CIRCULAR

AMENDING AND SUPPLEMENTING CERTAIN ARTICLES OF CIRCULAR NO. 36/2021/TT-BTC DATED MAY 26, 2021 OF MINISTRY OF FINANCE, PROVIDING INSTRUCTIONS ABOUT INVESTMENT OF STATE CAPITAL IN ENTERPRISES, MANAGEMENT AND USE OF CAPITAL AND ASSETS AT ENTERPRISES PRESCRIBED IN DECREE NO. 91/2015/ND-CP DATED OCTOBER 13, 2015; DECREE NO. 32/2018/ND-CP DATED MARCH 8, 2018; DECREE NO. 121/2020/ND-CP DATED OCTOBER 9, 2020; AND DECREE NO. 140/2020/ND-CP DATED NOVEMBER 30, 2020 OF THE GOVERNMENT

Pursuant to the Law on Management and Use of State Capital Invested in Production and Business Activities of 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, management and use of capital and assets at enterprises;

Pursuant to the Government’s Decree No. 32/2018/ND-CP dated March 8, 2018 on amendments and supplements to several Articles of the Decree No. 91/2015/ND-CP dated October 13, 2015 on investment of state capital in enterprises, management and use of state capital and assets at enterprises;

Pursuant to the Government’s Decree No. 121/2020/ND-CP dated October 9, 2020 on amendments and supplements to clause 2 of Article 12 in the Government’s Decree No. 91/2015/ND-CP dated October 13, 2015 on investment of state capital in enterprises, management and use of state capital and assets at enterprises that is amended or supplemented in clause 5 of Article 1 of the Government’s Decree No. 32/2018/ND-CP dated March 8, 2018 on amendments and supplements to several Articles of the Decree No. 91/2015/ND-CP;

Pursuant to the Government’s Decree No.140/2020/ND-CP dated November 30, 2020, amending and supplementing several Articles of the Government’s Decree No. 126/2017/ND-CP dated November 16, 2017, regarding transformation of state enterprises and single-member limited liability companies of which 100% of charter capital is held by state enterprises into joint-stock companies; the Government’s Decree No. 91/2015/ND-CP dated October 13, 2015, regarding investment of state capital in enterprises and management, use of capital and assets at enterprises and the Government's Decree No. 32/2018/ND-CP dated March 8, 2018, prescribing amendments and supplements to several 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;

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The Minister of Finance herein promulgates the Circular on amendments and supplements to certain Articles of the Circular No. 36/2021/TT-BTC dated May 26, 2021 of the Ministry of Finance, providing instructions about investment of state capital in enterprises, management and use of capital and assets at enterprises prescribed in the Decree No. 91/2015/ND-CP dated October 13, 2015; the Decree No. 32/2018/ND-CP dated March 8, 2018; the Decree No. 121/2020/ND-CP dated October 9, 2020; and the 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 certain Articles of the Circular No. 36/2021/TT-BTC as follows:

1. Amending point b of clause 1 of Article 2 as follows:

 “b. For active enterprises, the adjustment of charter capital shall be subject to the regulatory provisions of Article 11 of the Decree No. 91/2015/ND-CP, clause 4 of Article 1 in the Decree No. 32/2018/ND-CP, and clause 7 of Article 2 in the Decree No. 140/2020/ND-CP of the Government.

For any enterprise that neither requires any addition to its charter capital nor prepares a plan for determination of its charter capital and additional investments in its charter capital specified in clause 7 of Article 2 in the Decree No. 140/2020/ND-CP, its owner's representative agency shall be responsible for checking, deciding and directing it to make payment of the difference between equity and charter capital to the state budget on condition that such payment does not affect its solvency and debt repayment obligations. Within 10 days from the day on which its owner’s representative agency issues a decision, it shall be responsible for remitting that difference between equity and charter capital into the state budget and, at the same time, accounting for reduction in paid-in capital according to current regulations and, at the same time, accounting for reduction in corresponding components of its equity”.

2. Amending and supplementing Article 3 as follows:

a) Amending and supplementing clause 1 as follows:

“1. Rules and authority of making decisions on and method of transfer of state capital at joint stock companies or multiple-member limited liability companies shall be subject to Article 38 of the Decree No. 91/2015/ND-CP; clause 15 and 16 of Article 1 in the Decree No. 32/2018/ND-CP; clause 18 and 19 of Article 2, and clause 4 and 5 of Article 5 in the Decree No. 140/2020/ND-CP.

According to the aforesaid regulations; regulations laid down in the Standards of Business Valuation issued by the Ministry of Finance; regulations of laws on valuation and other relevant laws, the organization having competence in business valuation of an enterprise shall counsel a competent authority to consider setting the starting price applied to transfer of shares of that enterprise, including the (cultural and historical) value of its brand constituting its business value which is determined according to the legal business valuation methods.

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b) Amending and supplementing clause 2 as follows:

“2. Rules, authority of making a decision on and method of transfer of inter-corporate investment of the enterprise of which charter capital is wholly held by the State shall be subject to Article 29 in the Decree No. 91/2015/ND-CP; clause 12 and 13 of Article 1 in the Decree No. 32/2018/ND-CP; clause 15 and 16 of Article 2, and clause 2 and 3 of Article 5 in the Decree No. 140/2020/ND-CP.

According to the aforesaid regulations; regulations laid down in the Standards of Business Valuation issued by the Ministry of Finance; regulations of laws on valuation and other relevant laws, the organization having competence in business valuation of an enterprise shall counsel a competent authority to consider setting the starting price applied to transfer of shares of that enterprise, including the (cultural and historical) value of its brand constituting its business value which is determined according to the legal business valuation methods.

When transferring shares to another organization or individual that is not a member of a multiple-member limited liability company (after the company’s members refuse to purchase any or buy all of these shares), the enterprise of which charter capital is wholly held by the state shall comply with the provisions of clause 13, Article 1 of Decree No. 32/2018/ND-CP, clause 15 and 16 of Article 2, clause 2 and 3 of Article 5 of Decree No. 140/2020/ND-CP. The enterprise shall decide to apply the capital transfer method in accordance with its Charter in order to ensure all shares to be transferred are divested and the maximum number of members stipulated in the Law on Enterprises does not exceed”.

c) Amending and supplementing clause 5 as follows:

“5. The sample Regulations on transfer of capital of enterprises of which 100% of charter capital is held by the State, state capital invested in joint-stock companies or multiple-member limited liability companies shall be attached hereto (Appendix No. 01). Based on the sample Regulations annexed hereto, the actual condition of each enterprise whose paid-in capital and shares need to be transferred, the auctioneer shall be responsible for issuing regulations on auctioning of shares/paid-in capital, related sample documents used for holding auctions after receipt of consent for transfer of portion of state capital from the owner's representative agency, or opinions from the enterprise whose charter capital is wholly held by the State on transfer of portion of its inter-corporate investment in another enterprise.

As regards the State Capital Investment Corporation, according to the sample Regulations laid down in this Circular and the mechanism for selling state capital specified in the Government’s Decree No. 140/2020/ND-CP and the Government's Decree on functions, tasks and operation mechanism of the State Capital Investment Corporation, its Members' Board shall be responsible for formulating and promulgating the sample Regulations on sale of its capital shares after receipt of the written consent from its owner’s representative agency.

3. Article 7a shall be added as follows:

“Article 7a. Distribution of profits by joint-stock companies and multiple-member limited liability companies which keep shares or contributed capital of the State

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4. Amending certain clauses of Article 9 as follows:

a) Amending point a of clause 1 as follows:

“a) A periodic report shall be defined as follows:

- Regarding the financial statement, format, deadline for submission and place of receipt of the statement, the reporting enterprise shall follow the instructions given in the Circular No. 200/2014/TT-BTC dated December 22, 2014 of the Ministry of Finance, providing guidance on the corporate accounting regime, the Vietnam’s accounting standards; the Circular providing instructions about implementation of accounting standards that are promulgated by the Ministry of Finance; and other documents stating amendments or supplements (if any).

- Reporting of several off-balance sheet accounts:

When preparing a quarterly and yearly financial statement, the reporting enterprise shall prepare a report containing several off-balance sheet accounts in its quarterly and yearly financial statement. Submission deadline and place of receipt of the statement are the same as those of the financial statement of the reporting enterprise.

The report form intended for the reporting enterprise is given in the Appendix No. 03 "Report on several off-balance sheet accounts" hereto. This includes the Form No. 01 – Reporting of off-balance sheet accounts; the Form No. 02 – Reporting of several off-balance sheet accounts - Consolidated report of the enterprise operating in the parent-subsidiary model”.

b) Amending clause 4 as follows:

 “4. The owner’s representative agency, the enterprise, the agent of state capital shares invested in the enterprise shall submit a report to the receiving authority by mail or by visiting the corporate financial management information system on the website http:// taichinhdoanhnghiep.mof.gov.vn according to the regulations laid down in Article 8 and clause 1, 2 and 3 of this Article. The account and password used for signing in the account of the owner’s representative agency, enterprise or agent of state capital shares invested in the enterprise shall be subject to the following regulations:

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b) The enterprise’s account is TIN of that enterprise and its password shall be sent to the enterprise's email registered with the Ministry of Finance.

c) The account of the agent of state capital shares invested in the enterprise is TIN of that enterprise and the password shall be sent to the email of the agent of state capital shares invested in the enterprise that has been registered with the Ministry of Finance”.

5. Amending and supplementing Appendix 01 to the Circular No. 36/2021/TT-BTC as follows:

a) Adding clause 18 to Article 2 as follows:

“18. Date of announcement of auction results refers to the day on which the results of an auction are announced at one of the places specified in clause 1 of Article 16 herein”.

b) Amending and supplementing point c of clause 3 of Article 14 as follows:

“c) In case of a competitive bidding

- The results of an ordinary competitive bidding are determined in the similar way to those of an ordinary auction as defined in point a of clause 3 of this Article.

- The results of a competitive bidding of lots of shares/contributed capital portions are determined in the similar way to those of an auction of shares/contributed capital portions as defined in point b of clause 3 of this Article.

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6. Replacing Appendix 3 to the Circular No. 36/2021/TT-BTC with Appendix to this Circular.

Article 2. Effect

1. This Circular shall enter into force as from May 8, 2023.

2. In the course of implementation hereof, if there is any difficulty that arises, the Ministry of Finance should be promptly informed for its review and decision on any amendment or supplement./.

PP. MINISTER
DEPUTY MINISTER




Cao Anh Tuan

Thông tư 16/2023/TT-BTC sửa đổi Thông tư 36/2021/TT-BTC hướng dẫn nội dung về đầu tư vốn Nhà nước vào doanh nghiệp và quản lý, sử dụng vốn, tài sản tại doanh nghiệp quy định tại Nghị định 91/2015/NĐ-CP; 32/2018/NĐ-CP; 121/2020/NĐ-CP và 140/2020/NĐ-CP do Bộ trưởng Bộ Tài chính ban hành