Circular 16/2023/TT-BTC amend Circular 36/2021/TT-BTC state capital in enterprises

CIRCULAR

Amending and supplementing a number of articles of the Ministry of Finance’s Circular No. 36/2021/TT-BTC dated May 26, 2021, guiding a number of contents regarding investment of state capital in enterprises and management and use of capital and assets at enterprises as prescribed in Decree No. 91/2015/ND-CP dated October 13, 2015; Decree No. 32/2018/ND-CP dated March 08, 2018; Decree No. 121/2020/ND-CP dated October 09, 2020, and Decree No. 140/2020/ND-CP dated November 30, 2020, of the Government

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Pursuant to the Law on the Management and Use of State Capital Invested in Production and Business at Enterprises dated November 26, 2014;

Pursuant to the Government's Decree No. 91/2015/ND-CP dated October 13, 2015, on investment of state capital in enterprises and management and use of capital and assets at enterprises;

Pursuant to the Government’s Decree No. 32/2018/ND-CP dated March 08, 2018, amending and supplementing a number of articles of the Government’s Decree No. 91/2015/ND-CP dated October 13, 2015, on investment of state capital in enterprises and management and use of capital and assets at enterprises;

Pursuant to the Government's Decree No. 121/2020/ND-CP dated October 09, 2020, amending and supplementing a number of articles of the Government’s Decree No. 91/2015/ND-CP dated October 13, 2015, on investment of state capital in enterprises and management and use of capital and assets at enterprises, which is amended and supplemented by Clause 5, Article 1 of the Government’s Decree No. 32/2018/ND-CP dated March 08, 2018, amending and supplementing a number of articles of the Government’s Decree No. 91/2015/ND-CP;

Pursuant to the Government’s Decree No. 140/2020/ND-CP dated November 30, 2020, amending and supplementing a number of articles of the Government’s Decree No. 126/2017/ND-CP dated November 16, 2017, on transformation of state enterprises and single-member limited liability companies with 100% state enterprise-invested charter capital into joint-stock companies; the Government’s Decree No. 91/2015/ND-CP dated October 13, 2015, on investment of state capital in enterprises and management and use of capital and assets at enterprises and the Government’s Decree No. 32/2018/NDCP dated March 08, 2018, amending and supplementing a number of articles of the Decree No. 91/2015/ND-CP;

Pursuant to the Government’s Decree No. 87/2017/ND-CP dated July 26, 2017, defining the functions, tasks, powers and organizational structure of the Ministry of Finance;

At the proposal of the Director General of the Department of Corporate Finance;

The Minister of Finance hereby promulgates the Circular amending and supplementing a number of articles of the Ministry of Finance’s Circular No. 36/2021/TT-BTC dated May 26, 2021, guiding a number of contents regarding investment of state capital in enterprises and management and use of capital and assets at enterprises as prescribed in Decree No. 91/2015/ND-CP dated October 13, 2015; Decree No. 32/2018/ND-CP dated March 08, 2018; Decree No. 121/2020/ND-CP dated October 09, 2020, and Decree No. 140/2020/ND-CP dated November 30, 2020, of the Government (hereinafter referred to as Circular No. 36/2021/TT-BTC).

Article 1. Amending and supplementing a number of articles of Circular No. 36/2021/TT-BTC as follows:

1. To supplement Point b Clause 1 Article 2 as follows:

“b. For enterprises that are operating, the adjustment of charter capital shall comply with Article 11 of the Government's Decree No. 91/2015/ND-CP, Clause 4 Article 1 of the Government's Decree No. 32/2018/ND-CP and Clause 7 Article 2 of the Government's Decree No. 140/2020/ND-CP.

For enterprises that do not need to supplement charter capital or do not prepare a plan to determine charter capital and charter capital supplement investment source specified in Clause 7 Article 2 of Decree No. 140/2020/ND-CP, the owner-representing agencies shall be responsible for reviewing, deciding and directing the enterprises to pay the difference between the equity and the charter capital into the state budget, the remittance of such difference shall not affect the solvency and debt repayment obligations of the enterprises. Within 10 days after the owner-representing agencies make decisions, the enterprises shall be responsible for paying the difference between the enterprises’ equity and charter capital into the state budget, and at the same time, account the reduction according to each corresponding capital component of the equity.”

2. To amend and supplement a number of clauses of Article 3 as follows:

a) To amend and supplement Clause 1 as follows:

“1. The principles, competent to decide and methods of transfer of state capital invested in joint-stock companies and limited liability companies with two or more members shall comply with Article 38 of Decree No. 91/2015/NDCP; Clauses 15 and 16 Article 1 of Decree No. 32/2018/ND-CP; Clauses 18 and 19 Article 2 and Clauses 4 and 5 Article 5 of Decree No. 140/2020/NDCP.

The valuation organization shall, based on aforesaid regulations, business valuation standards promulgated by the Ministry of Finance, valuation law and other relevant laws, counsel the competent agency to consider and decide the reserve price of capital transfer, in which the brand value (including cultural and historical value) in the enterprise value shall be determined according to the enterprise valuation methods as prescribed.

When transferring capital to another organization or individual other than members of a limited liability company with two or more members (after the members of the company do not purchase or do not buy all of the capital), the owner-representing agency shall direct the representative of the state capital portion in a limited liability company with two or more members to comply with Article 38 of Decree No. 91/2015/ND-CP; Clause 15 and Clause 16 Article 1 of Decree No. 32/2018/ND-CP; Clause 18, Clause 19 Article 2 and Clauses 4 and 5 Article 5 of Decree No. 140/2020/ND-CP. The owner-representing agency shall decide on applying the capital transfer method in line with the enterprise’s charter to ensure divestment of all the capital to be transferred and not to exceed the maximum number of members in accordance with the Law on Enterprise.”

b) To amend and supplement Clause 2 as follows:

“2. The principles, competent to decide and methods of transfer of outside-invested capital of enterprises of which the State holds 100% of charter capital shall comply with Article 29 of Decree No. 91/2015/ND-CP; Clauses 12 and 13 Article 1 of Decree No. 32/2018/ND-CP; Clauses 15 and 16 Article 2 and Clauses 2 and 3 Article 5 of Decree No. 140/2020/ND-CP.

The valuation organization shall, based on aforesaid regulations, business valuation standards promulgated by the Ministry of Finance, valuation law and other relevant laws, counsel the competent agency to consider and decide the reserve price of capital transfer, in which the brand value (including cultural and historical value) in the enterprise value shall be determined according to the enterprise valuation methods as prescribed.

When transferring capital to another organization or individual other than members of a limited liability company with two or more members (after the members of the company do not purchase or do not buy all of the capital), the enterprise of which the State holds 100% of charter capital shall comply with Clause 13 Article 1 of Decree No. 32/2018/ND-CP, Clauses 15 and 16 Article 2, Clauses 2 and 3 Article 5 of Decree No. 140/2020/ND-CP. The enterprise shall decide on applying the transfer method in line with the enterprise’s charter to ensure divestment of all the capital to be transferred and not to exceed the maximum number of members in accordance with the Law on Enterprise.”

c) To amend and supplement Clause 5 as follows:

“5. To issue together with this Circular the Regulation Template on the capital transfer by enterprises of which the State holds 100% of charter capital, transfer of state capital invested in joint-stock companies and limited liability companies with two or more members (Appendix No. 01 herewith).  Based on the Regulation Template to this Circular, specific status of the units with capital contributions and capital portions to be transferred, the auction organization shall be responsible for promulgating the regulation on auction of shares/capital contributions and related forms for the organization of auction after obtaining the owner-representing agency’s consents, for the transfer of state capital portion, or opinions from enterprises of which the State holds 100% of charter capital, for the transfer of an enterprise's capital portion in another enterprise.

For the State Capital Investment Corporation, on the basis of the Regulation Template provided in this Circular and the mechanism for selling state capital specified in Decree No. 140/2020/ND-CP and the Government's Decree on the functions, tasks and operation mechanism of the State Capital Investment Corporation, the Corporation's Members' Council shall be responsible for formulating and promulgating the Regulation Template for selling capital of the Corporation after obtaining written opinions of the owner-representing agency”.

3. To add Article 7a as follows:

“Article 7a. Distribution of profits for joint-stock companies or limited liability companies with two or more members with state capitals or shares

State enterprises shall distribute their profits under Clause 17 Article 2 of the Government's Decree No. 140/2020/ND-CP dated November 30, 2020. In case enterprises operate under the parent-subsidiary model, the parent’s separate financial statements shall be used to determine after-tax-profits for distribution”.

4. To amend and supplement a number of clauses of Article 9 as follows:

a) To amend Point a Clause 1 as follows:

“a) Periodical reports include:

- Financial statements, forms and deadlines for submission and report-receiving bodies shall comply with the Ministry of Finance’s Circular No. 200/2014/TT-BTC dated December 22, 2014, guiding the enterprise accounting regime, Vietnamese Accounting Standard and the Circular guiding the implementation of accounting standard promulgated by Ministry of Finance and amending and supplementing documents (if any).

- Reports on a number of off-balance sheet items:

Upon making annual or quarterly financial statements, the enterprise shall prepare reports on a number of off-balance sheet items for such statements. Deadlines for submission and report-receiving bodies of such reports are the same with those of the enterprise’s financial statements.

The enterprise shall make the forms of such reports in accordance with Appendix No. 03 “Report on a number of off-balance sheet items” to this Circular.  In which: Form No. 01 - Report on a number of off-balance sheet items; Form No. 02 - Report on a number of off-balance sheet items - Consolidated report of enterprise operating under the parent-subsidiary model”.

b) To amend Clause 4 as follows:

“4. The owner-representing agencies, enterprises and representatives of the State capital portions at enterprises shall send such reports and statements to the report-receiving bodies via post office and by accessing the financial management information system at the website: http://taichinhdoanhnghiep.mof.gov.vn in accordance with Article 8, and Clauses 1, 2 and 3 of this Article. Accessing account and password of the owner-representing agency, enterprise or representative of the State capital portions at enterprise as follows:

a) For the owner-representing agency: An attached unit shall be assigned to appoint an individual to be in charge of such account and password provided by the Ministry of Finance.

b) For the enterprise: Accessing account shall be the enterprise’s tax identification number and the password shall be sent by the system to the enterprise’s email address that has been registered with the Ministry of Finance.

c) For the representative of the State capital portions at enterprise: Accessing account shall be the enterprise’s tax identification number and password shall be sent by the system to the representative’s email address that has been registered with the Ministry of Finance”.

5. To amend and supplement Appendix No. 01 to Circular No. 36/2021/TT-BTC as follows:

a) To add Clause 18 Article 2 as follows:

“18. Date of announcing the auction result is the date on which the information about the auction result is announced at one of the places specified in Clause 1 Article 16 of this Regulation”.

b) To amend and supplement Point c Clause 3 Article 14 as follows:

“c) In case of competitive offering

- For an ordinary competitive offering, the result shall be determined similar to that of an ordinary auction specified at Point a Clause 3 of this Article.

- For a competitive offering of shares/contributing shares, the result shall be determined similarly to that of the auction of lots of shares/contributions specified at Point b Clause 3 of this Article.

- In case of unsuccessful competitive offering, the auction organization shall notify in writing the owner of the transferred capital portion of the result of the competitive offering to switch to another method of transfer as prescribed”.

6. To replace Appendix No. 03 to Circular No. 36/2021/TT-BTC with Appendix to this Circular.

Article 2. Effect

1. This Circular takes effect from May 08, 2023.

2. Any difficulty arising in the course of implementation should be promptly reported to the Ministry of Finance for consideration, supplementation and amendment./.

* All Appendices are not translated herein.