MINISTRY OF FINANCE
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.: 219/2015/TT-BTC
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Ha Noi, on
December 31, 2015
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CIRCULAR
GUIDELINES FOR A NUMBER OF CONTENTS OF THE GOVERNMENT'S
DECREE NO. 91/2015/ND-CP DATED OCTOBER 13, 2015 REGRADING THE INVESTMENT OF
STATE CAPITAL IN ENTERPRISES, USE AND MANAGEMENT OF CAPITAL AND ASSETS IN
ENTERPRISES
Pursuant to the Law on use
and management of state capital invested in manufacturing and business operations
of enterprises dated November 26, 2014;
Pursuant to the Enterprise Law
dated November 26, 2014;
Pursuant to the Government's
Decree No. 91/2015/ND-CP dated October 13, 2015 regrading state capital invested in
enterprises, use and management of capital and assets in enterprises;
Pursuant to the Government's
Decree No. 215/2013/ND-CP dated December 23, 2013 stipulating the functions, tasks, powers and organizational structure
of the Ministry of Finance;
At the request of
Director of Agency of Corporate Finance;
Minister of Finance promulgates this Circular
for guiding a number of contents of the Government's
Decree No. 91/2015/ND-CP dated October 13, 2015
regarding state capital invested in enterprises, use and management of capital and assets in enterprises;
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GENERAL PROVISIONS
Article 1. Regulated scope
and applicable entities
1. This Circular guides a
number of contents of investment of state capital in enterprises
and financial management of state-owned enterprises as stipulated at the Government's Decree No. 91/2015/ND-CP dated
October 13 2015 regarding investment of state capital in
enterprises, use and management of capital and assets in enterprises
(hereinafter referred to as the Decree No. 91/2015/ND-CP);
2. This Circular is applied
to all entities stipulated in Article 2 of the Decree No. 91/2015/ND-CP;
Chapter II
SPECIFIC PROVISIONS
Article 2. Recording an
increase of the state capital invested in enterprises
1. Investment of state
capital for establishing new state-owned enterprises:
a) The newly established state-owned enterprise
shall base on whether the actual capital granted by the state (as for newly
established enterprise without construction investment project) or the state
capital granted according to accounting of finished works approved by the
competent authority (as for newly established enterprise based on the handover
of the construction investment project) to record an increase of the equity in
its accounting books. In case the state actually-invested capital is lower than
the charter capital registered upon the establishment of the enterprise, that
enterprise must register for amending its charter capital recorded in its
business registration certificate which has been issued upon the establishment
of the enterprise to be equal to the state capital actually invested in that
enterprise in accordance with the Enterprise Law in 2014.
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2. Additional investment of
state capital in an operating state-owned enterprise:
If the operating state-owned enterprise has
received assets invested by the capital originated from the state budget from
other places and received the state support expenses (support for house and
land resolution, moving and re-arrangement and/or support for infrastructure
investment in industrial parks) for performance of construction investment
projects or improving its business and production units, decisions on assets
transfer issued by the competent authorities and assets handover minutes shall
be used as a ground to make accounting of state support expenses (for
performance of the investment project) and record an increase of the state
capital in that enterprise and amend the actually-contributed charter capital
in its business registration certificate in accordance with the Enterprise Law
in 2014.
3. Investment of state
capital in joint-stock companies or multiple-member limited liability
companies:
a) Basing on the documents requesting additional
investment of the charter capital in a joint-stock company or multiple- member
limited liability company which are approved by the competent authority and
after the state has made an additional investmen of capital (including cases of
additional investment made by use of dividends or profits devided according to
the state portion of capital); or if the joint-stock company or multiple-
member limited liability company uses after-tax profits and/or development
investment funds and/or capital surplus (for the joint-stock company) and/or
other funds, the joint-stock company or multiple- member limited liability
company is responsible for recording an increase of the charter capital in
accordance with the laws.
b) The representative agency of state capital’s
owner shall appoint a representative to request the joint-stock company or
multiple- member limited liability company to record an increase of the
contributed capital (increased value of state capital invested in company) and
issue a writing notice notifying total value of the state capital actually
invested or contributed in the company and the number of stocks hold by the
state shareholder (for investment made in joint-stock company ) after an
increase of the charter capital has been made and then send such notice to the
representative agency for following and management.
Article 3. Transfer of state
capital invested in a joint-stock company or multiple-member limited liability
company:
Transfer of state capital invested in a joint
stock company or multiple-member limited liability company is executed in
accordance with Article 38 of the Decree No.91/2015/ND-CP. In such cases, with
regard to a listed or registered joint-stock company on the Upcom upon the
agreed methods, if the transfer of state capital (or transfer of stocks) is
carried out, the agreed selling price must not exceed the transaction price
limit (the price fluctuation limit) on stock code transacted on the transfer
date provided that it shall not lower than the price of stock determined in the
company’s book value for the stock code listed/registered for transactions
basing on total equity capital divided by the chartered capital of the joint
stock company at the transfer time.
Article 4. Management of
capital and assets at state-owned enterprise:
The management of state capital and assets at
the state-owned enterprise is executed in accordance with Section 1 Chapter III
of the Decree No. 91/2015/ND-CP and following regulations:
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2. If the enterprise has
special assets such as domestic aniamals, crop plants, equipments with
radioactive source or poison contained in them and other special assets, in
addition to the compliance of the financial laws in course of management, use
and liquidation of such assets, the regulations, processes and technical
specifications promulgated by the sector managing agencies must be complied.
3. Conservation of
state-owned enterprise’s equity: The enterprise shall apply the conservation
methods stipulated at Section 2 Article 22 of the Decree No. 91/2015/ND-CP for
conservation of state invested capital. Where:
a) Making of provisions against risks consisting
of: provision against devaluation of inventories, provision against bad debts,
provision against devaluation of financial assets and provision for warranties
over products, goods and construction works, the enterprise shall comply with
the Circular No. 228/2009/TT-BTC dated December 07, 2009 and the Circular No.
34/2011/TT-BTC dated March 14, 2011 and the Circular No. 89/2013/TT-BTC dated
June 28, 2013 of Ministry of Finance and other amendment, supplementation and
substitution circulars (if any).
b) The level of state capital conservation is
evaluated according to the enterprise's profit or loss which is the defference
between total revenue and other incomes minus the sum of expenses incurred
during its operation as stipulated at Section 3 Article 22 of the Decree No.
91/2015/ND-CP. If the difference is a positive number, the enterprise has
profit; if the difference is a negative number, the enterprise incurs a loss;
and if the difference is zero, the enterprise neither has profit nor incurs
loss.
c) The level of state capital conservation is
evalued on the basis of management and determination of revenue, other income
and expenses for determining the enterprise’s profit or loss (business results)
as stipulated at Section 3 Article 22 of the Decree No. 91/2015/ND-CP and
Vietnamese Accounting Standard and applicable corporate accounting policies
promulgated by the Ministry of Finance.
Article 5. Management of
state-owned enterprise’s capital invested in a joint-stock company and a
limited liabilitycompany:
Management of the state-owned enterprise’s
capital invested in a joint-stock company or a limited liability company is
executed in accordance with Section 2 Chapter III of the Decree No.
91/2015/ND-CP and following regulations:
1. With regard to the
state-owned enterprise having its capital invested in a joint-stock company, if
the joint-stock company uses development investment funds, equity surplus or
other funds for increasing its charter capital in accorndace with the laws, the
state-owned enterprise shall appoint a representative for its portion of
capital invested in the joint-stock company to request the joint-stock company
to record an increase of equity capital (increased value of state capital in
the joint-stock company) and issue a writing notice of total state capital
actually invested or contributed in that joint-stock company and the number of
stocks hold by the state-owned enterprise as a shareholder after an increase of
the charter capital has been recorded and then submit such notice to the state
capital’s owner (the state-owned enterprise) for following and management.
2. If the subsidiary company
is a wholly state-owned single-member limited liability company, the
state-owned enterprise shall annually approve financial statements and
decisions on distribution and use of after-tax profits and collection of
after-tax profits from the subsidiary company in accordance with the approved
financial rules. The state-owned enterprise shall collect the margins between
the equity capital and the approved charter capital in the subsidiary company
(by forwarding the balance of development investment funds or undistributed
after-tax profits in the subsidiary company) and aggregate it with income from
financial activities in accordance with Point b Clause 1 Article 28 of the
Decree No. 91/2015/ND-CP.
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The state-owned enterprise shall execute
external transfer of its capital in accordance with Article 29 of the Decree
No. 91/2015/ND-CP and the following guidelines:
1. Transfer of state
capital invested at a multiple-member limited liability company:
a) If the state-owned enterprise requests a
multiple-member limited liability company to purchase its stake, an agreement
on selling price shall be made in accordance with Article 52 of the Enterprise
Law in 2014. The agreed selling price is determined in accordance with Point c
Clause 1 Article 38 of the Decree No. 91/2015/ND-CP.
b) If the state-owned enterprise transfers its
stake to a company’s member or other organization or individual who is not a
company’s member, such transfer shall be executed in accordance with Article 53
of the Enterprise Law in 2014, in which:
- If the state-owned
enterprise transfers its stake to another member in the company, the transfer
price shall be agreed with the transferee. The selling price is determined
according to result of price appraisal made by an organization competent to
conduct the price appraisal in accordance with Point c Clause 1 Article 38 of
the Decree No. 91/2015/ND-CP.<
- If the state-owned
enterprise transfers its stake to an organization or individual who is not a
company’s member, the transfer shall be executed by holding an open auction or
the transfer price shall be directly agreed with the transferee in accordance
with Clause 4 Article 38 of the Decree No. 91/2015/ND-CP. Particulars are as follows:
As for transfer of state capital worth more than
VND 10 billion upon the method of holding an open auction, it shall take place
at the Stock Exchange. As for transfer of state capital worth less than VND 10
billion, financial intermediaries shall be hired to carry out auction sale or
hold auctions on their own at the state-owned enterprises or conduct auction at
the Stock Exchange.
A direct agreement of
the selling price shall be made between the state-owned enterprise and
investors in the event that the open auction is not successful (only one
investor applies for purchase of the state-owned enterprise’s stake).
Determination of starting price before an open
auction is held and for using as a ground for sales conducted by means of
direct agreement is executed in accordance with Point c Clause 1 Article 38 of
the Decree No. 91/2015/ND-CP.
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External transfer of the state-owned
enterprise’s capital invested in a joint-stock company is executed executed in
accordance with Clause 4 Article 29 of the Decree No. 91/2015/ND-CP. In such
cases, with regard to a listed or registered joint-stock company on the Upcom
upon the agreed methods, if the transfer of state capital (or transfer of
stocks) is carried out, the agreed selling price must not exceed the
transaction price limit (the price fluctuation limit) on stock code transacted
on the transfer date provided that it shall not lower than the price of stock
determined in the company’s book value for the stock code listed/registered for
transactions basing on total equity capital divided by the chartered capital of
the joint stock company at the transfer time.
3. Response to earnings
from external transfer of state-owned enterprise’s capital:
a) The remains of the enterprise’s earnings from
external transfer of its invested capital (including transfer of rights
certificates or rights of capital contribution) after deducting the value of
invested capital, transfer expenses and stipulated tax payments is aggregated
with income from its financial activities.
b) If the earnings from external transfer of
state-owned enterprise’s capital (including transfer of rights certificates or
rights of capital contribution) is not sufficient to cover the value of
invested capital recorded in the enterprise’s accounting books and the
estbalished provisions (if any), the deficit shall be accounted into expenses
for its financial activities.
Article 7. Stocktaking and
handling stocktaking results of a state-owned enterprise
1. The state-owned
enterprise must make a stocktaking of actual assets in order to determine the
quantity of current assets and fixed assets subject to its management and use
(including plants, domestic animals and cattles) and/or the number of acquired
shares without any payment and compare the receivables and payables in the
following cases:
a) When accounting books are closed for
preparing annual financial statements;
b) Execution of the competent authorities’
decisions on full division, partial division, merger, consolidation and
ownership transfer;
c) After an event of natural calamity or enemy
hostility or when assets of the state-owned enterprise have been changed due to
any other reason;
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2. Handling stocktaking
results:
a) Handling stocktaking results when preparing
annual financial statements.
- Relevant community and/or
individual shall, basing on the stocktaking results, make up a deficiency of
assets compared to those recorded in the accounting books caused by their
subjectiveness. The Member Board or the Company’s President (as for enterprises
having no Member Board established) or General Director or Director of the
state-owned enterprise shall decide the compensation rate and be responsible
for their own decisions. If there is still deficient in the value of assets
after the relevant community and/or individual have made up a deficiency of
assets by compensation (or such deficiency is caused by objective reasons), the
state-owned enterprise shall account the remains of dificient value of assets
(if any) into its manufacturing and business expenditures.
- If the stocktaking
results show a redundancy of assets compared to those recorded in the
accounting books, the state-owned enterprise shall determine reasons of such
redundancy. It shall be accounted into the enterprise’s other incomes if
there's not required to return such redundant assets. The redundant assets
awaiting resolution shall be accounted into other payables. If reasons of redundancy
of assets have been specified and a resolution minute has been granted, the
accounting shall be based on such resolution minute.
b) Handling of stocktaking results stipulated at
Point b, c and d Clause 1 of this Article is executed in accordance with the
laws for each specific stocktaking.
c) The enterprise is responsible for timely
handling its losses of assets and debts. If failing in handling such losses of
assets and debts, the Member Board or the Company’s President (as for
enterprises having no the Member Board established) or General Director or
Director of the state-owned enterprise shall assume responsibilities before the
representative agency of the state capital’s owner as though they submit
unhonest reports of the enterprise’s financial situation and shall assume
responsibilities before the law for their violation resulting in the losses of
assets of enterprise.
Article 8. Profit
distribution of a state-owned enterprise
Profit distribution of a state-owned enterprise
is executed in accordance with Article 31 of the Decree No. 91/2015/ND-CP and
the following regulations:
1. In the fiscal year, if
the enterprise both incurs a loss which is carried forward to the next year
(negative taxable income) and earns a profit from incomes not subject to the
corporate income tax or last year’s accumulated losses carried forward and
deducted from taxable income in the next year as stipulated at the Enterprise
Law, it is only allowed to use the surplus of profits in that fiscal year for
making distribution and building up funds as stipulated at Point 1,2,3 Article
31 of the Decree No. 91/2015/ND-CP only after the said losses have been
deducted.
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a) Rating of enterprise into A,B,C to use as a
ground for building up funds is executed in accordance with Government's
regulations on supervision of state capital invested in enterprise and/or
financial supervision for evaluating operating results and disclosing financial
information of state-owned enterprises and state-invested enterprises and
Guidance Circular of the Ministry of Finance.
b) Monthly salary used as the basis for setting
aside the funds:
- Building up the reward
and welfare funds of a state-owned enterprise: Based on the enterprise’s
implemented salary fund for employees in the fiscal year which is determined in
accordance with the Government’s Decree No.50/2013/ND-CP dated May 14, 2013 on
management of employment, salary and bonuses for employees working in
state-owned single-member limited liability companies and other amendment,
supplementation or replacement documents (if any) devided by 12 months.
- Building up the reward
funds for enterprise’s managers and comptrollers: Based on the implemented
salary and remuneration fund for managing officers (both specialized and
unspecialized officers) as determined in accordance with the Government’s
Decree No.51/2013/ND-CP dated May 14, 2013 on salay, remuneration and bonuses
of members of the Member Board or the Company’s President, Comptrollers,
General Directors or Directors, Deputy General Directors or Deputy Directors,
Chief Accountant of state-owned single-member limited liability companies and
other amendment, supplementation or replacement documents (if any) devided by
12 months.
Article 9. Setting up the
financial plan
Setting up the financial plan of a state-owned
enterprise is executed in accordance with Article 33 of the Decree No. 91/2015/ND-CP
and the following regulations:
1. On the periodical basis
of each year, at the same time when the managing Ministries and the Provincial
People’s Committees set up budget forecast as stipulated by the Law on state
budget, the enterprise shall set up its financial plan for the next year and
submit to the representative agency of state capital’s owner and same-level
financial institution ahead of every July 31 for summing up and preparing state
budget estimate. Grounds and orders for setting up the financial plan are
executed in accordance with Article 33 of the Decree No. 91/2015/ND-CP.
2. Forms of reports are
prepared according to Annex 1A “Reports on financial plan” enclosed to this
Circular. In which, Form No. 01 is report of a parent company and Form No. 02
is consolidted report of a Corporation or an Incorporation or a Company that
belongs to the group of a parent-subsidiary company.
Article 10. Report policies
and summation
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1. Periodical reports
include:
a) Financial statements: At the end of an
accounting period of quarter or year, the enterprise must prepare its quarterly
or annual financial statements (if the enterprise is a parent company of a
state economic corporation or a parent company of a state incorporation or a
parent company that belongs to the group of a parent company-subsidiary
company, a separate financial statement shall be prepared for the parent
company and a consolidated financial statement shall be made for a state
economic corporation or a state incorporation or a parent company that belongs
to the group of a parent company-subsidiary company). The enterprise’s
quarterly or annual financial statements must be prepared under adequate forms.
Forms and time-limit for submission and
report-receiving bodies are specified in accordance with the Circular No.
200/2014/TT-BTC dated December 22, 2014 of the Ministry of Finance on
guidelines for corporate accounting policies, Vietnamese Accounting Standard
and the Circular guilding for execution of accounting standard promulgated by
Ministry of Finance;
b) Reports on a number of off-balance sheet
items:
In addition to the enterprise’s financial
statements of quarter or year prepared,the state-owned enterprise shall prepare
reports on a number of off-balance sheet items. Time-limit for submission and
report-receiving bodies of the aforesaid reports are the same with those of the
enterprise’s financial statements as stipulated at Point a Clause 1 of this
Article.
Forms of the aforesaid reports are prepared in
accordance with Annex 1B “Forms of off-balance sheet items” enclosed to this
Circular. In which, Form No. 01 is report on off-balance sheet items of parent
company and Form No. 02 is report on off-balance sheet items for consolidated
report.
c) Reports on financial situation and production
and business results
- Quarterly, reports on
financial situation and production and business results shall be prepared and
sent to the representative agency of state capital's owner and same-level
financial institution ahead of the 5th of the beginning month of the
next quarter. Forms of the aforesaid reports are prepared in accordance with
Annex 1C enclosed to this Circular.
- As for the state economic
corporations or state incorporations (managed by or established under decision
of the competent authority), the established financial plans (as per Article 9
of this Circular) and the prepared reports on execution situation as mentioned
above shall be sent to the Agency of Corporate Finance, directly under the
Ministry of Finance and General Department of Taxation for summation of reports
on evaluating financial situation and production and business results.
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Quarterly, the state
economic corporations or state incorporations, parent companies belong to the
group of a parent – subsidiary company (managed by or established under
decision of the competent authority) shall update restructuring situation and
figures up to the 15th of the ending month of that quarter and
prepare and send the following reports to the representative agency, same-level
financial institution and the Agency of Corporate Finance, directly under the
Ministry of Finance ahead of the 20th of the ending month of that
quarter:
- Reports on situation of a
state-owned enterprise’s arrangement and equitization are executed in
accordance with Annex 2A (including three forms No. 01, 02 and 03) enclosed to
this Circular.
- Reports on situation of
capital withdrawal at a state enterprise are executed in accordance with Annex
2B enclosed to this Circular.
The representative agency is responsible for
summarizing reports submitted by the state economic corporations or state
incorporations or parent companies belong to the group of a parent – subsidiary
company, independent enterprises under the state management according to the
aforesaid annexes and sending to the Ministry of Finance ahead of the 25th
of ending month of that quarter in order that the Ministry of Finance
summarizes all reports and submits to the Prime Minister in accordance with the
Government’s Decree No. 59/2011/ND-CP dated July 18, 2011 on transformation of
enterprises of 100% state capital into joint-stock companies and Decision No.
929/QD-TTg dated July 17, 2012 of the Prime Minister on approval of Project on
restructuring state-owned enterprises and focusing on state economic
corporations and state incorporation in stage 2011-2015.
2. Ad-hoc reports:
In addition to the reports stated at Clause 1 of
this Article, ad-hoc reports is prepared and submitted at the request of the
representative agency and state managing authority. Contents (forms) and
time-limit of report is executed at each specific request of the representative
agency and state managing authority.
3. The representative
agency and the state-owned enterprise send the reports stated at Clause 1 of
this Article to the receiving agencies thorough the post office and by
accessing the corporate finanacial management information system at website:
http://soe.mof.gov.vn or http://dnnn.mof.gov.vn. Accessing account and password
of the representative agency and the state enterprise are executed as follows:
As for the representative agency: The managing
subordinate unit which is assigned by the representative agency shall appoint a
person to be in charge of accessing account and password provided by the
Ministry of Finance.
As for the state-owned enterprise: Accessing
account is the enterprise’s tax code and password is sent by the said system
through the enterprise’s email address registered with the Ministry of Finance.
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In the event of passwords lost or failure in
accessing the management information system, the representative agency and the
enterprise must timely inform the Agency of Corporate Finance, directly under
the Ministry of Finance, for support and resolution.
4. The representative
agency and same-level financial institution are responsible for supervising and
speeding up the reporting units in execution of report policies as stipulated
above. If the enterprise fails in execution of report policies or makes late
submission of reports without any legitimate reason during the year, it shall
be ranked according its compliance of report policies by the representative
agency.
Chapter III
IMPLEMENTATION
Article 11. Effect
1. This Circular shall take
effect from February 15, 2015 and replace the Circular No. 220/2013/TT-BTC
dated December 31, 2013 of Ministry of Finance regarding guidelines on a number
of articles of the Government’s Decree No. 71/2013/ND-CP dated July 11, 2013 on
investment of state capital in enterprises and financial management of
enterprises of which 100% charter capital is held by the state.
2. The depreciation of
fixed assets;dealing with exchange rate differences and building up other
provisions are executed in accordance with applicable laws of the Ministry of
Finance and other amendment, supplementation or replacement documents (if any).
3. Distribution of
after-tax profits and building up the funds as from the fiscal year in 2015 are
executed in accordance with Article 31 of the Decree No. 91/2015/ND-CP.
4. Regulations on the rate
of building up two reward funds and welfare fund by actual two months’ salary
during the year stated at Clause 2 Article 7 of the Circular No.
178/2014/TT-BTC regarding guidelines on a number of contents of finance in
tenders or orders or entrusting plans to units managing and operating
irrigational works.
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PP. MINISTER
DEPUTY MINISTER
Tran Van Hieu