Circular No. 118/2014/TT-BTC guiding the transfer of the right to represent state ownership at the State Capital Investment Corporation

CIRCULAR

Hguiding the transfer of the right to represent state ownership at the State Capital Investment Corporation

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- Based on Decree No. 215/2013/NĐ-CP dated December 23, 2013 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Finance;

- Based on Decree No. 59/2011/NĐ-CP dated July 18, 2011 of the Government on converting wholly state-owned enterprises into joint-stock companies;

- Based on Decree No. 189/2013/NĐ-CP dated November 20, 2013 of the Government amending and supplementing some articles of Decree No. 59/2011/NĐ-CP dated July 18, 2011 of the Government on converting wholly state-owned enterprises into joint-stock companies;

- Based on Decree No. 99/2012/NĐ-CP dated November 15, 2012 of the Government on the division and delegation of the rights, responsibilities, and obligations of state owners and state capital invested in enterprises;

- Based on Decree No. 151/2013/NĐ-CP dated November 1, 2013 of the Government on the functions, tasks, and operational mechanisms of the State Capital Investment Corporation;

- Based on Decree No. 57/2014/NĐ-CP dated June 16, 2014 of the Government on the Charter of organization and operation of the State Capital Investment Corporation;

The Minister of Finance hereby issues this Circular amending and supplementing certain Articles of Circular No. 133/2015/TT-BTC dated August 31, 2015, issued by the Minister of Finance guiding the financial management mechanism for the Vietnam Chamber of Commerce and Industry (hereinafter referred to as Circular No. 133/2015/TT-BTC).

The Minister of Finance issues this Circular guiding the transfer of the right to represent state ownership at the State Capital Investment Corporation.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Circular guides the transfer of the right to represent state ownership from ministries, ministerial-level agencies, central government agencies (hereinafter referred to as ministries), provincial People's Committees (hereinafter referred to as provincial People's Committees) to the State Capital Investment Corporation (hereinafter referred to as the Corporation) and the transfer of the right to represent state ownership from enterprises under the Corporation to ministries and provincial People's Committees.

Article 2. Applicability

1. Ministries, provincial People's Committees;

2. State Capital Investment Corporation;

3. Enterprises subject to the transfer of the right to represent state ownership as prescribed in this Circular.

4. State representative at the enterprise;

5. Organizations and individuals related to the work of transferring the right to represent state ownership as prescribed in this Circular.

Article 3. Transfer Objectives

1. The Corporation shall implement the receipt of the right to represent state ownership from ministries and provincial People's Committees at enterprises in accordance with Article 7 of Decree No. 151/2013/NĐ-CP dated November 1, 2013 of the Government on the functions, tasks, and operational mechanisms of the State Capital Investment Corporation (hereinafter referred to as Decree No. 151/2013/NĐ-CP), specifically as follows:

a) State-owned limited liability company (LLC) with one member converted from independent state-owned companies or newly established under ministries, provincial People's Committees;

b) LLC with two or more members converted from independent wholly state-owned enterprises or newly established under ministries, provincial People's Committees;

c) Joint venture companies with state capital contributions where ministries, provincial People's Committees act as state owners;

d) Joint-stock companies converted from independent wholly state-owned enterprises or newly established under ministries, provincial People's Committees;

đ) Economic groups, corporations, and other cases as decided by

2. The Corporation shall not receive the right to represent state ownership at the following enterprises:

a) Enterprises directly serving national defense and security;

b) Enterprises mainly performing the task of providing public goods and services where the proportion of revenue from public goods and services over the total revenue for three consecutive years prior to the time of considering the transfer reaches 50% or more;

c) Other cases as decided by

3. For independent state-owned LLCs directly under ministries, provincial People's Committees currently organizing restructuring and ownership conversion according to plans that have been approved

Chapter II TRANSFER OF THE RIGHT TO REPRESENT STATE OWNERSHIP AT THE STATE CAPITAL INVESTMENT CORPORATION

Article 4. Principles of Transfer

1. The transfer of the right to represent state ownership at enterprises to the Corporation must ensure the following principles: transparency; clarity; continuity; no impact on the business operations of the enterprise; cooperation among parties to address issues arising during and after the transfer process in accordance with the law.

2. The organization of the transfer shall be carried out for each enterprise and must include all necessary files and documents as prescribed by law and the guidance provided in this Circular.

3. In cases where data changes after the transfer, the relevant parties as stipulated in Article 6 of this Circular shall cooperate to clarify the cause, propose measures to handle the situation, and adjust the officially transferred data.

4. For enterprises operating at a loss or without state capital that fall within the scope of transfer, the agency currently exercising the right to represent state ownership at these enterprises must resolve all existing issues in accordance with the law before transferring the right to represent state ownership at the enterprise and must clearly identify and handle the responsibility of collectives or individuals who fail to comply with the law, causing losses to the State (if applicable).

5. For enterprises within the scope of transferring the right to represent state ownership that have changed their scale and capital structure before the effective date of this Circular, the agency currently exercising the right to represent state ownership must bear responsibility for such decisions. Enterprises falling under the scope of the Corporation receiving the right to represent state ownership after the effective date of this Circular, if the Corporation has not yet taken over, the Ministries and Provincial People's Committees shall direct the Legal Representative or relevant agencies to consider and vote on whether to maintain the scale and capital structure of the enterprise unchanged, except for adjustments to the scale and capital structure according to Clause 4, Article 21 of Decree No. 59/2011/NĐ-CP dated July 18, 2011 of the Government on converting wholly state-owned enterprises into joint-stock companies.

6. For enterprises that the Corporation has already received and is currently exercising the right to represent state ownership, in the case

Article 5. Contents of Transfer

1. For joint-stock companies, it is the value of state shares (based on par value) invested in the enterprise and any remaining amounts of money that the State needs to recover (if any).

2. For limited liability companies and joint ventures, it is the book value of state capital invested in the enterprise and any remaining amounts of money that the State needs to recover (if any).

Article 6. Parties Involved in Transfer

1. The transferring party is the Minister, Head of a ministry equivalent to a ministry, government agency, Chairman of the Provincial People's Committee, or a person authorized in writing.

2. The receiving party is the legal representative of the Corporation or a person authorized in writing.

Article 7. Timeframe for Implementation of Transfer

1. For enterprises with state capital contributions prior to the effective date of this Circular, which fall within the scope of transfer as stipulated in Clause 1, Article 3, the Corporation shall coordinate with the Ministries and Provincial People's Committees to implement the transfer of the right to represent state ownership at the enterprise within 30 working days from the date this Circular takes effect.

2. For enterprises implementing shareholding that fall within the scope of transfer as stipulated in Point d, Clause 1, Article 3 of this Circular, the Corporation shall coordinate with the Ministries and Provincial People's Committees to implement the transfer of the right to represent state ownership at the enterprise within 60 working days from the date the enterprise receives its first Business Registration Certificate, except for other cases decided upon by

3. For enterprises falling within the scope of transfer as stipulated in Point đ, Clause 1, Article 3 of this Circular, the Corporation shall coordinate with the Ministries and Provincial People's Committees to implement the transfer of the right to represent state ownership at the enterprise within 30 working days from the date of receipt of the approval document from

4. For the remaining enterprises falling within the scope of transfer as stipulated in Clause 1, Article 3 of this Circular, the Corporation shall coordinate with the Ministries and Provincial People's Committees to implement the transfer of the right to represent state ownership at the enterprise within 30 working days from the date the enterprise receives its first Business Registration Certificate.

Article 8. Basis for determining transfer figures

1. For newly established enterprises and enterprises implementing transfers immediately in the year they are issued their first Business Registration Certificate after conversion, the transfer figures shall be determined at the time the enterprise is issued its first Business Registration Certificate.

2. For the remaining enterprises, the transfer figures shall be determined based on the financial statements for the year or quarter that have been audited at the closest point in time to the transfer date, in accordance with the prescribed regulations. In cases where the enterprise has not yet prepared audited annual or quarterly financial statements, the transfer figures shall be based on the most recent financial statement of the enterprise. The Group shall hire an auditor to audit the enterprise's financial statements and adjust the transfer figures (if necessary) in accordance with Clause 3, Article 4 of this Circular.

Article 9. Transfer Documents

1. The transfer documents shall be prepared separately for each enterprise and shall include:

a) Report on the value of state capital invested in the enterprise (in detail according to Appendix No. 01).

b) Report on amounts of state funds still to be recovered from the enterprise (in detail according to Appendix No. 02).

c) Report on the financial status and business operations of the enterprise (in detail according to Appendix No. 03).

d) Information about the representative of state capital at the enterprise (in detail according to Appendix No. 04).

đ) Minutes of the transfer (according to Appendix No. 05). In the transfer documents, the responsibilities of the parties involved in managing and using state funds at the time of preparing the documents as the basis for transfer and issues requiring continued cooperation to resolve post-transfer must be clearly defined.

2. Legal documents of the Company accompanying the documents, including:

a) Decision to establish the company, or decision to convert state-owned enterprises (certified true copy).

b) Decision and minutes of the competent state authority re-evaluating the value of state capital at the time the joint-stock company or limited liability company was issued the business registration certificate (certified true copy).

c) Confirmation letter from the Board of Directors or Board of Members of the enterprise regarding the amount of state capital investment in the enterprise and state shares or share certificates or shareholder books (for joint-stock companies); contribution certificates or member books of the state (for limited liability companies with two or more members).

d) Certified true copy of the first business registration certificate and subsequent changes (if any).

đ) List of Board of Directors, Board of Members or Chairman of the company, General Director or Managing Director of the company.

e) Current Charter on the organization and operation of the enterprise (certified true copy).

g) Audited annual financial report at the closest point in time to the transfer date or financial report prepared at the time of issuing the first business registration certificate (for enterprises implementing transfers in the year of issuance of the first business registration certificate) (certified true copy).

h) Most recent quarterly financial report of the enterprise.

i) The documents include all related materials (certified true copies) concerning the process of equitization for companies converted through the equitization form, specifically: - Documents determining the enterprise value for equitization; - Decision announcing the enterprise value and decisions, documents of the competent state authority handling financial issues (debts, contributions, unfinished products and unused assets...), labor at the time of determining the enterprise value for equitization; - Equitization plan and Decision approving the plan by the competent authority; - Decision on the initial auction price for the first sale of shares and documents, materials related to the results of the first auction sale of shares, announcement of proceeds from the auction sale of shares and agreement sale to employees; - Documents and materials related to handling financial, debt, and labor issues arising from the time of announcing the enterprise value for equitization to the time of issuing the first business registration certificate; - Decision announcing the actual value of state capital at the time of registering the enterprise as a joint-stock company (if any); - Documents related to joint venture capital contributions and receipt of state capital in cases of joint venture capital contributions through land use rights; - Materials related to changes in registered capital and state capital in the enterprise from the time of converting to a joint-stock company to the transfer time; - Documents and materials related to proceeds from equitization, dividends from state capital, and other revenues payable to the Enterprise Restructuring and Development Fund arising before the transfer time.

3. Copies certified true by the authorized person of the enterprise, signed, stamped, and responsible under the law for the legality of these documents.

4. The transfer documents shall be prepared in three sets to be sent to the relevant parties after signing the handover minutes, including:

a) One set sent to the Ministry or Provincial People's Committee.

b) One set sent to the Group.

c) One set retained by the enterprise.

Article 10. Transfer Procedure

1. The State Capital Representative at the enterprise shall prepare the transfer dossier in accordance with Article 9 of this Circular and submit it to relevant units. In cases where there is no State Capital Representative, the Ministries and Provincial People's Committees shall instruct the specialized departments to prepare the dossier and proceed according to the prescribed procedure.

2. Based on the transfer dossier, the Ministries and Provincial People's Committees shall instruct the specialized departments to cooperate with the Holding Company and the enterprises subject to transfer to review the dossier and data, prepare the Minutes of Transfer of State Ownership Representative Rights at each enterprise (Model Appendix No. 05), and report to the leadership of the Ministries and Provincial People's Committees or the authorized person to sign the Minutes of Transfer.

3. Within ten working days from the date of receiving the complete dossier, the Holding Company shall sign the Minutes of Transfer.

4. Upon completion of the transfer, the Holding Company shall send the Minutes of Transfer to the transferring party (one copy) and the enterprise (one copy).

5. For cases where there is no agreement on the dossier and data within ten working days from the date of receiving the Minutes of Transfer and all related dossiers as prescribed, the Holding Company must provide written comments to the Ministries and Provincial People's Committees to supplement the dossier and adjust the official transfer data. Within ten working days from the date of receipt of the Holding Company's document, the Ministries and Provincial People's Committees shall instruct the State Capital Representatives and specialized departments to cooperate with the enterprises to complete the dossier or provide comments on adjusting the data.

6. If necessary, the Holding Company shall coordinate with the Ministries and Provincial People's Committees to convene meetings and reach consensus on the Minutes of Transfer and transfer data.

1. This Circular regulates the procedures for receiving sponsorship, contributions, and accepting mandates from domestic organizations and individuals, and contributions that must be repaid and mandates from foreign organizations and individuals for the Small and Medium Enterprise Development Fund (hereinafter referred to as the Fund).III IMPLEMENTATION

Article 11. Responsibilities of the Ministries and Provincial People's Committees

1. Direct the State Capital Representatives and related agencies to cooperate with the Holding Company and enterprises to complete the transfer of State Ownership Representative Rights at enterprises in accordance with the deadlines stipulated in this Circular.

2. For joint-stock enterprises subject to the transfer of State Ownership Representative Rights to the Holding Company, the Ministers, Heads of Ministries equivalent to Ministries, and organs under the Government, Chairmen of Provincial People's Committees directly under the Central Government shall be responsible for:

a) Agreeing with the Holding Company on the selection of the State Capital Representative at the joint-stock company;

b) Directing the Joint Stock Reform Steering Committee to resolve any remaining financial issues (if any) before the transfer, and completing the revaluation of the State Capital Value at the time the joint-stock company is first issued a Business Registration Certificate within thirty days from the date the joint-stock company receives the Business Registration Certificate.

3. Direct the State Capital Representatives at enterprises to address any issues related to the State Ownership Representative Rights before the transfer of State Ownership Representative Rights and prepare the transfer dossier in accordance with this Circular.

4. Review the dossier and sign the Minutes of Transfer (Model Appendix No. 05) in accordance with the guidance provided in this Circular.

5. Take the lead and coordinate with the Holding Company to continue addressing unresolved issues related to State Ownership Representative Rights at enterprises and any remaining financial issues (if any) arising from the Minutes of Transfer.

6. Arrange and settle the status for dedicated or concurrently appointed State Capital Representatives sent by the Ministries and Provincial People's Committees when they no longer hold the function of representing State Capital at transferred enterprises.

7. In cases where enterprises meet the conditions but fail to implement the transfer of State Ownership Representative Rights as stipulated in this Circular, they shall bear responsibility.

8. Exercise the rights, obligations, and responsibilities of State Capital Owners at enterprises receiving the transfer in accordance with the law.

9. Report periodically, within forty-five days from the end of the year.

Article 12. Responsibilities of the State Capital Representative at Enterprises

1. Establish transfer files in accordance with the guidelines set forth in this Circular and be responsible for the accuracy of the data in the following reports: Report on the Value of State Capital Investment in the Enterprise (Annex No. 01); Report on the Value of State Funds Still to be Recovered (Annex No. 02); Financial Status and Business Operations Report of the Enterprise (Annex No. 03); Information Report on the State Capital Representative at the Enterprise (Annex No. 04).

2. Coordinate with the enterprise to complete procedures for re-registering ownership of state shares or contributions from the Ministry, Provincial People's Committee to the Corporation.

3. Urge the enterprise to pay proceeds from shareholding privatization and profits, dividends belonging to the state capital portion in enterprises according to regulations (including late payment penalties if applicable).

4. The State Capital Representatives at enterprises appointed by Ministries, Provincial People's Committees prior to the transfer of state ownership representation rights shall continue to perform their functions, duties, and powers as stipulated by current laws and regulations of the Corporation until the Corporation issues new decisions.

5. In case of failure to fulfill assigned tasks and powers, the competent authority will consider replacing the State Capital Representative to carry out the tasks. If intentionally delaying the implementation of related transfer activities, they must bear responsibility for compensating any resulting losses (if any).

6. Proactively report to the Ministry, Provincial People's Committee, or the Corporation to handle any issues related to state ownership representation rights before the transfer.

Article 13. Responsibilities of the State Capital Investment and Business Corporation

1. Coordinate with Ministries, Provincial People's Committees to select State Capital Representatives at enterprises undergoing shareholding privatization within the scope of the transfer.

2. Exercise rights and obligations of state ownership representation at enterprises from the date of transfer.

3. Coordinate with Ministries, Provincial People's Committees to appoint additional or replacement State Capital Representatives when necessary.

4. Monitor and urge enterprises that have been taken over by the Corporation to pay proceeds from shareholding privatization, dividends, and distributed profits belonging to the state capital portion to the Enterprise Restructuring and Development Support Fund and settle the collection of these amounts according to regulations.

5. Direct the State Capital Representatives and relevant functional units to complete the transfer of state ownership representation rights at enterprises in accordance with the deadlines specified in this Circular.

6. Regularly, within fifteen days from the end of each quarter, the Corporation shall report to the Ministry of Finance on the situation of transferring state ownership representation rights at enterprises; the plan for receiving the next quarter. Reports should clearly state the progress, results, advantages, difficulties, obstacles, and recommendations (if any).

7. Regularly, together with the annual financial report submission deadline as prescribed by law, report

8. Coordinate with Ministries, Provincial People's Committees to continue handling unresolved issues related to state ownership representation rights at enterprises and any financial issues (if any) arising before the signing of the Transfer Memorandum.

Article 14. Effective Date

1. This Circular takes effect from October 9, 2014.

2. Repeal Circular No. 47/2007/TT-BTC dated May 15, 2007, issued by the Ministry of Finance guiding the transfer of state ownership representation rights at enterprises to the State Capital Investment and Business Corporation.

3. During the implementation process, if there are any difficulties, please promptly reflect them to the Ministry of Finance for research and resolution./.