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MINISTRY OF FINANCE
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No:
127/2012/TT-BTC
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Ha Noi, August 08, 2012
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CIRCULAR
GUIDANCE ON STANDARDS, CONDITIONS AND PROCEDURES
FOR RECOGNITION OF ENTERPRISE VALUE DETERMINATION SERVICES PROVIDER
Pursuant to Decree No.
118/2008/ND-CP of November 27, 2008 of the Government regulating functions,
duties, powers and organizational structure of Ministry of Finance;
Pursuant to Decree
101/2005/ND-CP of the Government of August 03, 2005 of the Government on
valuation;
Pursuant to Decree No.
59/2011/ND-CP July 18, 2011 by the Government on the transformation of
enterprises with 100% state-owned companies to the joint-stock companies;
At the proposal of the Director
of Department of Finance of banking and financial institutions;
Minister of Finance issues
Circular guiding the standards, conditions and procedures to recognize the
enterprise value determination services provider for equitization as follows:
Chapter 1.
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Article
1. Scope and subject of application
1. This Circular makes guidance for the
standards, conditions and procedures to recognize the enterprise value
determination services provider to enterprises with 100% state-owned companies
transformed to the joint-stock companies (hereafter referred to as valuation
and consultation organization)
2. The subjects of this Circular is the valuation and consultation
organizations, the competent agencies to decide the equitization plans and
other related organizations and individuals.
Article
2. Explanation of terms
In addition to terms defined in
Decree No. 59/2011/ND-CP of July 18, 2011 by the Government on the
transformation of enterprises with 100% state-owned to joint-stock company
(hereinafter referred to as Decree No. 59/2011/ND-CP), in this Circular, the
following terms are construed as follows:
1. "The competent agency to decide equitization plan" is the
competent agency to decide the equitization plan of enterprises with 100% state
capital as stipulated in Decree No. 59/2011/ND-CP.
2. "Competent State agencies to examine and inspect" includes
inspection agency of all levels, the State auditing agencies and other
competent agencies in the inspection and examination of the operation of
enterprise value determination for enterprises with 100% state capital
transformed to joint-stock companies.
3. "Enterprise operation Permit" means the certificate of business
registration or investment certificate or permit of establishment and operation
of the enterprise specified in the Enterprise Law, Investment Law and relevant
laws .
Chapter 2.
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Article 3. Standards,
conditions of valuation consultation organization
1. The domestic valuation consultation organization register to provide
the equitized enterprise value determination consultation services must meet
the following criteria and conditions:
a) Being audit companies, securities companies and valuation enterprises
having valuation functions and satisfying the conditions for the organization
and operation of each type of enterprise in accordance with the laws of Vietnam;
b) There is professional process of enterprise value determination in
accordance with Decree No. 59/2011/ND-CP, the relevant guiding documents and
other amended and supplemented documents (if any);
c) Having at least five (05) years of experience in one (01) of the
following areas of operation: valuation, auditing, accounting, financial
consultation, consultation of enterprise ownership transformation. During the
three (03) most recent years to the time of submission of enterprise value
determination services, performing the service provision implementation
business valuation, each year to perform services in the areas mentioned above
at least thirty (30) contracts;
d) Having at least three (03) valuators who are granted valuation card by
the Ministry of Finance and register the valuation practice in the enterprise;
dd) Meeting the criteria of quantity and quality of staff working in the
area and sectors in which the organizations are operating under the provisions
of Point a of this clause;
e) Not being sanctioned for administrative violations with aggravating
circumstances by the conclusions of the agencies making decision on sanction in
the area of valuation and enterprise value determination in five (05) years
preceding the year of registration to perform the enterprise value
determination.
Where organizations requesting to
be provided the enterprise value determination services are inspected and
examined and concluded to have committed violations in valuation operation and
enterprise value determination and in the process of dossier transfer under the
regulations of law shall not be qualified and eligible for registration for
valuation consultation organization under the provisions of this Circular.
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a) Being organization operating in the areas of valuation, auditing, accounting,
financial consultation and consultation of enterprise ownership transformation
under the law of the country where its headquarters is located.
b) Having at least five (05) years of experience in one of the following
areas: valuation, auditing, accounting, securities, financial consultation and
consultation of enterprise ownership transformation.
Article
4. Dossier for registration to become valuation organization (new registration)
1. Application for
registration to become valuation organization under the Form in Annex 1
attached to this Circular.
2. Certified copy of the enterprise operation permit.
3. Professional process of enterprise value determination is expected to
apply ensuring the consistency with the provisions of the law.
4. Making report on the results of service provision contracts made in the
areas of valuation, auditing, accounting, financial consultation, consultation
of enterprise ownership transformation in three (03) years preceding the
year of registration of valuation advisory services under the form in Annex 2
attached to this Circular;
5. List of valuators registering the valuation practice at the enterprise,
together with the following documents:
a) Certified copy of
valuator card granted by the Ministry of Finance;
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6. Financial statements of the two (02) years preceding the year of
registration to become valuation organization. The financial statements must be
audited by independent auditing organizations operate legally operating in
Vietnam;
7. Written commitment of the legal representative of the enterprise
concerning:
a) Ensuring the
accuracy, honesty of dossiers and documents registering the implementation of
valuation consultation as prescribed in this Article.
b) Application of the
professional process for enterprise value determination registered under
provisions in Clause 3 of this Article upon recognized as the valuation
consultation organization and this professional process is consistent with the
regulations of current law.
c) Not committing
violations of regulations of the law as prescribed in this Circular.
Article
5. Process and procedures to recognize the newly-registered valuation
consultation organization.
1. The recognition of
the valuation consultation organization first registered shall be annually
considered and announced by the Ministry of Finance.
2. Organizations qualified and eligible as prescribed in Article 3 of this
Circular in need of becoming the valuation consultation organization for the
following year shall send one (01) set of dossier under the provisions of
Article 4 of this Circular to the Ministry of Finance. The time of dossier
receipt time is from October 1 to October 31 every year.
3. Within five (05) working days after receiving the dossier, the Ministry
of Finance shall check the completeness and validity of the dossier and require
the enterprise to supplement it (if any).
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5. The Ministry of Finance shall publish a list of valuation consultation
organizations applied from January 01 to December 31 of the following year in
writing and on the website of the Ministry of Finance.
Article
6. Annual assessment of operation of valuation consultation organizations.
1. Every year, the
valuation consultation organizations recognized by the Ministry of Finance
shall be considered and assessed in order to continue providing the enterprise
value determination services in the following year. The assessment contents
include:
a) Ensuring criteria
and conditions of the valuation consultation organizations prescribed at Point
a, b, d, dd and e, Clause 1, Article 3 of this Circular.
b) Fully and on
schedule implementing the report of operation result to the Ministry of Finance
prescribed in Article 9 of this Circular.
2. Assessment process
of the operation maintenance of the valuation consultation organizations:
a) From October 01 to
October 31 of each year, the valuation consultation organization shall send the
report of operation result prescribed in Article 9 of this Circular.
b) Based on reports of the valuation
consultation organizations provided at Point a of this
Clause, the reports and information of the organizations specified in Article
11, Article 12 and Article 13 of this Circular, the Ministry of Finance shall
consider and review the conditions of the
valuation consultation organization under Clause 1 of this
Article. The qualified valuation consultation
organizations shall continue to be provided with the enterprise value
determination services in the subsequent year and published in the list of
valuation consultation organizations by the Ministry of
Finance as prescribed in this Circular.
3. The valuation consultation
organization is eliminated from the list of valuation consultation organizations under
the provisions of this Article shall be permitted to continue performing the
contracts signed and being carried out and not entitled to sign new contract
since the Ministry of Finance give the notice from eliminating from the list of
valuation consultation organizations
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Article 7. Cases of
elimination from the list of valuation consultation organizations
1. The valuation
consultation organization shall be automatically eliminated from the list of valuation consultation
organizations recognized by the Ministry of Finance in the
following cases:
a) Being revoked the enterprise operation Permit.
b) Changing business
line and no longer having business functions prescribed at Point a, Clause 1,
Article 3 of this Circular.
c) Performing the division, separation, merger, consolidation,
transformation or dissolution.
d) Having legal violations with signs of criminal offenses according to
the conclusions of the competent State agencies on examination and inspection.
2. Based on the reports of valuation consultation organization prescribed
in Article 9 and other documents held by the relevant organizations prescribed
in Article 11, Article 12 and Article 13 of this Circular, the Ministry of
Finance shall make decision on the elimination of the valuation consultation
organization from the list of valuation
consultation organizations.
Article
8. Cases not permitted to perform the provision of enterprise value
determination services
The valuation consultation
organization shall not be entitled to perform the enterprise value determination services in the following
cases:
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2. The manager,
operator, member of control Board, chief accountant (or accounting in charge),
valuator of the valuation consultation organization who is the person related
to the enterprise being valuated prescribed in Clause 17, Article 4 of the
Enterprise Law dated November 29, 2005;
3. Being organization
that is providing or have provided auditing services, accounting record and
preparation in two (02) preceding years for the enterprise evaluated.
Chapter 3.
REGULATIONS
ON INFORMATION AND REPORT OF VALUATION CONSULTATION ORGANIZATION
Article
9. Regulations on information and report.
1. Annually, the
valuation consultation organizations recognized by the Ministry of Finance
shall send report to the Ministry of Finance on their operation situation of,
particularly:
a) Reporting period
Report of operation
result of the valuation consultation organization from October 01 of the
preceding year to September 30 of the current year.
b) Reporting content
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- Situation and result
of implementation of operations on enterprise value
determination consultation in the reporting period.
- Opinions of the competent authority to make decision on the plan of
equitization, the steering board of equitization of consulting services quality
as prescribed in Article 11 of this Circular.
c) List of documents
and dossiers attached to the list.
- List of contracts to provide services within the operation permit of
the enterprise and the contract to determine the equitized enterprises value
made in the reporting period under the form in Annex 2 and Annex 3 attached to
this Circular;
- Financial statement for the fiscal year preceding the reporting year
audited by independent auditing organizations legally operating in Vietnam and
the 6-month financial statement of the reporting year (if any) certified by
the legal representative of the enterprise.
d) Time to submit periodically report:
On October 31 annually at the latest (as certified by post). After this date,
the valuation consultation organization is considered not to comply with the
regulations on reporting.
2. The valuation consultation organizations are responsible for sending
irregular reports to the Ministry of Finance in the following cases:
a) Being revoked the enterprise operation Permit.
b) Performing the division, separation, merger, consolidation, transformation
or dissolution or bankruptcy;
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d) Having sanctioning
decision of the competent agency and the conclusion of the competent state
agency on examination and inspection as prescribed in this Circular.
dd) Other cases as
required by the Ministry of Finance to serve the work of management and
supervision of the State for the operation to provide enterprise value determination
services.
Chapter 4.
RESPONSIBILITIES
OF ORGANIZATIONS AND INDIVIDUAL CONCERNED.
Article
10. Responsibilities of valuation consultation organization.
1. Complying with the provisions of relevant laws on methods, process for
enterprise value determination and properly observing the contents under the
contracts signed with customers.
2. Taking responsibility before law for the results of the enterprise
value determination. The valuation consultation organization must pay damages
for breach of the provisions of law in the implementation process of valuation
consultation services or shall be handled violations under the regulations of
the law.
3. Taking responsibility for managing professional activities of staff
under its management and shall promptly report to the Finance Ministry on
employees who violate the provisions of law in the course of professional
practice as prescribed in this Circular.
4. Explaining or providing information and data relating to the results of
enterprise value determination upon there is complaint or a written request of
the competent authority deciding on the plan of equitization, the business
owner’s representative, the State Auditor, the Finance Ministry and the
competent agencies as prescribed in this Circular and related documents.
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6. Fully performing
obligations of report as prescribed in Article 9 of this Circular.
Article 11.
Responsibilities of the competent authority deciding on the plan of
equitization
1. Choosing the valuation consultation organization in the list of
valuation consultation organization annually announced by the Ministry of
Finance to carry out the consultation of enterprise value determination as
prescribed by the law on transformation of enterprises with 100% state-owned
capital to joint-stock companies. In case of choice of foreign consultation
unit, the agency deciding on the equitization shall base on the provisions of
Clause 2, Article 3 of this Circular and other relevant legal documents to
choose and take responsibility for this choice.
2. Managing and supervising over the
operation to provide enterprise value determination services under the contract signed between the valuation consultation
organizations and enterprises with 100% state-owned capital under the managed
subjects.
3. Refusing to make
payment of the fee of performance of enterprise value determination services to
the valuation consultation organization if the result of enterprise value
determination does not ensure the consistence with provisions of the State in
the Decree No. 59/2011/NĐ-CP and this Circular.
4. Having written
opinion on the services quality performed by the valuation consultation
organization for each of the contract of enterprise value determination
consultation.
5. Making report on the use of enterprise value determination services to
the ministries and provincial and municipal People's Committees, the economic
groups, the superior State Corporation for these agencies to provide
information to the Ministry of Finance as stipulated in Clause 2, Article 12 of
this Circular.
6. Promptly notifying the Ministry of Finance of the violations (if any)
of the valuation consultation organizations in the process of implementation of
the contracts of enterprises value determination under scope of its management
to handle as prescribed by the law.
Article 12.
Responsibilities of the ministries, People's Committees of centrally-run
provinces and cities, the economic groups and State Corporation
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2. Prior to October 31 annually, providing information to the Finance
Ministry on the use of enterprise value determination consultation services of
the enterprise consulting services business valuation of the affiliated units
conducting the equitization under the form attached in Annex 4 attached to this
Circular hereof.
Article
13. Responsibilities of the competent state agencies on examination and
inspection.
1. Performing the
examination and inspection on the areas of operation of the enterprises
registering to provide the equitized enterprise value determination
consultation services in accordance with the current regulations.
2. Notifying the
Ministry of Finance of the conclusions of legal violation of valuation
consultation organization as prescribed in this Circular.
Article
14. Responsibilities of the Ministry of Finance
1. Considering and
verifying dossier, choosing and annually announcing the List of valuation
consultation organizations as prescribed in this Circular.
2. Coordinating with the competent agencies to decide on the plan of
equitization and the State competent agencies to manage the operation of
valuation consultation organizations as prescribed in this Circular and other
relevant legal documents.
Chapter 5.
IMPLEMENTATION
ORGANIZATION
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1. The valuation
consultation organizations that are being provided with the enterprise value
determination services under the decisions of the Ministry of Finance are
permitted to provide the enterprise value determination consultation services
with 100% state-owned capital for equitization by the end of December 31, 2012.
2. For the recognition
of valuation consultation organization for the year 2013:
a) The enterprises meeting the criteria and conditions defined in Article
3 of this Circular (including the organizations specified in Clause 1 of this
article) and wishing to provide the enterprise
value determination consultation services must submit
dossiers for registration as prescribed in this Circular to the Ministry of
Finance no later than May 31, 2012
b) Based on records of the business prescribed at Point a, Clause 2 of
this Article, the Ministry of Finance shall review and assess the condition of
the evaluation consultation organizations as prescribed in this Circular and
publish the list of valuation consultation organizations provided with services
in 2013 before December 31, 2012.
Article
16. Effect
1. This Circular takes effect as from
October 1, 2012.
2. This Circular shall supersede the Decision No. 100/2007/QD-BTC dated
December 6, 2007 of the Minister of Finance on the promulgation of the
Regulation on selection and monitoring the valuation consultation
organizations,
3. During the
course of implementation, if there is any problem and difficulty arising, the
valuation consultation organizations and agencies concerned should promptly
report to the Ministry of Finance for study and settlement
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PP. MINISTER
DEPUTY PRIME MINISTER
Tran Xuan Ha