Circular 57/2015/tt-Btc: A Guide To Transferring, Receiving, Handling Of Debts And Property Type Except When Arranged, Converting Business Owned By The State Holds 100% Of The Charter Capital

Original Language Title: Thông tư 57/2015/TT-BTC: Hướng dẫn bàn giao, tiếp nhận, xử lý các khoản nợ và tài sản loại trừ khi sắp xếp, chuyển đổi sở hữu doanh nghiệp do Nhà nước nắm giữ 100% vốn điều lệ

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Circulars delivered, received, handled the debt and property type except when arranged, converting business owned by State holding 100% _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ pursuant to the law of management, use of State capital investments in the production, business in the enterprise on November 26, 2014;
Pursuant to Decree No. 215/2013/NĐ-CP on December 23, 2013 the Government mandate the functions, duties, powers and organizational structure of the Ministry of finance;
Pursuant to Decree No. 59/2010/ND-CP on 18/7/2010 of the Government on the transfer of 100% of capital of State enterprises into joint-stock companies;
Pursuant to Decree No. 189/2013/NĐ-CP on November 20, 2013 the Government amended and supplemented a number of articles of Decree No. 59/2010/ND-CP on 18/7/2010 of the Government on the transfer of 100% of capital of State enterprises into joint-stock companies;
Pursuant to Decree No. 128/2014/ND-CP dated 31/12/2014 of the Government on the sale, delivery and transfer of 100% of State enterprises;
Pursuant to Decree No. 71/2013/ND-CP on 11/07/2013 of Government on state capital investment in the business and financial management for enterprises by the State holds 100% of the Charter capital;
Pursuant to Decree No. 206/2013/ND-CP on 9/12/2013 of the Government on the management of enterprise's debt by the State in keeping 100% of the Charter capital;
According to the proposal of the Director General corporate finance, the Minister of Finance issued circulars delivered, received, handled the debt and property type except when arranged, converting business owned by the State holds 100% of the Charter capital, chapter I GENERAL PROVISIONS article 1. Scope this circular guidelines, procedures for transferring, receiving, handling debt and exclude assets charged to business value when making the conversion, arrangement of ownership of enterprise by the State holds 100% of the Charter capital or as directed by the Prime Minister.
Article 2. Application object 1. Limited liability company for the sale of the debt is converted from Vietnam trading company debt and outstanding assets of the enterprise by decision No. 1494/QD-BTC dated 30/6/2010 the Minister of Finance (hereinafter referred to as the company purchases debt);
2. Enterprises perform the sort, convert, has debt and exclude assets when determining the value of enterprise in an delivered to the company for the sale of the debt according to the regulations, including: a) a limited liability company members by State holds 100% of the Charter capital is the parent company of corporations The State, the Corporation, the parent company of model parent company-subsidiary (including State commercial bank);
b) limited liability companies in a Member State due to hold 100% of the capital of independent businesses in ministries, ministerial agencies, government agencies (hereinafter referred to as the logical sectors), the people's committees of provinces and cities directly under the Central Government (hereinafter referred to as the provincial people's Committee);
c) 100% state capital business has not turned into a limited liability company members;
3. The sector Manager, provincial people's Committee is representing the owner of State capital in enterprises referred to in paragraph 2 of this Article (hereafter referred to as the representative of the owner).
4. The organizations or individuals related to the delivery, receiving, handling debt and exclude property.
5. Enterprises, organizations are keeping households owe, exclude assets charged to business value when converting owns 100% of State business under the provisions of the law.
6. limited liability companies a member due to the economic group's parent company, the State Corporation, the parent company in the parent company-subsidiary owns 100% of the Charter capital rules apply in principle, sequence, procedure of handover, receiving in this circular to make delivery of debt and assets excluded when determining the value to business arrange, switch.
Article 3. Explanation of terms 1. "Debt and exclude assets" is the debt and assets are not counted in the value of the business arrangement, transformation of ownership, be approved by the competent authority in the decision of enterprise value and subject to delivery on the company for the sale of the debt according to the rules of arranging, transforming the enterprise by the State owns 100% of the capital.
2. the "debt" is the businesses, organizations and individuals have the obligation to pay the debt.
3. "business has officially switch" is that business has been granted a certificate of registration for the first to officially operating under the new model after making the conversion, arrangement of ownership.
4. the "debt does not have the ability to recall" is the debt payment deadline or too less than the time limit for payment as defined in paragraph 4 of article 3 of Decree 206/2013/ND-CP. Chapter II SPECIFIC PROVISIONS section 1 DELIVERY, reception of DEBT and ASSETS article 4. The transfer principle, debt and assets 1. Property and debts delivered, should ensure the full profile, there are artifacts (for property). The case of the debt and the property does not have enough records, no longer exhibits the debt purchasing companies have written notice sent representatives and business owners know the reason not receptive to continuing business management, tracking or processed according to the current rules on the sort , business transformation.
2. The handing over of debt and assets, the exclusion is done based on the published decision of the competent authority under the provisions of law on the conversion, arrangement of enterprise ownership. Case the competent authority decides to publish business value adjustment: a) if the business has not yet signed the minutes of debt and delivery of property to exclude the debt purchasing company made delivery of debt and assets excluded by decision announced adjusted business value.
b) If the enterprise has signed the minutes of debt and delivery of property to exclude with the company for the sale of the debt according to the decision announced the value of businesses, the Agency has the jurisdiction to decide business worth publication have suggested text companies buy debt sale announced the status of the debt and the property received by the minutes of delivery according to the criteria : processed, recovered and processed, recovered before announcing the decision to adjust the value of the business. The case of the debts and assets have been buying company debt sale process, recovered, then no corresponding adjustments in the decision announced adjusted business value. The case of the debts and assets have not yet been processed, recovered, then make adjustments back minutes of delivery according to the decision announced adjusted business value.
3. When transferring, receiving, asset and debt represented owners, the company bought the debt sale and the business must establish a delivery confirmation, signed by the parties concerned. Representing the owner may authorise (in writing) for business have debt and assets to make to the company for the sale of the debt.
4. debt purchasing companies inheriting power, the obligations of the creditor, the owner of the property under regulations from the date of signing the minutes of delivery. Within 10 days from the date of signing the minutes of delivery, businesses have the responsibility to inform the guests about the right debt creditors for debt purchasing companies.
5. With regard to the debts and assets received as directed by the Prime Minister (if any), the company bought the debt sale, representatives and business owners perform the transfer, receipt, handling debt, such as debt for property, the property excluded from the value of the business arrangement, transformation of ownership ensure consistent with the direction of the Prime Minister. The case had difficulties and obstacles, the company purchases debt finance Ministry reports reviewed, resolved by the authority or the Prime report the decision.
6. enterprises perform financial processing objections to debt and exclude assets under the provisions of the law for each form of sort, convert the property.
Article 5. Content delivery, reception of debt and assets 1. Debt and asset transfer, reception is the debts, assets excluded from the value of the business arrangement, transformation of ownership has not yet been processed at the time of the valuation of the business by the Agency has the authority under the regulations (including the debt already is handling business with power within 5 adjacent years before privatization) full profile, the relevant documents, including: a) for debts delivered: enterprises classified the debt according to the objective existence of the debt and guests form no longer exists in the attached catalogue debts and related records (including information on the current state of each owe).
b) for assets delivered: Enterprise classify the property (fully enclosed documents, has described the condition of the property) according to the following criteria:-the assets worth recovering, can exploit to use or can be sold.
-The property is not worth recovering, not sell, needs dismantling, cancelled.
2. With regard to the debts excluded businesses recovered before making the transfer, the business is responsible for the submission of the company buying and selling debt after deducting costs are affected by the provisions of article 9 of this circular.
3. With regard to the assets excluded, before handing over to the company for the sale of the debt, the business was not processed without written approval of the competent authorities decided the business value and debt purchasing companies. Why business case assets when not yet approved, represented the owner steer business to clarify the responsibilities of organizations and individuals involved to handle according to the regulations, at the same time notify the purchase and sale of company debt. Businesses are responsible for debt purchasing company remitted the full amount recovered from the disposal of assets and not excluding the cost of processing assets.
Article 6. The order and delivery procedures, receiving 1. In the maximum period of 15 days from the decision date of publication the business value, enterprises are responsible for the debt, asset classification excluded as prescribed in this circular and related documents, notification in writing to suggest the company buying and selling debt (Council sent the owner representatives) coordinate , proceed to the delivery procedure.

For businesses that already have decided to publicize the value of previous business day this circular have enforceable but not yet executed, the console during 15 days from the date of this circular effect enforcement, corporate announcements in writing to suggest the company buying and selling debt (Council sent the owner representatives) coordinate , proceed to the reception procedures as prescribed in this circular.
2. Pursuant to decision announced the business value of the competent bodies and the debt profile, asset transfer, the parties establish the minutes of delivery according to the template in Appendix to this circular.
3. debt purchasing company in cooperation with the competent authorities decide on the business value and business to complete the handover procedures, receptive during maximum 15 (fifteen) days of receiving written notice of the business.
Section 2 HANDLE DEBT and RECEIVING PROPERTY article 7. Handle the debt and assets of receiving 1. Debt purchasing companies perform form processing and receiving property under the provisions of the Charter and bylaws of the financial management of the company, ensuring the principles of publicity, transparency and in accordance with the current rules for each form of handling debt and assets. With respect to the property is the right to use the land, then the processor must guarantee according to the provisions of the law of the land.
2. With regard to assets (including the assets guaranteed debts) remaining value on the accounting books from 100 million or more, the company bought the debt sale had functional organization rental valuation determined bid to organize the sale of the property by auction method as specified.
3. With regard to assets (including the assets guaranteed debts) remaining value on bookkeeping under 100 million debt purchasing company, decided to sell the options according to the method of auction or non-price agreement is lower than the market price. Case no transaction property on the market, the company bought the debt sale price or rent a self organization of valuation functions determine the price to sell the property.
4. for batches of assets of business 1st in 1st place: a lot) of assets do not include assets worth left by bookkeeping from 100 million or more, the company bought the debt sale sale selection decisions according to the method of auction or non-price agreement is lower than the market price. The case has a lot of assets there is no trading on the market, the company bought the debt sale price or rent a self organization of valuation functions determine the price to sell the property.
b) for batches of assets including the assets residual value by bookkeeping from 100 million or more, the company bought the debt sale has pricing organizations hire function valuation to valuation and do the following:-the case of the value according to the valuation of the property plots from 100 million and over Debt purchasing company conducted the auction according to the regulations.
-The case of the value according to the valuation of the property under the batch 100 million debt purchasing company, decided to choose the form of auction or sale agreement.
5. Starting price for auction or sale agreement is determined not to lower the price or the market price of self evaluation (in the case of companies buying and selling debt self evaluation) or by organizing functional valuation determines (in case the Organization hire valuation function).
Sold by case method that contains from 2 people buy (is organization, personal) back up and pay the price with each other then made a competitive offer in the form of secret ballot with starting price is the price charged by each other and the buyer pays the highest price is people are buying batches of assets.
6. A number of cases disposed of assets: a) the case of auctioning the property failed (no registration or no auction winners or the buyer hit the auction but not paid), the company bought the debt sale price adjustments in accordance to the auction continues. The event organization, individuals register purchase agreement with a starting price of the auction is not successful, the company closest to a sale of debt decided to sell the deal.
b) cases putting the property receiving into the harness by form of lease, purchase and sale of corporate debt make handling as for property brought into the case, which is joint-venture capital affiliate, as defined in the regulations of the financial management of the company.
c) for the property has no value, the assets need to remove, scrap, the company bought the debt sale in collaboration with business organizations cancelled, removed or hire outside organizations perform Cancel, scrapped.
7. With regard to debt does not have the ability to recover the debt purchasing companies already track outside the balance sheet accounting on 10 (ten) years (including time tracking business out Board before transfer to the company for the sale of the debt if there is), buy and sell the debt collection company records the Finance Ministry report, consideration, decided to exclude, not keep track on the books.
Article 8. Handling property loss, deficiency in the process hold 1. For property loss, deficiency due to objective reasons, force majeure such as natural disasters, the enemy and other unforeseen causes, certified by the representative of the owner sent the company buying and selling debt (for business have yet to officially switch) or local authorities in the place where the loss occurs , lack of assets (for business officially switch) then hold business property is not compensated. The company made debt purchases excluded from receiving property categories corresponding to the number of property loss, deficit 2. For property loss, lack of subjective reason, businesses must make clear the responsibility of the Organization, the individual is related to the handling of compensation according to the market price on the basis of the price determination of the Organization to function with respect to the valuation of similar properties (of the same type , the same capacity). The case at the time of processing the compensation does not have the same property, the restitution according to the value of the property. During the period of 5 (five) working days from the date of the compensation money, businesses have the responsibility to submit the full amount of compensation for debt purchasing companies to manage according to the provisions of this circular.
The case is the shortage of property homes architectural objects do businesses broken up, destroyed, the company bought the debt sale in collaboration with owner representatives and businesses adjust to the respective property category reduction in freight thereon, at the same time responsible business filed about debt purchasing companies in the whole of the proceeds from the liquidation of assets by scrapping destruction (if available).
Section 3 MANAGING the PROCEEDS FROM RECOVERY of DEBT and ASSETS DISPOSAL, article 9. Using the proceeds from recovery, handling debt and debt purchasing companies property management proceeds from recovery, handling debt and the property received under the provisions of the Charter, the company's financial regulation and the following provisions: 1. Extract 30% of the money from debt collection selling the property, took leave for debt purchasing firms used to offset the costs incurred are related such as: fix, upgrade assets (if any), to receive, organize, manage, exploit, handle debt and assets, the discount for fast customers to debt collection debt , valuation, auction fees and other related expenses.
2. Extract 10% of the amount of debt collection, sale of assets transferred to the receiving enterprise in order to offset the costs of administration, custody of assets, debt garnishments (in the case of enterprise currency households are in debt).
The case put the property receiving into the harness (equity contribution, joint ventures, leasing links;) then the payment of the real property custody since may sign the transfer but not more than 10% of the value of the Organization's evaluation function valuation when putting your property on the harness.
3. where the implementation of receiving, handling debt and assets as directed by the Prime Minister that not enough revenue to offset the cost, the company purchases debt using revenue from handling arrears and property received from the business arrangement, convert to file about the Fund support organiser and enterprise development to offset on a consistent basis with Italy opinion of the Prime Minister.
4. the remaining amount of money lodged on the Foundation of enterprise development and arrangement from time to time prescribed in the regulations, the use of the Fund support organiser and grow the business. The case of the amount to be paid under the Fund of 100 million each times arise, companies buy and sell the debt collection and filing of the Fund by month (before November 5 (the year) of the next month).
5. With regard to the proceeds from property sales, debt collection company debt purchase receipt was received prior to the time this circular effect is accomplished extract levels leave the company debt purchase is 20%, not make adjustments according to the provisions in clause 1 of article 9 of this circular.
Article 10. Handling the proceeds from recovery, handling debt and property before delivered to the Purchasing company owes 1. With regard to the proceeds from debt collection and disposal of assets before handing the company purchases debt, businesses are responsible for the submission of the company buying and selling debt in the period of 5 (five) working days from the date of obtaining the money. The slow case filed on the company for the sale of debt, businesses incur interest according to the following rules: a) the slow case filed within 3 months, the interest charged by the basic interest rate by the State Bank of Vietnam announced at the time closest to slow time for the slow time and amount paid. After the time limit of 3 (three) months, businesses incur interest calculated at the interest rate of the loan amount delinquent slowly filed past due time after 3 (three) month is determined by 150% the interest rate calculations for the slow case filed within 3 months.
b) fines for slow submission specified in point a paragraph 1 of this article are not calculated into reasonable expenses when calculating the corporate income tax; only source of business profit after corporate income tax to offset after deducting the compensation clause of the collective, the individual is related to the slow filed (if any).

2. With regard to the proceeds from debt collection and disposal of assets before handing the company debt purchase and prior to the time this circular effect enforcement, enterprises are responsible for debt purchasing company remitted during the period of 15 (fifteen) days from the date of this circular are enforceable. The slow case filed, businesses incur interest as defined in paragraph 1 of this article.
Chapter III IMPLEMENTATION article 11. The responsibility of the owner representatives 1. Directing the business arrangement, convert the full preparation of records, documents and scheduling done hand over debt, the property excluded.
2. Holding the hand over of debt and assets excluded under the provisions of this circular to the company for the sale of the debt.
3. Monitoring of the implementation of the type of asset and debt management unless not yet delivered on the company for the sale of the debt.
4. Host processing of debts and property not subject to an exclusion to the company receiving debt purchases as defined in clause 1 article 4 this circular after receiving written notice of the debt purchasing companies.
5. Host processing of collective responsibility, personal damage, loss of property excluding liquidation or sale of property alienation, when not yet approved by the competent authority to decide the business value and debt purchasing companies.
Article 12. The responsibility of business 1. Adequate preparation of records, documents, assets and debt classification excluded to make deliveries as specified in circular and is responsible for the accuracy, the integrity of the records, this document.
2. Continue to hold the assets of the company for the sale of debt and public announcement to the shareholders (in the case has officially moved into joint-stock companies) regarding the continued custody of the property of the State. Management, conservation organizations, not to occur loss, lack of assets during the custody of assets.
3. In cooperation with the company buying and selling debt in handling debt and assets were delivered.
4. Make the submission proceeds from recovery, handling debt and property before handing to the company for the sale of the debt. Number of outstanding cases to be paid on the debt purchasing company under the provisions of this circular, enterprises filed about debt purchasing company during 5 (five) working days from the date of signing the minutes of delivery.
Article 13. The liability of the company for the sale of debt 1. Perform reception, handling debt and exclude assets as prescribed in this circular. Coordinating construction business plan reception, handling of assets belonging to the receiver need dismantling, cancelled.
2. Urge the enterprises make the submission proceeds from withdrawal, disposal of property and debt elimination before delivered to the company for the sale of the debt.
3. Make the submission proceeds from debt recovery, and disposal of assets of the Fund support organiser and enterprise development under the provisions of this circular 4. Quarterly debt sales company, reported the Ministry of finance results of receiving, handling debt and exclude assets before August 10 (ten) the first month of the next quarter.
5. Implement debt accounting, tracking and receiving assets as defined in the financial regulation of the company.
Article 14. The liability of debt 1. In collaboration with the representative of the owner, the company bought the debt sale and businesses make the procedure to hand over the debt.
2. Perform the obligation to pay the debt for debt purchasing company since the date of signing the minutes of delivery.
3. In cooperation with the company for the sale of debt made the debt handling forms consistent with the current provisions of the law.
Chapter IV article 15 EFFECT. Enforcement resources are 1. This circular has effect as from 1 July 2015 and replacing circular No. 38/2006/TT-BTC dated 10 May 2006 of the Ministry of finance guidelines, procedures and financial processing for console operation, receiving, handling debt and outstanding assets of the business.
2. During the implementation process if there are obstacles, suggest the bodies, timely reflect the units of the Ministry of finance to study the resolution.