CIRCULAR

GUIDING DECREE NO.\r\n148/2021/ND-CP DATED DECEMBER 31, 2021 OF THE GOVERNMENT ON MANAGEMENT AND USE\r\nOF REVENUES GENERATED BY TRANSFER OF OWNERSHIP OF ENTERPRISES AND PUBLIC\r\nSERVICE PROVIDERS, REVENUES GENERATED BY TRANSFER OF STATE CAPITAL AND EQUITY\r\nAMOUNT THAT EXCEEDS CHARTER CAPITAL OF ENTERPRISES

Pursuant to Law on State Budget dated June 25,\r\n2015;

Pursuant to Law on Tax Administration dated June\r\n13, 2019;

Pursuant to the Law on Management and Use of\r\nState Capital Invested in Manufacture and Business of Enterprises dated\r\nNovember 26, 2014;

Pursuant to Law on Enterprises dated June 17,\r\n2020;

Pursuant to Decree No. 87/2017/ND-CP dated July\r\n26, 2017 of the Government on functions, tasks, powers, and organizational\r\nstructure of the Ministry of Finance;

Pursuant to Decree No. 148/2021/ND-CP dated\r\nDecember 31, 2021 of the Government on management and use of revenues generated\r\nby transfer of ownership of enterprises and public service providers, revenues\r\ngenerated by transfer of state capital and equity amount that exceeds charter\r\ncapital of enterprise;

...

...

...

Pursuant to Decree No. 91/2015/ND-CP dated\r\nOctober 13, 2015 of the Government on State Capital Investment in Enterprises\r\nand Management, Use of Capital and Property in Enterprises;

Pursuant to Decree No. 32/2018/ND-CP dated March\r\n8, 2018 of the Government on amendments to Decree No. 91/2015/ND-CP dated\r\nOctober 13, 2015 of the Government on State Capital Investment in Enterprises\r\nand Management, Use of Capital and Property in Enterprises;

Pursuant to Decree No. 126/2017/ND-CP dated\r\nNovember 16, 2017 of the Government on converting state-owned enterprises and\r\nsingle-member limited liability companies whose charter capital is wholly\r\ninvested by state enterprises into joint-stock companies;

Pursuant to Decree No. 140/2020/ND-CP dated\r\nNovember 30, 2020 of the Government on amendment to Decree No. 126/2017/ND-CP\r\ndated November 16, 2017 of the Government on converting state-owned enterprises\r\nand single-member limited liability companies whose charter capital is wholly\r\ninvested by state enterprises into joint-stock companies; Decree No.\r\n91/2015/ND-CP dated October 13, 2015 of the Government on investment of state\r\ncapital in enterprises and management, use of capital and assets at enterprises\r\nand Decree No. 32/2018/ND-CP dated March 8, 2018 of the Government on amendment\r\nto Decree No. 91/2015/ND-CP;

Pursuant to Decree No. 150/2020/ND-CP dated\r\nDecember 25, 2020 of the Government on converting public service providers into\r\njoint-stock companies;

Pursuant to Decree No. 23/2022/ND-CP dated April\r\n5, 2022 of the Government on establishment, rearrangement, transfer of\r\nownership, and transfer of ownership representation at enterprises of which\r\n100% charter capital is held by the State;

At the request of the Director of Department of\r\nCorporate Finance;

Minister of Finance promulgates Circular guiding\r\nDecree No. 148/2021/ND-CP dated December 31, 2021 of the Government on\r\nmanagement and use of revenues generated by transfer of ownership of\r\nenterprises and public service providers, revenues generated by transfer of\r\nstate capital and equity amount that exceeds charter capital of enterprises.

Chapter I

...

...

...

Article 1. Scope

This Circular guides:

1. Preparation of expenditure\r\nand revenue estimates mentioned under Article 9, Clause 1 and Point a Clause 2\r\nArticle 10 of Decree No. 148/2021/ND-CP.

2. Declaration and submission\r\nof amounts mentioned under Clause 1 Article 6 of Decree No. 148/2021/ND-CP to\r\nthe state budget.

3. Recurrent expenditure and\r\ninvestment of state capital in enterprises mentioned under Clause 1 and Point a\r\nClause 2 Article 7 of Decree No. 148/2021/ND-CP.

4. Settlement of revenues and\r\nlate payment interest submitted to Enterprise Arrangement and Development Fund\r\n(hereinafter referred to as “Fund”) that arise before the effective date of\r\nDecree No. 148/2021/ND-CP according to Article 11, Article 12, and Article 13\r\nof Decree No. 148/2021/ND-CP.

Article 2. Regulated entities

1. Entities regulated by this\r\nCircular include:

a) Ministries, ministerial agencies, Governmental\r\nagencies, Committee for Management of State Capital at Enterprises acting as\r\nownership representative agencies (hereinafter referred to as “central state\r\ninvestment representative agencies”); People’s Committees of provinces and\r\ncentral-affiliated cities (hereinafter referred to as “provincial People’s\r\nCommittees”).

...

...

...

c) State-invested enterprises that are joint-stock\r\ncompanies (including joint-stock commercial banks and joint-stock companies\r\nestablished as a result of equitisation of public service providers), and\r\nmulti-members limited liability companies.

d) State investment representatives in joint-stock\r\ncompanies and multi-member limited liability companies (hereinafter referred to\r\nas “state investment representatives”).

dd) Public service providers converted into\r\njoint-stock companies according to regulations of the Government.

e) State Capital and Investment Corporation\r\n(hereinafter referred to as “SCIC”); Vietnam Debt and Asset Trading Corporation\r\nSingle-member Limited Liability Company (hereinafter referred to as “DATC”).

g) Other agencies, organizations, and individuals\r\nrelated to the investment, management, and use of state capital at enterprises\r\nand transfer of ownership of enterprises and public service providers.

2. Entities under Clause 2\r\nArticle 2 of Decree No. 148/2021/ND-CP are not subject to management of state\r\nexpenditure and revenues according to Chapter II hereof.

Article 3. General principles

1. The determination of\r\nrevenues according to Clause 1 Article 6 of Decree No. 148/2021/ND-CP to submit\r\nto state budget shall conform to regulations and law on conversion of ownership\r\nof enterprises and service providers, regulations on management and use of state\r\ncapital invested in business production at enterprises.

If the sum generated by equitisation of enterprises\r\nand public service providers or transfer of state capital or transfer of\r\nadditional share options and the right to contribute capital is insufficient to\r\ncover expenses as per the law, enterprises and public service providers are\r\nallowed to retain the sum to cover the expenses as per the law and are not\r\nrequired to declare and submit to state budget. The deficit (if any) or surplus\r\nbetween the paid amount and amount payable shall be dealt with in accordance\r\nwith Clause 1 Article 7 of Decree No. 148/2021/ND-CP.

...

...

...

3. The determination of\r\nincome, revenues, costs, and other details for the purpose of calculating tax\r\nshall conform to tax laws.

4. Regulations on producing,\r\ndeciding, and distributing budget estimates shall conform to the Law on State\r\nBudget, Decree No. 148/2021/ND-CP, this Circular, and relevant documents;

Chapter II

SPECIFIC PROVISIONS

Article 4. Preparation of revenue estimates

1. Central state investment\r\nrepresentative agencies and provincial People’s Committees shall produce\r\nestimates for revenues under Clause 1 Article 6 of Decree No. 148/2021/ND-CP\r\n(in detail for revenue) for enterprises and public service providers under\r\ntheir management, produce annual state budget estimates as per the law, and\r\nsend to Ministry of Finance before July 20 each year to include in state budget\r\nestimates and report to the Government and National Assembly.

2. Method of determining\r\nrevenue estimates:

a) In case of revenues generated by equitisation of\r\nenterprises and public service providers, revenue estimates shall be determined\r\nin accordance with equitisation schedule and solutions of enterprises and\r\npublic service providers approved by competent authorities using the following\r\nformula:

Revenue estimates equal (=) sold shares multiplied\r\nby (x) expected starting price minus (-) estimates of equitisation cost, costs\r\nfor settling redundant employees and downsizing.

...

...

...

c) In case of revenues generated by transfer of\r\nstate capital and transfer of additional share options and the right to\r\ncontribute capital at enterprises, revenue estimates shall be determined based\r\non schedule and solutions for transferring state capital and solutions for\r\ntransferring additional share options and the right to contribute capital at\r\nenterprises approved by competent authorities using the formula below:

- Estimates of revenues\r\ngenerated by transfer of state capital in joint-stock comparisons equal (=)\r\namount of shares expected to be transferred multiplied by (x) expected starting\r\nprice of share transfer minus (-) estimates of revenues of capital transfer.

- Estimates of revenues\r\ngenerated transfer of share options equal (=) number of options multiplied by\r\n(x) expected starting price of option transfer minus (-) estimates of share\r\noption transfer costs.

- Estimates of revenues\r\ngenerated by transfer of capital and the right to contribute capital in\r\nmulti-member limited liability companies equal (=) expected revenues generated\r\nby transfer of capital and the right to contribute capital minus (-) estimates\r\nof costs for transferring capital and the right to contribute capital.

d) Estimates of equity amount exceeding charter\r\ncapital of operational level 1 enterprises shall be determined in accordance\r\nwith Clause 3 Article 9 of Decree No. 148/2021/ND-CP.

Article 5. Preparation of expenditure estimates\r\nfor state budget

1. Central state investment\r\nrepresentative agencies and provincial People’s Committees shall produce\r\nestimates for expenses under Clause 1, Point a Clause 2 Article 7 of Decree No.\r\n148/2021/ND-CP (in detail for each expense) for enterprises and public service\r\nproviders under their management, produce annual state budget estimates as per\r\nthe law, and send to Ministry of Finance before July 20 each year to include in\r\nstate budget estimates and report to the Government and National Assembly.

2. Produce estimates of\r\nrecurrent expenditure to support, cover the missing expenses, and settling the\r\nexcess of paid amount to amounts payable according to Clause 1 Article 10 of\r\nDecree No. 148/2021/ND-CP as follows:

a) Based on approved solutions and finalization of\r\ncompetent authorities regarding expenditure on settling redundant employees and\r\ndownsizing and expenses relating to ownership transfer and actual amounts\r\npayable, enterprises and public service providers shall propose support to be\r\nincurred by state budget for the aforementioned purposes (if any), report to\r\ncentral state investment representative agencies (in case of central\r\nenterprises and public service providers), provincial People’s Committees (in\r\ncase of provincial enterprises and public service providers) to review,\r\nappraise, and include in recurrent expenditure estimates for economic\r\noperations of agencies and local governments.

...

...

...

b) Based on quantity and scale of enterprises and\r\npublic service providers under management and deadline for submitting estimates\r\nunder Clause 1 of this Article, central state investment representative\r\nagencies and provincial People’s Committees shall prescribe the suitable time\r\nlimit for enterprises and public service providers to produce and send reports.\r\n

3. Producing expenditure\r\nestimates on state capital invested in enterprises shall conform to Point a\r\nClause 2 Article 10 of Decree No. 148/2021/ND-CP and be included in estimates\r\non budget expenditure on investment and development.

With respect to enterprises where Committee for\r\nManagement of State Capital at Enterprises acts as state investment\r\nrepresentative in accordance with Clause 2 Article 9 of Decree No.\r\n131/2018/ND-CP dated September 29, 2018 of the Government, expenditure\r\nestimates on state capital invested in enterprises shall be allocated to these\r\nenterprises directly.

Article 6. Declarants, payers, and collectors

1. Revenues generated by\r\nownership transfer of enterprises and public service providers, transfer of\r\nstate capital, transfer of options of additionally issued shares, and transfer\r\nof the right to contribute capital and equity amount that exceeds charter\r\ncapital at enterprises, after removing costs relating to ownership transfer of\r\nenterprises and public service providers, costs for capital transfer and costs\r\nfor transfer of share option and the right to contribute capital, must be\r\ndeclared and fully, promptly submitted to state budget in accordance with this\r\nCircular and Circular No. 324/2016/TT-BTC dated December 21, 2016 of the\r\nMinistry of Finance, in which:

a) Revenues from enterprises and public service\r\nproviders affiliated to central level as mentioned under Article 4 of Decree\r\nNo. 148/2021/ND-CP shall be submitted to central government budget under\r\nSubsection 3653 “Government capital recovery”.

b) Revenues from enterprises and public service\r\nproviders affiliated to local level as mentioned under Article 5 of Decree No.\r\n148/2021/ND-CP shall be submitted to local government budget under Subsection\r\n3653 “Government capital recovery”.

2. The declaration and paying\r\nto state budget must be implemented each time an amount payable to the state\r\nbudget occurs. Declarants and payers are responsible for submitting money in\r\naccordance with regulations and law on ownership transfer of enterprises and\r\npublic service providers, regulations and law on management and use of state\r\ncapital invested in business and production at enterprises. Taxpayers are\r\nresponsible for attaching Declaration of documents serving as the basis for\r\namounts payable.

3. Enterprises, public service\r\nproviders, declarants and payers of amounts under Article 7 hereof shall\r\ndeclare at tax authorities directly overseeing enterprises and public service\r\nproviders and submit to state budget in accordance with Clause 1 of this\r\nArticle.

...

...

...

Article 7. Time limit for declaring, submitting\r\nto state budget and declaration form

1. Revenues generated from\r\nequitisation of enterprises and public service providers:

a) Revenues generated from public auctions:

Within 5 working days from the date on which the\r\ntime limit for investors participating in the auctions to pay expires,\r\norganizations holding the auctions are responsible for declaring and submitting\r\nrevenues generated from sale of shares in accordance with Point c Clause 1\r\nArticle 11 of Circular No. 32/2021/TT-BTC dated May 17, 2021 of the Minister of\r\nFinance and Point b Clause 1 Article 16 of Circular No. 111/2020/TT-BTC dated\r\nDecember 29, 2020 of the Minister of Finance to the state budget under Form No.\r\n01/CPH attached hereto.

b) Revenues generated by auctions between strategic\r\ninvestors:

Within 5 working days from the date on which the\r\ntime limit for investors participating in the auctions to pay expires,\r\nenterprises and public service providers are responsible for declaring and\r\nsubmitting revenues generated by the sale of shares in accordance with Clause 3\r\nArticle 11 of Circular No. 32/2021/TT-BTC and Point dd Clause 1 Article 34 of\r\nDecree No. 150/2020/ND-CP to the state budget under Form No. 01/CPH attached\r\nhereto.

c) Revenues generated by underwriting:

Within 10 days from the date on which the sale and\r\npurchase of shares under underwriting contracts are complete, underwriting\r\norganizations are responsible for declaring and submitting revenues generated\r\nby the sale of shares in accordance with Clause 2 Article 11 of Circular No.\r\n32/2021/TT-BTC and Point b Clause 2 Article 16 of Circular No. 111/2020/TT-BTC\r\nto the state budget under Form No. 01/CPH attached hereto.

d) Revenues generated by selling agreement to\r\ninvestors, selling preference shares to union organizations, employees, and\r\nenterprise managers:

...

...

...

e) Revenues generated by selling shares of\r\nequitized enterprises in form of book building:

Within 5 working days from the date on which the\r\ntime limit for investors to pay for share purchase, organizations managing\r\norder book are responsible for declaring and submitting revenues generated by\r\nselling shares in accordance with Point b Clause 2 Article 25 of Circular No.\r\n21/2019/TT-BTC dated April 11, 2019 of Minister of Finance under Form No.\r\n01/CPH attached hereto.

g) Revenues generated by equitisation from the date\r\non which joint-stock companies are created through conversion:

Within 90 days from the date on which Enterprise\r\nregistration certificate is issued for the first time, joint-stock companies\r\nconverted from equitized enterprises and public service providers are\r\nresponsible for determining revenues generated by equitisation and submitting\r\nto state budget in accordance with Clause 6 Article 12 of Circular No.\r\n32/2021/TT-BTC, Clause2 Article 17 of Circular No. 111/2020/TT-BTC and\r\ndeclaring, submitting to state budget under Form No. 01/CPH attached hereto.

Within 5 working days from the date on which\r\ndecisions of state investment representative agencies approving finalization of\r\nrevenues generated from equitisation are issued on the date on which\r\njoint-stock companies are official established through conversion, joint-stock\r\ncompanies converted from equitized enterprises and public service providers are\r\nresponsible for declaring and submitting any amount surplus to paid amounts (if\r\nany) to state budget in accordance with Clause 7 Article 12 of Circular No.\r\n32/2021/TT-BTC and Clause 2 Article 17 of Circular No. 111/2020/TT-BTC under\r\nForm No. 02/QT-CPH attached hereto.

h) Other revenues:

- Within 30 days from the date\r\non which warranty period expires as per contracts, equitized enterprises are responsible\r\nfor declaring and submitting all remaining unused provisions for warranty of\r\nproducts, goods, and constructions (applicable to signed contracts where\r\nwarranty period remains effective after the date on which Enterprise\r\nregistration certificate is issued for the first time) to the state budget in\r\naccordance with Point a Clause 2 Article 21 of Decree No. 126/2017/ND-CP under\r\nForm No. 01/CPH attached hereto.

- Within 10 working days from\r\nthe date on which revenues generated by recovery and settlement of debts and\r\nassets, the DATC is responsible for declaring and submitting amounts payable to\r\nthe state budget in accordance with Clause 3 Article 9 of Circular No.\r\n07/2022/TT-BTC dated February 9, 2022 of the Minister of Finance and directions\r\nof the Government, Prime Minister under Form No. 01/CPH attached hereto. If\r\namount payable is less than 100 million VND per occurrence, the DATC shall\r\nconsolidate and submit on a monthly basis within 5 working days from the last\r\nday of the preceding month in accordance with Clause 3 Article 9 of Circular\r\nNo. 07/2022/TT-BTC.

- Within 10 working days from\r\nthe date on which debts are recovered, financial banks and enterprises engaging\r\nin telecommunication mentioned under Point c Clause 9 Article 1 of Decree No.\r\n140/2020/ND-CP are responsible for declaring and submitting amounts that are\r\npayable to the state budget and taken from public debts and not included in the\r\nrecoverable value of equitized enterprises under Form No. 01/CPH attached\r\nhereto.

...

...

...

a) Revenues generated by transfer of state capital\r\ninvested in joint-stock companies and multi-member limited liability companies:\r\n

- Within 15 days from the date\r\non which results of public auctions/open bidding are announced or contracts for\r\ncapital transfer are signed (in case of an agreement), state investment\r\nrepresentative agencies (or authorized entities) are responsible for declaring\r\nand submitting revenues generated by transfer of state capital to state budget\r\nin accordance with Clause 1 Article 39 of Decree No. 91/2015/ND-CP under Form\r\nNo. 01/CNV attached hereto.

- Within 10 working days from\r\nthe date on which capital transfer is made at enterprises registering for\r\nexchange or listed on the stock exchange, state investment representative\r\nagencies (or authorized entities) are responsible for declaring and submitting\r\nrevenues generated by transfer of state capital to state budget in accordance\r\nwith Clause 1 Article 39 of Decree No. 91/2015/ND-CP under Form No. 01/CNV\r\nattached hereto.

- Within 10 working days from\r\nthe date on which payments made by organizations managing order book are\r\nreceived, state investment representative agencies (or authorized entities) are\r\nresponsible for declaring and submitting revenues generated by transfer of capital\r\nto the state budget in accordance with Article 26 of Circular No.\r\n21/2019/TT-BTC under Form No. 01/CNV attached hereto.

- If revenues generated by the\r\ntransfer of capital increase the amount payable to the state budget after the\r\nfinalization has been approved, within 10 working days from the date on which\r\ndecisions approving finalization of revenues generated by transfer of capital\r\nare issued, state investment representative agencies are responsible for\r\ndeclaring and submitting the surplus to the state budget under Form No.\r\n02/QT-CNV attached hereto.

b) Revenues generated by transfer of option of\r\nadditional shares for state capital and the right to contribute state capital\r\nat enterprises:

Within 10 working days from the date on which the\r\ntime limit for investors to submit money expires, state investment\r\nrepresentative agencies (or authorized entities) are responsible for declaring\r\nand submitting revenues generated by the transfer of option of additional\r\nshares for state capital and the right to contribute state capital at\r\nenterprises to state budget in accordance with Clause 1 Article 39 of Decree\r\nNo. 91/2015/ND-CP under Form No. 01/CNV attached hereto.

Within 10 working days from the date on which\r\ndecisions approving finalization are issued for revenues generated by the\r\ntransfer of option of additional shares for state capital and the right to\r\ncontribute state capital at enterprises, state investment representative\r\nagencies (or authorized entities) are responsible for declaring and submitting\r\nthe surplus (if any) to the state budget under Form No. 02/QT-CNV attached\r\nhereto.

3. Revenues generated by\r\ntransfer of state capital invested in enterprises and assigned to the SCIC by\r\nthe Prime Minister to perform capital transfer and submit to state budget:

...

...

...

4. Revenues generated by\r\nequity amount that exceeds charter capital in operational level 1 enterprises:

Within 10 days from the date on which state\r\ninvestment representative agencies promulgate decisions on submission of the\r\nequity amount that exceeds charter capital of enterprises to the state budget,\r\nenterprises are responsible for declaring and submitting to the state budget in\r\naccordance with Clause 1 Article 2 of Circular No. 36/2021/TT-BTC dated May 26,\r\n2021 of the Minister of Finance under Form No. 01/CLVCSH-VDL attached hereto.

5. Revenues generated by other\r\nforms of arrangement or transfer of ownership:

a) Selling enterprises:

Within 10 working days from the date on which state\r\ninvestment representative agencies approve finalization of revenues generated\r\nselling the entire enterprise, state investment representative agencies (or\r\nauthorized entities) are responsible for declaring and submitting revenues\r\ngenerated by the sale to the state budget under Form No. 02/QT-SXCDK attached\r\nhereto after subtracting costs under Article 31 of Decree No. 23/2022/ND-CP.

b) Converting enterprises whose charter capital is\r\nwholly held by the State to multi-member limited liability companies:

Within 10 working days from the date on which\r\ncompetent authorities approve finalization of revenues generated by enterprise\r\nconversion which also coincides with the date on which multi-member limited\r\nliability companies are issued Enterprise registration certificate for the\r\nfirst time, state investment representative agencies (or authorized entities)\r\nare responsible for declaring and submitting revenues generated to enterprise\r\nconversion to state budget under Form No. 02/QT-SXCDK attached hereto after\r\nsubtracting costs under Article 38 of Decree No. 23/2022/ND-CP.

Article 8. State budget expenditure

1. Based on estimates of state\r\nbudget expenditure approved by competent authorities, financial authorities of\r\nthe same level shall grant capital from state budget (depending on state budget\r\nmanagement level) to incur recurrent expenditure of enterprises and public\r\nservice providers and incur state budget investment for enterprises following\r\nprocedures of the law pertaining to state budget.

...

...

...

Article 9. Dealing with amounts payable to the\r\nFund that arise before the effective date of Decree No. 148/2021/ND-CP

1. Keep amounts mentioned\r\nunder Article 11 and Article 12 of Decree No. 148/2021/ND-CP in central\r\ngovernment budget and local government budget.

2. Central state investment\r\nrepresentative agencies are responsible for reviewing and determining amounts\r\npayable to the Fund (including principal and late payment interest) for\r\nrevenues generated by transfer of ownership of enterprises and public service\r\nproviders and revenues generated by transfer of state capital at enterprises\r\ndecided by central state investment representative agencies or assigned by the\r\nPrime Minister to transfer ownership, capital and informing Ministry of Finance\r\nin writing to keep in central government budget in accordance with Clause 2\r\nArticle 11 of Decree No. 148/2021/ND-CP.

Amounts payable to the Fund include amounts payable\r\nin enterprises where state capital has been fully exhausted, enterprises where\r\nstate investment representation has been transferred to the Committee for\r\nManagement of State Capital at Enterprises, and enterprises where state\r\ninvestment representation has been transferred to the SCIC (including SCIC\r\nenterprises where capital has been fully exhausted).

3. Provincial People’s\r\nCommittees are responsible for reviewing and determining amounts payable to the\r\nFund (including principal and late payment interest) for revenues generated by\r\ntransfer of ownership of enterprises and public service providers, transfer of\r\nstate capital at enterprises where provincial People’s Committees decide on\r\nownership transfer, and transfer of capital in order to record in local\r\ngovernment budget in accordance with Clause 2 Article 12 of Decree No.\r\n148/2021/ND-CP.

Amounts payable to the Fund include amounts payable\r\nin enterprises where state capital has been fully exhausted and enterprises\r\nwhere state investment representation has been transferred to the SCIC\r\n(including SCIC enterprises where capital has been fully exhausted) and amounts\r\npayable to the Fund which have not been submitted to the Fund by enterprises or\r\nlocal governments.

4. With respect to enterprises\r\nwhere state investment representation has been transferred to the SCIC by\r\ncentral state investment representative agencies or provincial People's\r\nCommittees (including SCIC enterprise where capital has been fully exhausted),\r\nthe SCIC is responsible for:

a) cooperating with central state investment\r\nrepresentative agencies and provincial People’s Committees mentioned under\r\nClause 2 and Clause 3 this Article in reviewing and providing documents\r\nrelating to amounts payable to the Fund that arise before the effective date of\r\nDecree No. 148/2021/ND-CP;

b) ordering investment representatives of the SCIC\r\nto request enterprises or request enterprises (with respect to enterprises\r\nwhere capital has been fully exhausted) to submit amounts payable to the Fund\r\nmentioned under Clause 2 and Clause 3 of this Article to the state budget.

...

...

...

a) Record in central government budget for\r\nprincipal and late payment interest after interest has been exempted (if any)\r\nof central-affiliated enterprises where state investment representation has\r\nbeen transferred to the SCIC.

a) Record in central government budget for\r\nprincipal and late payment interest after interest has been exempted (if any)\r\nof central-affiliated enterprises where state investment representation has\r\nbeen transferred to the SCIC.

6. Regarding advance amounts\r\nmade from the Fund for the purpose of capital transfer in accordance with Point\r\ndd Clause 19 Article 2 of Decree No. 140/2020/ND-CP before April 1, 2022 and\r\ndetermined as expenditure of the Fund, state investment representative agencies\r\nshall, based on finalization of revenues generated by capital transfer, proceed\r\nas follows:

a) If revenues generated by capital transfer and\r\nadvance amounts made for the purpose of capital transfer are higher than the\r\nrealistic costs related to capital transfer, finalize and submit the surplus to\r\nstate budget.

b) If revenues generated by capital transfer and\r\nadvance amounts made for the purpose of capital transfer are lower than the\r\nrealistic costs related to capital transfer, state investment representative\r\nagencies shall request the state budget in writing to cover the difference.

Article 10. Dealing with late payment interest\r\npayable to the fund that arises before effective date of Decree No.\r\n148/2021/ND-CP

1. Late payment interest that\r\narises before April 1, 2022 is determined using the following formula:

Late payment interest = Principal debt x Number of\r\ndays past the due date x 0,03%/day

In which:

...

...

...

- In case of enterprises that\r\nequitize in accordance with regulations promulgated before the effective date\r\nof Decree No. 126/2017/ND-CP, late payment interest of revenues payable\r\ngenerated by equitisation (including revenues generated by initial sale of\r\nshares) shall be calculated starting after 60 days from the date on which\r\nenterprises are issued with Enterprise registration certificate for the first\r\ntime.

2. Enterprises that have paid\r\ntheir principal debt shall be eligible for exemption from late payment interest\r\nin accordance with Appendix IV attached to Decree No. 148/2021/ND-CP, in which:\r\n

a) If an enterprise suffers losses and/or\r\naccumulated losses by the time in which it is considered for exemption from\r\nlate payment interest, the exemption from late payment interest shall be\r\nconsidered and granted for each financial year, in which:

- If the enterprise suffers\r\nlosses and/or accumulated losses by the end of a financial year (after covering\r\nthe losses with profit in that year), the enterprise is exempted from late\r\npayment interest for that year.

- If the enterprise makes a\r\nprofit but is then considered a loss after taking into account late payment\r\ninterest of amounts payable to the Fund (after excluding compensations and\r\nliabilities of Boards of Members, Boards of Directors, and groups, individuals\r\nrelating to the late payment if any), the enterprise is exempted from late\r\npayment interest which equals the losses they incur in the year.

- State investment\r\nrepresentative agencies shall rely on annually audited financial statements of\r\nthe enterprise to consider and decide accordingly.

b) If an enterprise has submitted to state budget\r\nor to account designated by state investment representative agencies instead of\r\nthe Fund, late payment interest shall cease to be calculated from the date of\r\nsubmission.

c) Competent authorities are responsible for\r\napproving finalization of equitisation at the time in which the enterprise is\r\nofficially considered a joint-stock company within the time limit regulated by\r\nregulations on equitisation. If competent authorities fail to approve\r\nfinalization in a timely manner which causes the enterprise to submit to the\r\nFund past the deadline, late payment interest shall not be calculated for the\r\ndays on which finalization is approved past the approval deadline.

d) If an equitized enterprise does not have any\r\nadditional cash flow which causes them to fail to submit to the Fund in a\r\ntimely manner when they reassess actual value of the state capital at the time\r\nin which their enterprise value is determined and when they are officially\r\nconsidered a joint-stock company, the enterprise is exempted from late payment\r\ninterest for:

...

...

...

- The additional amount of\r\nstate capital caused by re-evaluation of financial investment and securities\r\ninvestment (if any) at the time in which the enterprise officially converts to\r\na joint-stock company.

- The additional amount of\r\nstate capital caused by assets from elsewhere received by the enterprise\r\n(including construction projects) and recorded as an increase of state capital\r\nin accordance with regulations and law on management and use of state capital\r\nfrom the date on which enterprise value is determined to the date on which the\r\nenterprise officially converts to a joint-stock company.

3. Amounts payable to the Fund\r\nby the end of March 31, 2022 shall be kept in central government budget in\r\naccordance with Clause 2 Article 11 of Decree No. 148/2021/ND-CP and local\r\ngovernment budget in accordance with Clause 2 Article 12 of Decree No.\r\n148/2021/ND-CP after reviewing, determining, and dealing with interest\r\nexemption in accordance with this Circular.

4. Entitlement to decide\r\nexemption from late payment interest

a) Central state investment representative agencies\r\nand provincial People’s Committees shall decide on exemption from late payment\r\ninterest for enterprises (including enterprises where state capital has been\r\nfully exhausted) under Clause 2 Article 13 of Decree No. 148/2021/ND-CP and be\r\nresponsible for their decisions.

b) The Committee for Management of State Capital at\r\nEnterprises shall decide on exemption from late payment interest for\r\nenterprises where state investment representation has been transferred to the\r\nSCIC (including SCIC enterprises where capital has been fully exhausted) on the\r\nbasis of report and consolidation of the SCIC.

Ministries, ministerial agencies, Governmental\r\nagencies, and provincial People’s Committees that act as state investment\r\nrepresentative agencies prior to transferring state investment representative\r\nto the SCIC shall decide on exemption from late payment interest for\r\nenterprises where equitisation finalization has not been approved at the time\r\nin which the enterprise officially convert to joint-stock companies before\r\nApril 1, 2022 on the basis of report and consolidation of the SCIC.

5. Ministries, ministerial\r\nagencies, Governmental agencies, and provincial People’s Committees are\r\nresponsible for cooperating with Committee for Management of State Capital at\r\nEnterprises in reviewing and deciding on exemption from late payment interest\r\nfor enterprises where state investment representation has been transferred to\r\nthe SCIC and within competence of the Committee for Management of State Capital\r\nat Enterprises.

6. Committee for Management of\r\nState Capital at Enterprises and central state investment representative agencies\r\n(for enterprises prior to being transferred to the SCIC) shall decide on\r\nexemption from late payment fine after obtaining remarks of Ministry of\r\nFinance.

...

...

...

IMPLEMENTATION

Article 11. Responsibilities for implementation

1. Central state investment\r\nrepresentative agencies and provincial People’s Committees are responsible for:\r\n

a) adhering to responsibilities under Clause 3\r\nArticle 14 of Decree No. 148/2021/ND-CP and this Circular.

b) implementing or requesting authorized entities\r\n(if any) to register taxpayers, declare, and submit revenues in accordance with\r\nthe Law on Tax Administration and this Circular.

c) inspecting and supervising the management and\r\nuse of expenses made from state budget in accordance with Decree No. 148/2021/ND-CP\r\nand this Circular.

d) consolidating and reporting results of reviewing\r\namounts payable to the Fund, dealing with late payment interest payable to the\r\nFund and sending to Ministry of Finance for presentation to the Prime Minister\r\nin accordance with Point d Clause 1 Article 14 of Decree No. 148/2021/ND-CP.

d) sending reports on equitisation and divestment\r\nof state capital to tax authorities directly overseeing enterprises and public\r\nservice providers according to Point b Clause 3 Article 9 and Appendices No. 4\r\nand 5 attached to Circular No. 36/2021/TT-BTC for revenues generated by\r\nequitisation and divestment of state capital payable to the state budget.

2. Enterprises, public service\r\nproviders, and relevant organizations and entities, while declaring and\r\nsubmitting revenues under Decree No. 148/2021/ND-CP and Article 7 hereof, are\r\nresponsible for:

...

...

...

b) strictly and adequately adhering to regulations\r\non report, staying under inspection, examination, and supervision of competent\r\nauthorities in accordance with regulations on budget, tax, and relevant law\r\nprovisions.

c) submitting reports on payment of revenues\r\ngenerated from equitisation to overseeing tax authorities in accordance with\r\nClause 4 Article 34 of Decree No. 150/2020/ND-CP, Clause 7 Article 17 of\r\nCircular No. 32/2021/TT-BTC.

d) assuming accountability for documents and data\r\nof request for expenses from the state budget and report data of request for\r\ndecision on exemption from late payment fine from competent authorities (if\r\nany).

3. Tax authorities are\r\nresponsible for:

a) collecting amounts in accordance with Article 3 and\r\nArticle 6 of Decree No. 148/2021/ND-CP and Article 7 hereof.

b) guiding, popularizing, enable organizations and\r\nenterprises that pay amounts under Clause 1 Article 6 of Decree No.\r\n148/2021/ND-CP and Article 7 hereof to declare and submit amounts to the state\r\nbudget in accordance with the Law on Tax Administration, Decree No.\r\n148/2021/ND-CP, and this Circular.

4. State Treasury is\r\nresponsible for:

Controlling and making expenses in accordance with\r\nDecree No. 148/2021/ND-CP, this Circular, and relevant legislative documents.

Article 12. Implementation

...

...

...

2. Regulations\r\non submitting revenues generated by transfer of state capital and revenues\r\ngenerated by equitisation of level 1 enterprises to the Fund under Clause 7\r\nArticle 9, Clause 2 Article 10, Clause 1, Clause 3 Article 11, Clauses 2, 6,\r\nand 7 Article 12, Article 15, Clause 6, Clause 7 Article 17, Clause 3 Article\r\n19 of Circular No. 32/2021/TT-BTC and Appendices No. 8, 9, 10, 11, 12 attached\r\nto Circular No. 32/2021/TT-BTC; Clause 2 Article 25 of Circular No.\r\n21/2019/TT-BTC are amended so that such revenues are submitted to the state\r\nbudget instead.

3. Regulations\r\non submitting revenues generated by level 2 enterprises whose charter capital\r\nis wholly held by level 1 enterprises to the Fund under Clause 7 Article 9,\r\nClause 2 Article 10, Clause 1, Clause 3 Article 11, Clauses 5, 6, and 7 Article\r\n12, Clause 2 Article 14, Clause 6, Clause 7 Article 17, Clause 3 Article 19,\r\nClause 4 Article 20 Circular No. 32/2021/TT-BTC and Appendices No. 8, 9, 10,\r\n11, and 12 attached to Circular No. 32/2021/TT-BTC; Clause 2 Article 25 of\r\nCircular No. 21/2019/TT-BTC are amended so that such revenues are submitted to\r\nthe level 1 enterprises instead.

4. Annul\r\nCircular No. 184/2012/TT-BTC dated October 25, 2012 of the Minister of Finance.\r\n

5. If legislative documents\r\nreferred to under this Circular are amended or replaced, the newer documents\r\nshall prevail.

6. Difficulties that arise\r\nduring the implementation of this Circular should be promptly reported to\r\nMinistry of Finance./.

PP. MINISTER
\r\n DEPUTY MINISTER
\r\n
\r\n
\r\n
\r\n
\r\n Nguyen Duc Chi