Thông tư 05/2013/TT-BTC

CIRCULAR

GUIDING FINANCIAL REGIME FOR CREDIT INSTITUTIONS AND FOREIGN BANK BRANCHES

Pursuant to the Law on Enterprises dated November 29, 2005;

Pursuant to the Law on Credit Institutions dated June 16, 2010;

Pursuant to the Decree No.57/2012/ND-CP of July 20, 2012 on the financial regime for credit institutions and foreign bank branches;

Pursuant to the Decree No.118/2008/ND-CP dated November 27, 2008 of the Government defining the functions, tasks, powers and organizational structure of the Ministry of Finance;

At the proposal of the Director of Finance of banks and financial institutions;

The Minister of Finance issues Circular guiding the financial regime for credit institutions and foreign bank branches.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Circular guides the implementation of the financial regime for credit institutions and foreign bank branches in Vietnam.

The financial activities of credit institutions and branches of foreign banks shall comply with the provisions of the Law on Credit Institutions dated June 16, 2010; the Decree No.57/2012/ND-CP of July 20, 2012 of the Government on the financial regime for credit institutions and foreign bank branches (in this Circular referred to as the Decree No.57/2012/ND-CP); the specific guidances in this Circular and other concerned legal documents on financial management.

Article 2. Application subjects

This Circular applies to the credit institutions and foreign bank branches are established, organized and operating under the provisions of Law on Credit Institutions dated June 16, 2010.

This Circular does not apply to the credit institutions as microfinance institutions, policy banks, cooperative banks, people's credit funds.

Chapter II

SPECIFIC PROVISIONS

Article 3. Equity capital of credit institutions

1. Charter capital.

2. The differences of exchange rate:

a) The difference arising from the consolidation of financial statements of the credit institutions (the parent company) and its subsidiaries using accounting currency other than Vietnam dong;

b) The differences arising in the unfinished process of investment, basic construction are accounted for in equity capital in accordance with the law provisions.

3. Asset revaluation difference is the difference between the book recorded value of assets and asset revaluation value when there is a decision of the State or when transferring assets for joint ventures, equity contribution.

4. Capital stock surplus is the difference between the par value of shares and the actual value ​​obtained from the issuance (if any).

5. Additional reserve funds of charter capital, funds for professional development and investment, the financial reserve fund.

6. Undistributed profits.

7. Other capital owned by the credit institutions includes: the value of treasury shares (if any) is recognized in accordance with the provisions of law on securities and other lawful capital sources.

Article 4. Use of capital, assets

1. The credit institutions, foreign bank branches are responsible for the management, use, monitoring of all existing assets and capital, performance of accounting in accordance with the current accounting regime; reflecting fully and accurately and timely the use status, changes of capital and assets in the course of business; specifying clearly responsibilities and sanction form for each department, individual in case of damage or loss of assets, capital of the banks.

2. The credit institutions and foreign bank branches are used working capital for business activities under the provisions of the Law on Credit Institutions, the Decree No.57/2012/ND-CP and the specific guidances in this Circular on the principle of assurance of capital safety and development.

a) During the course of business activities, the credit institutions and branches of foreign banks must ensure to maintain limited investment in the construction, purchase of fixed assets directly used for business on the principles: the residual value of fixed assets does not exceed 50% of the charter capital and additional reserve fund of charter capital for the credit institutions, not exceed 50% of the granted capital and additional reserve fund of capital granted for the branches of foreign banks.

b) For real estates held by the handling of the loan as stipulated in Clause 3, Article 132 of the Law on Credit Institutions:

- For real estates held temporarily by the credit institutions to sell, transfer in order to withdraw capital, the credit institutions do not account increase of assets, do not depreciate.

- For real estates acquired by the credit institutions to serve directly to the business activities, the credit institutions account increase of assets, depreciate in accordance with the law provisions and ensure limited investment in the construction, purchase of fixed assets in accordance with provisions of item a, Clause 2 of this Article.

c) The credit institutions and foreign bank branches take the measures to ensure the safety of capital as defined in Article 8 of the Decree No.57/2012/ND-CP The appropriation of reserves in the expenditures, the credit institutions and branches of foreign banks shall comply with the following specific provisions:

- For the reserve for risks in banking operation: the credit institutions, branches of foreign banks shall set up and use the reserve for risks as prescribed by the State Bank Governor of Vietnam after agreeing with the Minister of Finance.

- For reserve in price reduction of inventory, reserve for loss of the long-term investments (including securities reduction), reserve for bad debts (other than the reserve of risks in banking operation): the credit institutions and branches of foreign banks make appropriation in accordance with the general regulations applicable to the enterprises.

d) Leasing, mortgage, pledging of assets.

- Credit institutions and branches of foreign banks may lease, mortgage, pledge assets of the credit institutions and foreign bank branches under the provisions of the Civil Code, the Law on Credit Institutions and other provisions of law to ensure effectiveness, safety, and development of capital.

- For assets of financial leasing, the credit institutions and branches of foreign banks shall comply with the provisions of the law on financial leasing activity in Vietnam.

đ) For the assets rent, received mortgage, pledge, reveived for preservation, reveived for keeping on behalf of clients by the credit institutions and foreign bank branches, the credit institutions and foreign bank branches are responsible for management, preservation or use as agreed with clients in accordance with the provisions of the law.

e) Transfer or liquidation of assets.

- The transfer or liquidation of assets of the credit institutions and branches of foreign banks shall comply with the provisions of the law and the provisions of the Charter of the credit institutions and foreign bank branches.

- The credit institutions and branches of foreign banks may sell the assets to recover capital used for business purposes more effectively.

- The credit institutions and branches of foreign banks may liquidate the assets of poor or deteriorated quality; damaged assets unable to be recovered; technically obsolete assets without the need to use or used without effectiveness and unable to be sold as is; assets used beyond their use time in accordance with provisions and can not continue to be used. When liquidating assets of the credit institutions and foreign bank branches must establish liquidation Council.

- For assets required by law to make auction sale as transfer or liquidation, the credit institutions and foreign bank branches must hold the auction in accordance with the law provisions.

- The transfer or liquidation of fixed assets of the credit institutions as one member limited liability companies owned by the State, shall comply with the provisions of the Decree No.57/2012/ND-CP Article 4 of this Circular and the provisions of the law on the transfer or liquidation of assets for one-member limited liability companies owned by the State.

Article 5. Revenue management

1. Sales of the credit institutions and foreign bank branches include the revenues provided for in Article 15 of the Decree No.57/2012/ND-CP specifically:

a) Revenue from business activities, includes:

- Revenue from credit activities: revenue from interest on deposits, interest from credit granting operation, other revenues from credit operation;

- Revenue from service activities: revenue from payment services; revenue from fund services; revenue from entrustment profession, agent; revenue from provision of services to preserve assets, leasing cabinet, safe boxes, consultancy, brokerage of currency; revenue from other service fee;

- Revenue from trading foreign currencies and gold: revenue from trading foreign currencies of ready delivery; revenue from trading gold; revenue from currency derivative financial instruments;

- Revenue from interest on capital contribution;

- Revenue from exchange rate differences;

- Revenue from other business activities, including: revenue from business activities of securities (other than shares); revenue from debt trading activities; revenue from renting assets; revenue from providing card services, electronic banking; revenue from other business activities.

b) Other revenues include:

- Revenue from the transfer or liquidation of fixed assets;

- Revenue from the loans handled by risk reserve (including the debts that have been forgiven, now recovered);

- Revenue from the debts payable, but lost its debtors or unidentified its creditors recorded income increase;

- Revenue from fines of customers, money paid for compensation by customers due to breach of contract;

- Revenue from insurance compensation;

- Revenue from taxes paid is reduced, refunded;

- Revenue from returning the surplus amount from the provision for risks (amount required to set aside is lower than the numbers set aside) but not recorded cost decrease as prescribed by law for the provision for risks;

- Revenue from other derivative financial instruments;

- Other revenues.

2. Revenue recognition principle

a) For credit activities.

- Interest revenue from credit providing activities:

The credit institutions and branches of foreign banks accounting the receivable interest arising in the period into income for the debts classified as qualified debt are required to make appropriation for risks specifically as prescribed.

For the receivable interest arising in the period of the remaining debts, it is not required to account income, the credit institutions and branches of foreign banks shall monitor off-balance sheet to urge the collection; when collected, account as revenue from business.

- Deposit interest revenue: the amount of interest receivable during the period.

b) Revenue from business activities of securities (other than shares).

The credit institutions and branches of foreign banks shall account estimated revenues for the interest estimated for revenues from business activities of securities (other than shares). If the maturity of the original collection is coming, the credit institutions, branches of foreign banks shall not account estimated revenues of interest for the next period.

c) For interest revenue from contributed capital: dividends, profits distributed from capital contribution is the interest to be divided when there is resolution or decision on division.

d) For the revenues from exchange rate difference from revaluation of foreign currency and gold, make records in accordance with provisions at accounting standards and current law provisions.

đ) For the revenue from remaining activities: revenue is the entire proceeds from the sale of products, goods and provision of services generated in the period accepted to make payment by the customers after minus (-) a commercial discount amount, reducing price of goods sold and value of sold goods to be returned (if having valid documents) regardless of whether money is collected or not.

e) For the receivable revenues accounted for in income but when the maturity comes, they are not obtained, the credit institutions and branches of foreign banks shall account reduction of revenue if it is in the same accounting period or account into costs if it is not in the same accounting period and tracking off-balance sheet to urge the collection. When they are collected, then account into revenue from business activities.

3. The revenues of the credit institutions, branches of foreign banks arising in the period must have valid invoices or vouchers and must be fully accounted for in sale revenue.

Article 6. Cost management

1. Expenses of the credit institutions and foreign bank branches, include the expenses specified in Article 16 of the Decree No.57/2012/ND-CP For some expenses that the credit institutions and branches of foreign banks shall comply with the following guidelines:

a) Expenses for business

- Spending on credit activities: paying for interest on deposits, interest on loans, interest from issuance of valuable papers and other expenses for the operation of providing credit.

- Spending on business of banking services: paying for payment services; for treasury services; entrustment services, agent; telecom services for the operation of payment and other expenses.

- Spending on business of foreign currencies and gold: paying for trading foreign currency of spot delivery; paying for trading gold; paying for currency derivative financial instruments and other derivative financial instruments.

- Spending on capital contribution.

- Spending on exchange rate differences in accordance with provisions of accounting standards and the provisions of the current law.

- Expenses for other business activities, including: Expenses for business losses due to trading of securities permitted to trade under the provisions of law; paying for the purchase and sale of debts and paying for other business activities.

b) Expenses for taxes, fees and charges, including taxes, charges and fees relating to land rents (excluding corporate income tax) in accordance with the law provisions.

c) Expenses for assets

- Expenses for depreciation of fixed assets used for business activities shall comply with the regime of management, use and appropriation for depreciation of fixed assets for enterprises.

In case of purchase for deferred payment of fixed assets: the credit institutions, branches of foreign banks account for the difference between the total amount payable and fixed asset purchase price paid right in the cost according to the maturity except that the difference is included in the primary price of fixed assets (capitalization) in accordance with the provisions of accounting standards.

- Expenses for leasing fixed assets: Cost of lease of fixed assets shall comply with the lease contract. In case of making lump-sum payment for the rent of assets for many years, the rent is apportioned into the cost of doing business by the number of years of using assets. For the expenses related to the land lease that can not be deducted from the rent according to regulations, the credit institutions and branches of foreign banks apportion into the cost over time using leased land.

- Expenses for maintenance of fixed assets.

- Expenses for repair of fixed assets.

- Expenses for procurement, repair of tools and instruments.

- Expenses for asset insurance.

d) Expenses for employees in accordance with the law provisions, including the following items:

- Expenses for salaries, wages and other items of wage nature.

- Expenses for salary contribution: Paying for social insurance, health insurance, unemployment insurance, trade union fees.

- Expenses for allowances of unemployment to employees in accordance with the law for enterprises.

- Expenses for purchase of personal accident insurance.

- Expenses for shift meals. For the credit institutions to be state-owned enterprises, it shall comply with the provisions of the law on paying for shift meals for one-member limited liability companies owned by the State.

- Expenses for labor protection for those who are required personal protective equipment while working.

- Expenses for uniforms for staffs.

- Expenses on the regulations for women workers in accordance with the law provisions.

- Medical expenses including the expenses for period medical examination for employees, purchase of reserve medicine and other medical expenses under the responsibility of the enterprises as prescribed by law.

- Expenses for annual leave as prescribed by law.

- Other expenses for employees in accordance with the law provisions.

đ) Expenses for the management, instruments including the following expenses:

- Expense for travelling expenses.

- Expense for electricity, water, telephone, materials, printing paper, stationery.

- Expense for treasury, store operations.

- Expense for hiring consultants, hiring domestic or foreign experts.

- Expense for auditing.

- The commission for agents, entrusting costs must be stated in the agent contract, entrusting contract with all the reasonable and valid papers.

- Expense for the appropriation for the fund of scientific and technological development in accordance with the law provisions. The use of funds shall comply with the current regulations.

- Expense for scientific and technological research: the missing part of expense after using up the scientific and technological development fund.

- Expense for training, professional coaching as prescribed by law.

- Expense for rewarding innovations, increase of labor productivity, cost savings: by the principle in accordance with the actual effectiveness; the credit institutions and branches of foreign banks must build and publish regulations on reward and establishment of Council for initiative acceptance test.

- Expense for fire fighting and prevention.

- Expense for environmental protection.

- Expense for propaganda, advertising, marketing, promotions, conferences, reception festivities, foreign affairs and other costs according to regulations and required to have invoices or vouchers in accordance with the provisions of the Ministry of Finance, in association with the business results of the credit institutions and foreign bank branches.

- Brokerage commission costs: The expense for brokerage commissions of the credit institutions and foreign bank branches must be linked to economic efficiency brought by the brokerage. The credit institutions and branches of foreign banks based on guidelines of brokerage commission costs of the Finance Ministry, their specific conditions and characteristics to formulate Regulations on brokerage commissions expense applied uniformly and publicly in the credit institutions, branches of foreign banks. The Management Board or Council of members or General Director (Director) approves the Regulations on brokerage commissions exspense applied in their units.

Those entitled to brokerage commissions are the organizations, individuals (domestic and foreign) providing brokerage services to the credit institutions and branches of foreign banks. Brokerage commissions are not be applied to the objects as agents of the credit institutions and branches of foreign banks, the customers designated, the titles of management, employees of the credit institutions, branches of foreign banks.

The expense for brokerage commissions must be based on contract or written certification between the credit institutions and branches of foreign banks and the recipient of brokerage commission, which must contain the basic contents: the name of the commission recipient; content of spending; spending rate; payment method; implementation and end time; responsibilities of the parties.

For the brokerage expenses for asset rental (including assets foreclosed, assets used as payment for debt): Broker spending level to rent out assets of the credit institutions and foreign bank branches must not exceed 5% of all proceeds from the asset leasing brought by the brokerage during the year.

For the expenses for brokerage of selling assets mortgaged, pledged: Broker spending level to sell assets mortgaged, pledged of the credit institutions and foreign bank branches must not exceed 1% of the actual value obtained from the sale of assets through brokerage.

- Expense for protection of the agencies; expenses for national defense and security.

e) Expenses for risk prevention, preservation and insurance of deposits

- Expenses for provision for operations of the credit institutions and foreign bank branches as prescribed in item c, Clause 2, Article 4 of this Circular.

- Expense for participating in organization to preserve and insure deposits as prescribed by law.

g) Other expenses

- Expense for fees of domestic or foreign associations and industries participated in by the credit institutions and foreign bank branches according to the fees prescribed by these associations.

- Expense for the activities of Party and unions in the credit institutions and foreign bank branches (expenditures outside the budget of the Party organization, unions paid from specified sources).

- Expense for the items accounted as revenue but not collected actually and not accounted reduction of revenue.

- Expense for payable liabilities, determined as loss of creditors and accounted into income but then identified its creditors.

- Expense for the transfer and liquidation of assets (if any), including the residual value of fixed assets to be liquidated, transferred.

- Expense for fees of debt collection service to the organizations allowed performing debt collection service in accordance with the law provisions; expense for recovery of the forgiven loans, bad debt recovery costs.

- Expense for fines from administrative violations; fines and damages compensation for breach of economic contract under responsibilities of the credit institutions and foreign bank branches.

- Expense for handling the remaining asset losses after offsetted by the sources as provided for in Article 11 of the Decree No.57/2012/ND-CP.

- Expense for social work including funding for health, education, funding for disaster recovery, for charity house for the poor and other expenses in accordance with the law provisions.

- Expense for court fees, fees for execution.

- Other expenses.

2. Principle on record of expenses

a) The expenses of the credit institutions and foreign bank branches are the expenses actually incurred during the period related to business activities.

b) The expenses recorded in costs of doing business of the credit institutions and foreign bank branches must comply with the principle of matching of revenue and expenses and with sufficient lawful invoices, vouchers in accordance with law provisions.

c) For credit institutions as state-owned enterprises, it is accounted only for in the cost of the expenses to be deducted when determining the corporate income tax.

3. The credit institutions and branches of foreign banks are not included in the cost of the following items:

a) The fines for administrative violations that individuals must pay under the provisions of the law include: violation of traffic laws and violations of business registration regime, violations of the statistics, accounting regime, violations of the tax law and other administrative violations;

b) The expenses not related to the business of credit institutions and foreign bank branches;

c) Expenses without valid vouchers;

d) The items accounted as expense but not paid actually;

đ) The expenses covered by other funding sources;

e) Other unreasonable and invalid expenses.

Article 7. Accounting currency

The determination of the accounting currency shall comply with the provisions of Article 18 of the Decree No.57/2012/ND-CP.

Economic activities of the credit institutions and foreign bank branches arising in foreign currency must be converted into Vietnam dong as prescribed by law.

Article 8. Regime of accounting, auditing, reporting and financial disclosure

1. The credit institutions and branches of foreign banks performing the accounting regime in accordance with the law provisions, recording fully the original documents, updating accounting books and reflecting fully, timely, truthfully, accurately, objectively the financial, economic activities.

2. Fiscal year of the credit institutions, foreign bank branches start on January 01 and ends on December 31 of the calendar year.

3. The credit institutions and branches of foreign banks performing financial settlement, preparing and submitting financial statements to the State Bank of Vietnam, the Ministry of Finance shall be under the provisions of this Circular.

Chairman of the Management Board or the Chairman of the Council of members or the general directors (directors) of the credit institutions and branches of foreign banks are responsible for the accuracy and truthfulness of these statements.

4. Contents of financial statements

a) Report on the financial plan includes:

- Plan of fund sources and use of funds;

- Plan of income, expenses, business results and norms to pay to the State budget;

- Plan of labor and wages.

b) Financial statements include:

- System of annual financial statements, mid-year financial statements and accounting reports of the credit institutions and foreign bank’s branches as prescribed by the State Bank of Vietnam on the regime of financial reports for the credit institutions.

- Other reports include: report of changes in capital and use of funds; report of capital contribution, purchase of shares in affiliates; report of performing obligations with State budget; income report of the Management Board or Council of Members or General Director (Director), controllers, staffs; report of general indicators (according to Appendix enclosed with this Circular).

c) Results report on the audit result of annual financial statements.

d) Irregular report: At the request of the management agencies.

5. The deadline for submitting the report.

a) Report on annual financial plan must be submitted no later than November 15 of the year before the plan year.

b) The annual financial statements:

- Deadline for submission of annual financial statements is no later than 180 days for foreign credit institutions and 90 days for other credit institutions from the end of the fiscal year.

- Credit institutions and foreign bank branches shall send audited annual financial statements together with the conclusions of the independent audit organization (audit report) right after the end of the audit.

c) The mid-year financial statements

Deadline for submission of the mid-year financial statement is no later than on 30^th of first month of the next quarter.

If the last day of the time limit for submission of financial statements is holidays or weekends, the date of submission of financial statements shall be the next working day right after that date.

6. The report recipients.

a) Credit institutions as commercial banks in which the State owns 100% of the charter capital and joint-stock commercial bank in which the State owns over 50% of the charter capital shall be responsible for submitting the reports specified in Clause 4 of this Article to the State Bank of Vietnam, the Ministry of Finance.

b) The credit institutions (excluding the credit institutions specified in Point a, Clause 6 of this Article), foreign bank branchs shall send to the State Bank of Vietnam, the Ministry of Finance the reports specified in Points b, c and d, Clause 4 of this Article.

Article 9. Inspection, handling of financial violations

1. Financial inspection forms.

The financial inspection shall be performed under the following forms:

a) Periodical or irregular financial inspection.

b) Inspection by specific topic in accordance with requirements for the financial management.

2. Financial inspection agency.

a) State Bank of Vietnam shall:

- Inspect, examine, monitor comprehensively the activities of the credit institutions and branches of foreign banks, including financial activities.

- Notify the Ministry of Finance the violations, the difficulties related to the implementation of the financial management regime of the credit institutions and foreign bank branches detected during the inspection, examination, monitoring for the Ministry of Finance to coordinate in handling and improving policies.

b) Ministry of Finance shall:

- Perform financial inspection under the provisions of the law on financial inspection.

- Examine the issues related to financial management, compliance with financial regulations of the credit institutions and foreign bank branches in order to improve mechanisms for financial management of the credit institutions and foreign bank branches.

- Notify the State Bank of Vietnam the inspection and examination results for coordination in handling.

3. Handling of financial violations.

Credit institutions and foreign bank branches violating financial regime, the financial report regime of the State shall be sanctioned according to the law provisions.

Article 10. Responsibility of the management agencies

1. The Ministry of Finance, the State Bank of Vietnam shall implement their responsibilities under the provisions of Article 34, Article 35 of the Decree No.57/2012/ND-CP.

2. Quarterly, annually the State Bank of Vietnam informs the Ministry of Finance the financial situation of the credit institutions, foreign bank branches under the provisions of Clause 1, Article 35 of the Decree No.57/2012/ND-CP specifically with the following indicators (grouping by type of activity):

a) The number of the credit institutions, foreign bank branches.

b) The total charter capital, equity, assets, total gross loan, wholesale financing, nonperforming loan ratio and the safe ratio in operation of the credit institution, foreign bank branches.

c) Total profit (loss) and the number of credit institutions and foreign bank branches having profit (got loss).

d) Number remitted to the State budget of the credit institutions and foreign bank branches (classified by the types of taxes and fees).

đ) Violations of the financial regime of the credit institutions and foreign bank branches detected during the inspection and supervision.

e) Financial situation, performance results of the credit institutions in which the State holds more than 50% of the charter capital.

g) The other related indicators, contents.

Chapter III

IMPLEMENTATION

Article 11. Implementation provisions

1. This Circular takes effect from February 25, 2013 and shall be applicable from the 2013 fiscal year.

2. This Circular replaces the Circular No.12/2006/TT-BTC dated February 21, 2006 of the Ministry of Finance guiding the implementation of the Decree No.146/2005/ND-CP dated 23/11/2005 of the government on the financial regime to the credit institutions.

3. In the implementation course, any difficult issue arises, the concerned agencies, individuals should reflect to the Ministry of Finance for consideration and settlement./.

APPENDIX

(Issued together with the Circular No.05/2013/TT-BTC dated 09/01/2013 of the Ministry of Finance)

Appendix 1. The changes of funds and the use of funds

Unit: Million dong

Appendix 2. Capital investment contribution, shares purchase in member units

Appendix 3. The status of performing obligations to State Budget

Unit: Million dong

Appendix 4. Income situation of the Board of Directors or Board Member or the General Director (Director), controllers, staff, employees

Unit: Million VND

1. Income of the Board of Directors or Board Member or the General Director (Director)

2. Income of controllers

3. Income of staff, employees

Credit institutions and foreign bank branches make the income reports of the Board of Directors or Board member or General Director (Director), controllers, staff, employees according to accounting year period.

Appendix 5. General indicators

Unit: million dong/%