprise and deemed as the share of state capital at the
enterprise; public property held in trust for use by the enterprise and not deemed
as the share of state capital at the enterprise; public property that is
managed and disposed of in trust by other transferee entities according to the
provisions of law on management and use of public property after the enterprise
does not continue their custody or use. The plan for disposition of these
assets shall be subject to the decision of the competent state authority before
commencement of business valuation.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
i) Financial contributions made by
the value of land tenure, money/other assets (giving a clear interpretation of
the plan for disposition of assets used as capital contribution to a joint
venture upon termination of the joint venture with a foreign investors ).
k) Investments in joint-stock
companies at the time of business valuation that the equitized enterprise owns
(including the volume of shares received, currently in their custody or under
their supervision in the interpretation of their financial statement) and the
volume of dividend-paying shares that will be received after the time of
business valuation according to the Resolution of the General Meeting of
Shareholders or the notice of the right to receive dividends till the time of
business valuation.
l) Other assets (if any).
Article 4.
Reconciliation, verification and classification of debts
The equitized enterprise shall
reconcile, confirm and classify debts and liabilities according to the
provisions of Article 15, Article 16 of Decree No. 126/2017/ND-CP; Clause 9,
Clause 10, Article 1 of Decree No. 140/2020/ND-CP, and make a detailed list of
debts of each debtor and creditor at the time of business valuation, and follow
specific instructions hereunder:
1. Receivables:
a) Reconcile, verify the analysis
of and determine the responsibilities of related parties for the receivables of
specific debtors, including:
- Reconcile and verify all
receivables that are due, undue and overdue; for commercial banks, they must
reconcile and verify off-balance-sheet receivables.
- Make a clear analysis indicating
bad debts are receivables that are past due at least 06 months (based on the
initial principal repayment term stated in an economic contract, indebtedness
covenant or other debt commitments without taking into account the grace period
for debt repayment between the parties), and indicating the fact that, though
the enterprise has sent a reconciliation report to verify debt or push the debt
payment but has not yet recovered the debt, and the receivable is not due yet,
the enterprise collects evidence that the economic organization as a debtor has
gone bankrupt, has initiated bankruptcy proceedings, has absconded from their
business location; the debtor is being prosecuted, detained, tried by law
enforcement agencies, or is executing court judgement or is suffering from a
fatal illness (certified by a hospital), or is dead, or the debt must be repaid
upon the enterprise's request for execution of the court judgment but cannot be
repaid because the debtor has fled from his or her residence; the debt is
subject to the enterprise’s claim filed in the court but the case involving
such debt is dismissed. Clearly identify responsibilities of organizations and
individuals related to the debt which the party having obligation to repay
cannot be identified.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
b) Review contracts to determine
prepayments to suppliers of goods and services, but already record all
prepayments as business expenses, such as house rents, land rents, purchase
amounts, amounts paid for long-term insurance policies, salary, wages, etc.
c) Till the time of valuation of
the equitized enterprise, if there are still some receivables proved by full
evidencing documents and records, but have not yet been reconciled and
verified, the equitized enterprise shall be responsible for taking financial
disposition actions prescribed at point b, clause 9, Article 1 of Decree No.
140/2020/ND-CP.
2. Liabilities to organizations
and individuals (including due, undue and overdue debts) at the time of
business valuation:
a) Based on contracts,
indebtedness notices, debt reconciliation statements, make a list of loans
extended by specific creditors; determine tax debts and other payables to the
state budget; make the detailed analysis of loans under contracts (e.g. domestic
loans, foreign loans), guaranteed loans, loans due to bond issuance; payables
that are due, due and overdue; outstanding principal, interest, and payables
that do not need to be repaid.
b) Payables that do not need to be
repaid are debts that creditors fall into the following cases when the
equitized enterprise carries out the reconciliation and verification of debts:
- Creditors are businesses that
have been dissolved or gone bankrupt but any agency or individual that inherits
the rights to collect their debts is not identified according to the
dissolution or bankruptcy plan decided by a competent authority.
- Creditors are individuals that
die without intestate by operation of laws on inheritance.
- The enterprise owes debts to
other creditors that are overdue but these creditors do not come to confirm
these debts. In this case, the equitized enterprise must send a written notice
to these creditors both directly and on mass media at least 10 working days
before the time of business valuation.
Article 5.
Reconciliation and verification of financial investments; distributed amounts;
received capital contributions
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
2. Determine the quantity and
value of securities (e.g. stocks, bonds, etc.) purchased; the number of shares
distributed to the equitized enterprise, including the number of shares owned
by the equitized enterprise (the number of shares received, in their custody
and under their supervision as stated in the interpretation of the financial
statements) and the number of dividend-paying shares that the equitized
enterprise will receive after the time of business valuation according to the
Resolution of the General Meeting of Shareholders till the time of business
valuation.
3. For capital contributions to
joint ventures and affiliations, an equitized enterprise shall, based on joint
venture or affiliation contracts, make a detailed list of capital contributions
that specific partners have made and notify capital contributors in order to
work with the joint-stock company to inherit preexisting contracts or terminate
these contracts.
Article 6.
Inventorying, reconciliation, verification and classification of assets and
liabilities during the process of state-owned commercial banks
The inventorying, evaluation and
classification of assets that are capital in cash, financial leased assets and
debts of state-owned commercial banks shall conform to the provisions of
Articles 3, 4 and 5 of this Circular and the following specific instructions:
1. Inventorying and reconciling
customers' deposits and security instruments (e.g. certificates of deposit,
bills, promissory notes, bonds) as follows:
a) Checking entries in accounting
books in detail.
b) Carrying out reconciliation to
verify deposit balances, security instruments of customers that are legal
entities.
c) Savings, personal deposits,
security instruments must be reconciled with those recorded in accounting books
or records kept at banks and compared with those of customers. If such
reconciliation does not involve all customers, the provisions of Clause 10,
Article 1 in Decree No. 140/2020/ND-CP shall apply.
2. Reconciliation of assets that
are outstanding credit balances (even including off-balance sheet ones) shall
be subject to the following regulations:
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
b) Comparing data determined
according to credit profiles with data included in the commercial bank's
accounting books; comparing credit balances with specific customers to get
customers' confirmation of their credit balances.
For individual customers, if it is
not possible to check with customers, the commercial bank must compare them
with data included in accounting books and records kept at the bank.
c) In case where there is a
discrepancy between data between credit profiles and accounting books and
customers' confirmation, the commercial bank must clarify the reasons for such
discrepancy and identify the responsibilities of involved organizations and
individuals to impose sanctions according to current regulations of the State.
3. Classifying stagnant
outstanding receivables against which risk provisions may be used in accordance
with regulations of the State Bank of Vietnam.
4. For assets acquired under
finance leases, it is a must to reconcile them with those of specific
customers, and clearly identify outstanding debts of specific assets acquired
under finance leases.
Section 2.
FINANCIAL DISPOSITION DURING THE EQUITIZATION PROCESS
Article 7.
Financial disposition occurring at the time of business valuation (before
business valuation consulting)
1. Based on the results of
inventorying and audit of their financial statement and settlement report on
amounts payable to the state budget, the equitized enterprise shall have to
cooperate with relevant authorities in proactively addressing financial issues
before valuation of the equitized enterprise as prescribed in Articles 14, 15,
16, 17, 18, 19 and 20 of Decree No. 126/2017/ND-CP, Clause 8 , Clauses 9 and
10, Article 1 of Decree No. 140/2020/ND-CP and specific instructions given in
Clauses 2, 3, 4, 5, 6 and 7 of this Article.
2. Based on the results of
inventorying and classification of assets, for any asset excess or deficit, the
enterprise must analyze and clarify the causes and take the following actions:
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
b) In case of asset excess, they
must identify the responsibilities of violating organizations and individuals
to take any disposition action according to current regulations; the value of
the excess assets that are not returned shall be recorded in the business
results of the enterprise during the process of business valuation.
3. Receivables (except for credit
outstanding balances of state-owned commercial banks conducting equitization)
shall be financially disposed of in accordance with the provisions of Article
15 of Decree No. 1 Decree No. 140/2020/ND-CP and Circular No. 48/2019/TT-BTC
dated August 8, 2019 of the Ministry of Finance, providing instructions about
the setting aside and treatment of provisions for devaluation of inventories,
loss of investments, bad debts and warranties for products, goods, services,
construction works at the enterprise and other documents stating amendment,
supplementation or replacement (if any).
4. The enterprise’s payables shall
be subject to financial disposition under Article 16 of the Decree No.
126/2017/ND-CP; Clause 10, Article 1 of Decree No. 140/2020/ND-CP.
5. For accrued interest arising from the principal
debt that has been included in the enterprise value that the enterprise
inherits, continues to keep track of as off-balance sheet accounts after being
transformed into a joint stock company, if such accrued interest is collected,
after deducting expenses related to collection and payment (if any), the joint
stock company shall transfer the residual amount of accrued interest to the
state budget.
6. Domestic consulting
organizations providing business valuation consulting services must fully meet
the criteria specified in Clause 5, Article 12 of Decree No. 126/2017/ND-CP and
point c, Clause 6, Article 1 Decree No. 140/2020/ND-CP. In case where the
equitized enterprise already hires a business valuation consultant and is
carrying out business valuation according to the provisions of Decree No.
126/2017/ND-CP, they shall not need to re-select a business valuation
consultant.
7. For exchange rate spread
occurring due to revaluation of monetary items of foreign currency origin at
the time of business valuation, the equitized enterprise shall conduct the
revaluation according to regulations and carry forward such spread to their
business results.
Article 8.
Financial disposition at the time of official transformation into a joint-stock
company
1. Each equitized
enterprise shall continue to comply with regulations on financial management
applied to enterprises whose 100% of charter capital is held by the State for
the period from the time of business valuation to the time when they are
officially transformed into a joint stock company.
If any enterprise
has already been valued and obtained the competent authority’s approval of the
equitization plan according to the Decree No. 126/2017/ND-CP, but is not yet
officially converted into a joint stock company, they can record exchange rate
differences due to revaluation at the time of business valuation (if any) in
the business results within the operating period before being officially
transferred to a joint stock company in order to complete financial obligations
at the time of being officially converted into a joint stock company.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
2. Excess or deficient asset value
compared with the value of the equitized enterprise decided and announced by
the owner's representative agency shall be handled according to the provisions
of Clause 4, Article 10 of Decree No. 126/2017/ND- CP.
3. The equitized enterprise shall
treat receivables and payables determined at the time they are granted the
certificate of initial registration of the joint-stock company in accordance
with Article 15 and 16 in the Decree No. 126/2017/ND-CP; Clause 9 and 10,
Article 1 in the Decree No. 140/2020/ND-CP.
4. The equitized enterprise shall
manage and use reward and welfare fund arising from the time of business
valuation to the time when the equitized enterprise is granted the certificate
of initial registration of the joint-stock company in accordance with
regulations. The newly-established joint stock company can inherit and continue
to use the residual balance (if any).
5. For any exchange rate difference arising due to
revaluation of items of foreign currency origin at the time of being official
transformed into a joint stock company, the equitized enterprise shall revalue
it by comparing it with the exchange rate quoted at the time of cut-off of data
for making the latest annual or semi-annual financial statement, and shall
record the carry-forward in their business results and transfer the residual amount
of the exchange rate difference at this time to the joint stock company (after
transformation from a state enterprise) for their oversight and disposition
according to the provisions of point b, clause 2, Article 21 in the Decree No.
126/2017/ND-CP, including treatment of the interest on exchange rate difference
under supervision in undistributed after-tax profits.
6. In case where stock dividends arises
after the time of business valuation and by or before the time of official
transformation into a joint stock company (but these dividends have not yet
been entered in the business value and has not yet been taken into account in
the plan for determination of the starting price), based on the dividend
distribution Resolution and the notice of the right to claim dividends, the
equitized enterprise shall value the shares received in order to determine the
value of additional state capital at the time of official transformation into a
joint stock company by multiplying the price determined at the time of official
transformation into a joint stock company by (x) the number of shares received.
In case where, at the time of official
transformation to a joint stock company, the aforesaid dividend distribution
Resolution is not available, the equitized enterprise shall direct the
representative for their ownership interest to request the capital contribution
transferee to issue a profit distribution Resolution (in the case of having
controlling shares at the transferee) or request the joint stock company to
give clear explanation that, when the recipient has a dividend distribution
resolution later in the future, the amount of these stock dividends will be
wholly in the State ownership (in case they do not hold controlling shares at
the transferee; or their representative has made a request, but the transferee
has not yet had a dividend distribution Resolution). When the joint-stock
company assigns these shares, they are obliged to pay 100% of the value
obtained after deducting taxes (if any) to the state budget (if any) and
expenses incurred from such assignment of shares in accordance with law.
7. At the time of officially being
transformed into a joint stock company, the equitized enterprise shall use risk
provisions to deal with the loss of intercorporate financial investments
qualified for such provisions (if any) and keep a reverse record of the
residual provisions in the equitized enterprise’s business results. The joint
stock company may make new risk provisions after being officially put into
operation.
8. After being granted the
certificate of initial registration of the joint-stock company, the joint-stock
company shall be responsible for fulfilling the financial obligations and
completing regulatory procedures to be allocated land, rent land or granted a
certificate of the right to use land, own the house and other land-attached
property in accordance with the provisions of the current land law and
legislation on tax administration.
Time limits for a tax authority’s
completion of finalization of taxes and other payables to the state budget of
equitized enterprises after being granted the certificate of initial
registration of the joint-stock company shall be subject to the Law on Tax
Administration.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
1. Documentation requirements used
as a basis for an enterprise’s preparation of the dossier and transfer to the
joint-stock company comprise audited financial statement at the time of initial
registration of the joint-stock company; final accounts of taxes and amounts
payable to the state budget to be registered with tax authorities, settlement
of the proceeds from equitization; final accounts of equitization costs and
expenses; final accounts of financial support for redundant employees (if any);
the decision on announcement of the actual value of the state capital at the
time the equitized enterprise is officially transformed into a joint stock
company, which is prepared by the owner's representative agency, and the
financial statement that is remade at the time of official transformation into
the joint stock company after obtaining the approval decision from the owner's
representative agency.
2. After the equitized enterprise
completes the remade financial statement as prescribed in Clause 5, Article 21
of Decree No. 126/2017/ND-CP, the Steering Committee and the Assisting Group
shall cooperate in speeding up and monitoring the transfer between the
equitized enterprise and the joint stock company. The transfer must be
proved by the minutes, enclosing all dossiers related to the equitization
process in front of the owner’s representative agency. The transfer minutes
must clarify rights and obligations of the involved parties; post-transfer
actions (if any), specifically including:
a) Dossier of the transfer from an
equitized enterprise into a joint-stock company, including:
- Dossier of business valuation
and decision to announce business value, which shows the value of the share of
state capital at the enterprise stated in accounting books and after
re-evaluation.
- The financial statement that is
remade at the time of official transformation into the joint stock company
after receipt of the approval decision from the owner's representative agency;
- Final accounts of
equitization costs and expenses and amounts payables to the Corporate
Reorganization and Development Support Fund; final accounts of financial
support for redundant employees.
- Decision on approval of value of
the state capital share at the time of transformation into the joint stock
company, which is made by the owner’s representative agency.
- Minutes of handover of assets
and capital made at the time of issuance of the Certificate of initial
registration of the joint stock company (enclosing a detailed chart of debts
handed over to the joint-stock company to inherit obligations to such debts and
other financial problems that need to be further addressed - if any), including
documents on land and premises that the equitized enterprise is monitoring and
using, but cannot be retained according to the approved plan for reorganization
and use of land and premises and not yet recovered by the competent authority
(if any).
- Reports on personnel; land use
plans of the enterprise approved by the owner’s representative agency or of the
enterprise that is managing and using such land.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
b) Participants in the transfer
process:
- The owner’s representative
agency.
- Representative of the economic
group, corporation, parent company (in case of equitization of a member
enterprise of an economic group, corporation, subsidiary), the General
Director/Director, the Chief Accountant and representative of the trade union
of the equitized enterprise – the transferor’s representative.
- Chairperson of the Governing
Board, General Director/Director, Chief Accountant and representative of the
trade union of the joint-stock company – the transferee’s representative.
In case where the legal
representative or the chief accountant is absent for objective reasons (retires
according to the retirement plan, dies or transfers to other job position), the
owner’s representative agency/the equitized enterprise shall be responsible for
appointing/designating a legal representative to carry out the transfer.
- The representative of the State
Capital Investment Corporation. This representative is required for equitized
enterprises subject to the transfer of the right to represent the owner of
state capital to the State Capital Investment Corporation.
c) The transfer minutes must bear
all signatures of participants in the transfer process and must clarify:
- The current state of assets,
capital, land, and labor available at the time of issuance of the Certificate
of initial registration of the joint-stock company.
- Rights and obligations that the
joint stock company continues to inherit.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
d) The owner’s representative
agency shall be responsible for sending the transfer minutes to a tax authority
to keep track of and push the payment of amount to the state budget.
dd) In case where the equitized
enterprise is comprised of a parent company and single-member limited liability
companies whose charter capital is wholly held by the parent company, the
transfer for the purpose of equitization of single-member limited liability
companies whose charter capital is wholly held by a parent company shall occur
in the same manner as the transfer for the purpose of equitization of the
parent company.
e) After transformation into a new
joint-stock company obtaining approval of the official land prices from a
competent authority, the owner's representative agency can direct the
enterprise to remit the entire difference in the estimated value of the land tenure
charged in the enterprise value and the value of land tenure revalued by the
competent authority (if any) into the state budget.
Section 3.
VALUING ENTERPRISES BY USING THE ASSET-BASED METHOD
Article 10.
Determination of the actual value of the enterprise’s assets
The business valuation by the
asset-based method shall conform to the provisions of Section 2, Chapter III of
Decree No. 126/2017/ND-CP, Clause 13, Clause 14, Clause 15, Clause 16, Clause
17 of Article 1, and Clauses 6 and 7 of Article 3 of Decree No. 140/2020/ND-CP
and the following specific instructions:
1. The actual value of each asset
of the enterprise is determined in Vietnamese dong according to the inventory
of specific assets tracked in the enterprise's accounting books.
2. Valuation of physical assets:
a) Only assets that the
joint-stock company continues to use should be revalued.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
Where:
- Market price is:
+ Price of a new asset of the same
kind currently being purchased or sold on the market, including transportation
and installation costs (if any). If it is a particular asset that is not
available on the market, the purchase price of the asset is calculated
according to the purchase price of an equivalent brand-new asset manufactured
by the same country, having the same capacity or similar functions. In case
where there is no equivalent asset, the price of the asset recorded in the
accounting books (including assets acquired through investments and purchases
in foreign currency).
+ Regarding assets that are houses
and architectural objects: The market price is the capital construction unit
price and unit investment cost regulated by the competent authority at the time
nearest to the time of business valuation. In case where there is none of
regulations, each of these assets is calculated according to the book value,
taking into account capital construction price slippage factors.
If houses and architectural
objects have just completely built within three (03) years before the time of
business valuation, their value recorded in the construction cost settlement
report works already approved by the competent authority shall be adopted. In
particular cases where any house or architectural object is put to use without
obtaining the report on settlement of costs of construction thereof, its price
specified in the accounting books may be temporarily accepted for valuation of
such asset.
- The remaining quality of an
asset is expressed as its percent as against the quality of the asset of the
same kind which is newly purchased or constructed in accordance with the
State's regulations on safety conditions for use and operation of assets;
quality assurance of manufactured products; environmental hygiene under the
guidance of the Ministries in charge of the economic and technical sectors. If
there is none of such regulations, the quality of an asset is determined as
follows:
+ The quality of an asset, like
machinery and equipment; means of transport, transmission equipment; controlling
equipment or instrument and other fixed asset, are re-assessed in comparison
with the actual quality provided that such quality is not less than 20% of the
quality of the brand-new asset of the same kind;
+ The quality of a house or
architectural object shall not be less than 20% of the quality of the
newly-constructed asset of the same kind.
c) As for value of fixed assets
that have been fully depreciated to recover capital; value of working tools and
management tools that have all been distributed to business expenses, if the
joint stock company continues to use these assets, they must redetermine the
value thereof to include such value in the business value according to the
rules under which their value is not less than 20% of the value of the
brand-new ones.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
dd) Assets formed according to BOT
contracts, infrastructure facilities of industrial parks are valued under the
provisions of clause 6 and 7 of Article 27 in the Decree No. 126/2017/ND-CP.
e) Value of the assets currently
available at the equitized enterprise (e.g. infrastructure assets; other assets
in the custody or in use by the enterprise; assets that are investment projects
in progress) that are acquired by using public investment capital and
identified as public property that is assigned to the enterprise for their
management, use and operation, and is not deemed as the share of state capital
at the enterprise according to laws on management and use of public property
shall not be included in the business value during the equitization process.
3. Monetary assets, including
cash, deposits and security instruments (e.g. certificates of deposit, bills,
promissory notes, bonds) of an enterprise, are valued as follows:
a) Cash amounts which are
calculated according to cash count records.
b) Amounts of deposits determined
according to balances reconciled and confirmed with banks where the enterprise
has their accounted opened.
c) Security instruments that are
valued according to prices applied to transactions thereof in the market. In
case where none of transactions is performed, they are valued at face values
thereof plus cumulative interest (if any) till the time of business valuation.
4. Receivables to be included in
the enterprise’s value shall be valued according to the actual balance stated
in the accounting books and after reconciliation shall be treated as prescribed
in Article 15 of Decree No. 126/2017/ND-CP and Clause 9 of Article 1 of Decree
No. 140/2020/ND-CP.
5. Costs of in-progress business,
production, capital construction and other costs related to compensation, site
clearance and ground leveling shall be determined according to the actual costs
incurred as recorded in the accounting books.
Costs of in-progress business,
production, capital construction which are assets invested in in-progress
finance leases of credit institutions may be valued by using the audit results
of financial statements in accordance with Clause 3, Article 27 of Decree No.
126/2017/ND-CP and Clause 13, Article 1 of Decree No. 140/2020/ND-CP.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
7. The average ratio of after-tax
profits to state capital during five (05) years before the time of business
valuation for the purpose of valuation of potentials for development of the
equitized enterprise shall be valued according to the provisions of point b,
clause 2, Article 31 of the Decree No. 126/2017/ND-CP.
As regards any equitized
enterprise whose operational period is not fully five (5) years till the time
of business valuation, the average ratio of after-tax profits to state capital
shall be valued according to the provisions of Article 31 in the Decree No.
126/2017/ND-CP and the following regulations:
- It can be based on the actual
operating years, not the years during which accrued losses arise.
- In case where the owner
increases the state capital at a tier-I enterprise or a tier-I enterprise
increases the investment capital in a tier-II enterprise due to the receipt of
an investment project, assets and capital from another entity, the average
state capital upon equitization shall be valued according to the state capital
determined at the effective time of the latest decision on capital increase.
Chapter III
PUBLIC DISCLOSURE AND
IMPLEMENTATION PROVISIONS
Article 11.
Public disclosure
Equitized enterprises must
publicly announce information about their equitization processes as prescribed
in Clause 1, Article 11 of Decree No. 126/2017/ND-CP within 10 working days
from the date of receipt of decisions and regulatory documents of competent
authorities on handling of financial, labor and land issues related to the
equitization process, and regulations laid down in Clause 1, Article 11 of the
Decree No. 126/2017/ND-CP, on the enterprise's website and the Government’s
Portal; and must send such information to the agencies representing owners’
ownership interests in the equitized enterprise, the Ministry of Finance, the
Steering Committee for Enterprise Innovation and Development.
Article 12.
Implementation provisions
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
2. This Circular shall replace the
Circular No. 41/2018/TT-BTC dated May 4, 2018 of the Ministry of Finance,
providing instructions about several regulations on financial disposition and
business valuation during the process of transformation of state enterprises
and single-member limited liability companies with 100% of their charter
capital wholly held by state enterprises into joint-stock companies.
3. In the course of implementation
hereof, if there is any difficulty that arises, it should be notified to the
Ministry of Finance to seek its further actions./.
PP. MINISTER
DEPUTY MINISTER
Huynh Quang Hai