Thông tư 219/2015/TT-BTC

Circular No. 219/2015/TT-BTC dated December 31, 2015, guidelines for a number of contents of Decree No. 91/2015/ND-CP regrading the investment of state capital in enterprises, use and management of capital and assets in enterprises

Nội dung toàn văn Circular No. 219/2015/TT-BTC guidelines investment of state capital in enterprises management of capital


MINISTRY OF FINANCE
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.: 219/2015/TT-BTC

Ha Noi, on December 31, 2015

 

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;

Chapter I

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.

b) In case the investment of charter capital in enterprise according to the rate approved in the scheme of enterprise establishment is devided into several times, at each stage, the enterprise shall amend the actually-contributed charter capital in its business registration certificate in accordance with the Enterprise Law in 2014.

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:

1. The state-owned enterprise must establish and promulgate internal regulations for management and use of its assets of various kinds; In which, the combination of each managing department in enterprise and liability of each department or individual for damage or loss of assets to the enterprise must be clearly determined.

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.

Article 6. External transfer of a state-owned enterprise’s capital

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.

2. Transfer of state capital at a joint-stock company:

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;

d) The stocktaking is required according to the state policies

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.

2. Grounds for building up the reward and welfare fund for enterprise's staffs and reward dunds for enterprise’s managers and comptrollers are determined as follows:

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

The enterprise must prepare and send reports (periodical or unscheduled reports) to the representative agency of state capital's owner and state managing authority in accordance with Article 35 of the Decree No. 91/2015/ND-CP.

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.

d) Reports on enterprise’s restructuring situation

 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.

The enterprise only sends its financial statements and reports on a number of off-balance sheet items of the year and those of 6 months to report-receiving bodies by means of accessing the the corporate finanacial management information system.

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.

Any difficulties arising in the course of implementation should be promptly reported to the Ministry of Finance for study and admendment./.

 

 

PP. MINISTER
DEPUTY MINISTER




Tran Van Hieu

 

 


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