Thông tư 64/2001/TT-BTC

CIRCULAR

GUIDING THE IMPLEMENTATION OF THE REGULATION ON MANAGEMENT OF THE STATE CAPITAL AT OTHER ENTERPRISES

In furtherance of the Government’s Decree No.73/2000/ND-CP of December 6, 2000 promulgating the Regulation on management of the State capital at other enterprises, the Finance Ministry hereby guides the implementation of the said Regulation as follows:

I. THE STATE CAPITAL AT OTHER ENTERPRISES INCLUDES

- The capital amounts stipulated in Article 3 of the Regulation on management of the State capital at other enterprises, issued together with the Government’s Decree No.73/2000/ND-CP of December 6, 2000 (hereafter called Regulation attached to Decree No.73/2000/ND-CP for short);

- The reduced and exempted enterprise income tax amounts, which are brought about by the State’s preferential investment policy and retained at enterprises to increase the State capital proportion therein;

- 30% of the value of equity capital remitted by laborers upon the transfer of equities within the enterprise, which is assigned to the laborers collective according to the provisions at Point 5, Article 10, Chapter II of the Government’s Decree No.103/1999/ND-CP of September 10, 1999 on the assignment, sale, business contracting and lease of State enterprises;

- The State’s additional investments in enterprises.

II. RIGHTS AND OBLIGATIONS OF THE REPRESENTATIVES AND DIRECT MANAGERS OF THE STATE CAPITAL AT OTHER ENTERPRISES

The State shall manage its capital at other enterprises through its representatives and direct managers:

1. For the representatives of the State capital: Their rights and obligations shall be effected according to the provisions in Articles 6, 7 and 8 of the Regulation on management of the State capital at other enterprises, issued together with the Government’s Decree No.73/2000/ND-CP of December 6, 2000.

2. For the direct managers of the State capital:

2.1. The representatives shall appoint the direct managers of the State capital at other enterprises in the following cases:

a/ The State invests by contributing capital, property, land rentals or land use right value to joint-venture enterprises (domestic and overseas) and limited liability companies.

b/ The State holds dominant stake at joint-stock companies (concretely, the State’s shares represent more than 50% of the total shares of an enterprise or are equal to or twice as many as shares of the biggest shareholder in the enterprise).

In cases where the State’s capital contributed to a joint-stock company fails to reach the above-mentioned dominant percentage but the investment level in the company is high, if deeming it necessary for the management and supervision requirements, the representative may consider and decide to appoint a direct manager. For other cases, the representative may not appoint a direct manager but must organize the work so as to ensure the monitoring of the State capital amount already invested in the enterprise as well as the amount of profit generated therefrom, and assign people to exercise the shareholders rights according to the charter of the enterprise.

2.2. In cases where the representative of the State capital is the Finance Ministry as specified at Point 1, Article 6 of the Regulation attached to Decree No.73/2000/ND-CP the Finance Ministry shall authorize the heads of the ministries, economic-technical branches or agencies, that have issued the enterprise establishment decisions, to appoint the direct managers; after obtaining written consents from the Finance Ministry, the heads of the above-mentioned agencies shall decide on the appointment of the direct managers of the State capital at other enterprises.

2.3. Basing him/herself on the investment capital amount, the management and supervision requirements as well as the enterprise’s charter, a representative may appoint 1 or 2 direct managers of the State capital at another enterprise, decide on the working regime and specify the responsibility of the direct manager(s). Where 2 direct managers are appointed, they must assign among themselves a person to take the prime responsibility.

- A person already assigned to directly manage an enterprise on the full-time basis shall not be appointed to work as the part-time direct manager at another enterprise.

- The direct managers shall be selected from the economic-technical branch management agencies (ministries, branch-managing provincial/municipal services); the financial management agencies (the Enterprise Finance Department, the provincial/municipal Finance-Pricing Services); the enterprises superior bodies (corporations, companies), or from the very enterprises that have contributed capital to other enterprises. The direct managers participating in the enterprises control boards must have professional qualifications regarding the enterprise finance management.

Cases of appointing the enterprises representatives to work as the direct managers at other enterprises shall have to comply with the provisions in Clause 1, Article 50 of the Law on Enterprise Bankruptcy.

2.4. The criteria for the direct managers shall comply with Article 11 of the Regulation issued together with Decree No.73/2000/ND-CP The direct managers must neither contribute, lend capital to nor sign trading contracts with, enterprises having the State capital under their direct management (except for subjects entitled to purchase equities for the first time from equitized State enterprises according to the provisions of Decision No.202/HDBT of June 8, 1992 of the chairman of the Council of Ministers, now the Prime Minister, regarding the experimental transformation of a number of State enterprises into joint-stock companies; the Government’s Decree No.28/CP of May 7, 1996 on the transformation of a number of State enterprises into joint-stock companies; and the Government’s Decree No.44/1998/ND-CP of June 29, 1998 on the transformation of State enterprises into joint-stock companies).

III. REPORTING REGIME AND NORMS:

1. For the direct managers

1.1. Basing themselves on the financial reports and other reports of enterprises, the direct managers shall have to compile enterprise dossiers to monitor the enterprises and perform their management tasks as prescribed.

The direct managers shall have to make reports (quarterly and annual) on a number of financial norms according to the set form, that include analysis and evaluation of the situation on capital management and use at the enterprises, their solvency, business results and profit sharing; and propose measures to remove difficulties and obstacles in order to efficiently use the State capital invested at other enterprises.

1.2. Places for receipt of reports and reporting time limits

Quarterly (by the 30th of the first month of the following quarter at the latest) and annually (by April 30 of the following year at the latest), the direct managers shall have to send reports with all the above-mentioned contents to the representatives. In cases where the direct managers are appointed according to the provisions at Clause 1, Article 6 of the Regulation attached to Decree No.73/2000/ND-CP they shall send the reports to the Finance Ministry, and concurrently to the ministries or economic-technical branches that have issued decisions to appoint them the direct managers of the State capital at other enterprises.

1.3. In addition to the above-mentioned periodical reports, the direct managers shall have to send extraordinary reports on the situation of enterprises to the representatives in the following cases:

- The representatives so request;

- There appear big issues affecting the business results of enterprises that require opinions of the representatives.

1.4. In cases where the direct managers are not appointed, the representatives shall have to assign people to monitor and report on the above-mentioned contents.

2. For the representatives:

Basing themselves on the financial reports of other enterprises and periodical reports of the direct managers, the representatives shall have the responsibility:

- To exercise their rights and perform their obligations according to the provisions in Section II of the Regulation attached to Decree No.73/2000/ND-CP;

- Biannually and annually, to sum up the norms reported by the direct managers according to each type of enterprises with State-contributed capital: foreign-invested enterprises, joint-stock companies, limited liability companies...Analyze and make reports on the enterprises� financial situation strictly according to the contents stipulated at Point 2, Article 8 of the Regulation attached to Decree No.73/2000/ND-CP;

- To send their reports to the Finance Ministry (the Enterprise Finance Department) by July 31 at the latest, for biannual reports, and by May 31 of the following year, for annual reports. For the representatives defined at Clause 3, Article 6 of the Regulation attached to Decree No.73/2000/ND-CP they must concurrently send the reports to the agencies that have decided the establishment of State enterprises with capital invested in other enterprises.

In addition to the above-mentioned reports, the representatives shall have to make other extraordinary reports at the request of the Finance Ministry in order to meet the State financial management requirements.

IV. HANDLING OF DIVIDED PROFITS AND CAPITAL RETRIEVED FROM OTHER ENTERPRISES

The handling of divided profits and the retrieval of State investment capital from other enterprises shall be effected as follows:

1. Where the Finance Ministry or the People’s Committee of a province or centrally-run city is the representative:

- Other enterprises shall have to remit to the Fund for reorganization and equitization of the centrally- or locally-run State enterprises according to the provisions of the Prime Minister’s Decision No.177/1999/QD-TTg of August 30, 1999 and the Finance Minister’s Decision No.95/2000/QD-BTC of June 9, 2000, the following amounts:

1.1. The amounts of profit shared from other enterprises;

1.2. The amount of capital retrieved upon the decision to reduce the State capital at other enterprises or upon the dissolution or bankruptcy of enterprises;

1.3. The money amount that had been lent to laborers to buy equities upon the equitization of State enterprises, now retrieved;

1.4. The retrieved value of equities divided to laborers in enterprises so that the latter may enjoy dividends therefrom and equities sold on credit to poor laborers in enterprises.

The direct managers of the State capital at other enterprises shall have to urge enterprises to remit in time the above-mentioned amounts.

- Based on the proposals of other enterprises having the State capital and the direct managers of the State capital at such enterprises, the use of the divided profits to increase the State capital at other enterprises shall be considered and decided by the Finance Minister after the heads of the economic-technical branch management agencies give their opinions (if the Finance Ministry is the representative), or by the president of the People’s Committee of the province or centrally-run city (if the People’s Committee of the province or centrally-run city is the representative).

2. In cases where the Managing Boards (for State enterprises with Managing Boards) or the enterprise directors, for independent enterprises without Managing Boards (referred collectively to as State enterprises) are the representatives:

- Other enterprises shall have to remit to the State enterprises (being the representatives of the capital contributed to other enterprises) the following amounts:

2.1. The profits shared from other enterprises;

2.2. The differences from the sale or retrieval of the State capital (upon deciding on the sale or reduction of the State capital at other enterprises).

2.3. The capital amount retrieved upon the decision on reduction of the State capital at other enterprises or upon the dissolution or bankruptcy of enterprises.

2.4. The money amount that had been lent to laborers to buy equities upon equitization of State enterprises, now retrieved.

2.5. The retrieved value of equities that had been divided to laborers within enterprises so that the latter may enjoy dividends therefrom and equities sold on credit to poor laborers within enterprises.

The divided profits; the price differences from the sale or retrieval of capital stipulated at Points 2.1. and 2.2. of this Section (after subtracting the sale expenses) shall be accounted in the business results.

In case of capital retrieval stipulated at Points 2.3, 2.4 and 2.5 of this Section, the difference resulting from the decrease of initial investment capital must be accounted by State enterprises into their business results.

The direct managers of the State capital at other enterprises shall have to urge the enterprises to remit in time the above-mentioned amounts.

- The use of the divided profits to increase the State capital at other enterprises shall be decided by the Managing Boards (for State enterprises with Managing Boards) or by enterprise directors (for State enterprises without Managing Boards), after obtaining the opinions of the agencies that have decided on the establishment of enterprises.

V. IMPLEMENTATION PROVISIONS

This Circular takes effect as from the effective date of the Government’s Decree No.73/2000/ND-CP of December 6, 2000. The earlier provisions contrary to this Circular are hereby annulled.

In the course of implementation, if any problem arises, it should be promptly reported to the Finance Ministry for study and settlement.