Circular No. 81/2005/TT-BTC guiding the transfer of the right to represent state capital ownership at enterprises to the State Capital Investment Corporation

 

CIRCULAR

Guidelines for transferring the right to represent state ownership capital invested in enterprises to the State Capital Investment Corporation

investment in enterprises under State Capital Investment Corporation

investment and business with state capital

Implementing Decision No. 151/2005/QD-TTg dated June 20, 2005 of the Prime Minister on the establishment of the State Capital Investment Corporation; Decision No. 152/2005/QD-TTg dated June 20, 2005 of the Prime Minister on approving the charter and operations of the State Capital Investment Corporation; Decree No. 199/2004/NĐ-CP dated December 3, 2004 of the Government promulgating the Financial Management Regulations for State-Owned Companies and the Management of State Capital Invested in Other Enterprises, The Ministry of Finance hereby guides the transfer of the right to represent state ownership capital invested in enterprises to the State Capital Investment Corporation as follows:

1. Scope of application: This Circular guides the transfer of the right to represent state ownership capital invested in other enterprises from ministries, ministerial-level agencies, and government agencies (hereinafter referred to as ministries and sectors), provincial People's Committees (hereinafter referred to as provincial People's Committees) to the State Capital Investment Corporation (hereinafter referred to as the Corporation).

2. Scope of Transfer: The right to represent state ownership capital invested in other enterprises includes:

+ The right to represent state ownership capital invested in limited liability companies (LLC) with one member converted from independent state-owned companies.

+ The right to represent state ownership capital invested in LLCs with two or more members converted from independent state-owned companies.

+ The right to represent state ownership capital invested in joint-stock companies converted from independent state-owned companies or newly established.

+ Other cases as decided by the Prime Minister.

3. Principles of Transfer:

- Only the right to represent state ownership capital at other enterprises shall be transferred. The organization and management of business activities of other enterprises and the performance of sectoral management functions by ministries, sectors, and provincial People's Committees over the activities of other enterprises shall be carried out in accordance with current laws.

- The transfer shall be conducted between the Ministry of Finance, ministries, sectors, provincial People's Committees, and the State Capital Investment Corporation.

- The organization of the transfer shall be implemented when all necessary files and documents as prescribed by law and this Circular are available.

4. Content of Transfer:

a/ The value of state capital invested in enterprises (including detailed information on the value of state capital and the proportion of state capital in the registered capital at the time of handover); list of enterprises with state investment capital to be transferred to the Corporation (including detailed information on enterprise type, main business, date of establishment, headquarters address). Report form according to attached hereto. Enterprises importing tobacco raw materials and cigarette paper for producing tobacco products for export or processing tobacco products for export shall submit registration applications according to Form

b/ Financial situation and business operation of enterprises with state investment capital to be transferred to the Corporation (including detailed report on total assets, receivables, payables, equity, business results...). Report form according to attached hereto to the People's Committee of the province. Enterprises importing tobacco raw materials and cigarette paper for producing tobacco products for export or processing tobacco products for export shall submit registration applications according to Form

c/ Any financial issues (if any).

5. Transfer Documents:

a/ Contents of transfer documents: Transfer documents are prepared for each enterprise with state investment capital, including:

- Decision on establishing the company or decision on converting state-owned enterprises.

- Shares or share certificates (for joint-stock companies); contribution certificates (for LLCs with two or more members).

- Copy of business registration certificate.

- List of Chairman of the Board of Directors or Chairman of the company, General Director or CEO of the company.

- Report on financial situation and business operation of the enterprise (attached hereto to the People's Committee of the province.).

b/ Submission of documents: Transfer documents are prepared in three copies to be sent to relevant parties, including:

- One copy sent to the ministry, sector, or provincial People's Committee.

- One copy sent to the Ministry of Finance.

- One copy sent to the State Capital Investment Corporation.

6. Method of Transfer:

a/ Date for determining transfer data: December 31, 2005.

b/ Basis for determining transfer data is the financial reports of enterprises (financial reports prepared in accordance with current laws on financial accounting). In case the data changes after the handover, the Corporation will adjust the officially received transfer data and report to the Ministry of Finance.

c/ Transfer documents as stipulated in Point 5 of this Circular.

d/ Organization of transfer:

- The Ministry of Finance shall organize the transfer of the right to represent state ownership capital at other enterprises from ministries, sectors, and provincial People's Committees to the State Capital Investment Corporation.

- Party transferring: Minister, head of ministerial-level agency, head of government agency, Chairman of the provincial People's Committee, or authorized representative.

- Party receiving: Chairman of the Board of Directors of the State Capital Investment Corporation or authorized representative.

đ/ The transfer of the right to represent state ownership capital at other enterprises from ministries, sectors, and provincial People's Committees to the State Capital Investment Corporation shall be recorded in a protocol according to the model attached to this Circular (Appendix No. 3).

7. Time for Organizing Transfer:

a/ For state-owned enterprises that have completed ownership conversion or operational form before December 31, 2005:

- Completion of documents as stipulated in Point 5 of this Circular before April 15, 2006. In case the documents are incomplete within the prescribed requirements, the Ministry of Finance shall notify the ministries, sectors, and provincial People's Committees to supplement within a maximum of five working days from the date of receipt of the documents.

- After receiving complete documents as required, the Ministry of Finance shall notify the ministries, sectors, provincial People's Committees, and the Corporation about the date and location for organizing the transfer.

- The transfer shall begin from May 1, 2006 to June 15, 2006.

b/ For state-owned enterprises (SOEs) transferring ownership or form of operation from January 1, 2006 onwards: The transfer shall be carried out concurrently with the enterprise transformation process. From the date the decision approving the enterprise transformation plan becomes effective, ministries, sectors, provincial People's Committees shall send letters to the State Capital Investment Corporation to implement the acceptance of the state capital investment rights at the enterprises according to regulations.

Based on the results of selling shares (in cases of SOEs undergoing shareholding reform), financial statements of the enterprise at the time of transformation approved by the competent authority (in cases of transforming SOEs into single-member joint-stock companies), ministries, sectors, provincial People's Committees shall issue decisions to transfer the state capital investment rights at the enterprises to the State Capital Investment Corporation.

8. During the period before transferring the state capital investment rights at the enterprises to the State Capital Investment Corporation:

- Ministries, sectors temporarily refrain from transferring the state capital investment rights at independent state-owned companies established by ministries, sectors and fully privatized enterprises to the Ministry of Finance (as stipulated in Decree No. 199/2004/QĐ-TTg dated December 3, 2004 of the Prime Minister) regarding the issuance of financial management regulations for state-owned companies and state capital investment in other enterprises) to proceed with the transfer to the State Capital Investment Corporation as guided by this Circular.

- Ministries, sectors, provincial People's Committees continue to exercise the state capital investment rights at the enterprises until the completion of the transfer of the state capital investment rights at the enterprises to the State Capital Investment Corporation.

- From the date Decision No. 151/2005/QĐ-TTg dated June 20, 2005 of the Prime Minister on the establishment of the State Capital Investment Corporation takes effect, during the period before transferring the state capital investment rights at the enterprises to the State Capital Investment Corporation, if there are changes in state capital at other enterprises or due to changes in business restructuring such as mergers, consolidations, or ownership transfers..., ministries, sectors, provincial People's Committees are requested to notify the Ministry of Finance for consolidation and reporting to the Prime Minister.

Implementation Organization:

a/ Ministries, sectors, provincial People's Committees are responsible for:

- Directing state capital representatives at enterprises to handle pending issues related to the state capital ownership rights before transfer and prepare transfer files according to this Circular.

- Reviewing, compiling lists of enterprises, values of state capital (according to attached hereto.) and submit to the Ministry of Finance before April 30, 2006.

- Implementing the transfer procedures as prescribed in this Circular.

- Cooperating with the Ministry of Finance and the State Capital Investment Corporation to continue resolving pending issues arising before the organization of the transfer related to state capital ownership rights at the enterprises.

b/ The Ministry of Finance is responsible for:

- Guiding and implementing the transfer as prescribed in this Circular.

- Taking the lead in organizing the transfer.

- Cooperating with ministries, sectors, provincial People's Committees to resolve issues arising during implementation within their authority or reporting to the Prime Minister issues exceeding their decision-making authority.

c/ Responsibilities of state capital representatives at enterprises:

Reporting the financial situation and business operations of enterprises with state capital investment (according to attached hereto to the People's Committee of the province.) and preparing transfer files according to the guidance in this Circular.

d/ Responsibilities of the State Capital Investment Corporation:

Accepting and exercising rights and obligations of state capital ownership at enterprises from the date of receiving the transfer.

10. Implementation Provisions: This Circular shall take effect fifteen days after its publication in the Official Gazette. Any difficulties encountered during implementation should be reported to the Ministry of Finance for study and appropriate amendments.