CIRCULAR

PROVIDING GUIDELINES ON FINANCIAL SETTLEMENT AND ENTERPRISE VALUATION UPON EQUITIZATION OF STATE-OWNED ENTERPRISES AND SINGLE-MEMBER LIMITED LIABILITY COMPANIES 100% CHARTER CAPITAL OF WHICH IS HELD BY STATE-OWNED ENTERPRISES

Pursuant to the Law on Enterprises No.68/2014/QH13 dated November 26, 2014;

Pursuant to the law on management and use of state capital invested in enterprises No.69/2014/QH13 dated November 26, 2014;

Pursuant to Decree No.87/2017/ND-CP dated July 26, 2017 of the Government on functions, duties, rights and organizational structure of the Ministry of Finance;

Pursuant to Decree No.126/2017/ND-CP dated November 16, 2017 of the Government on equitization of state-owned enterprises and single-member limited liability companies 100% charter capital of which is held by state-owned enterprises;

At the request of Director of Department of Corporate Finance;

The Minister of Finance promulgates a Circular providing guidelines for financial settlement and enterprise valuation in equitization of state-owned enterprises and single-member limited liability companies 100% charter capital of which by state-owned enterprises.

Chapter I

GENERAL PROVISIONS

Article 1. Scope and regulated entities

1. Scope:

This Circular provides guidelines for financial settlement and enterprise valuation in equitization of state-owned enterprise and single-member limited liability companies 100% charter capital of which is by state-owned enterprises as prescribed in Decree No.126/2017/ND-CP dated November 16, 2017 of the Government on equitization of state-owned enterprises and single-member limited liability companied with 100% capital invested by state-owned enterprises (hereinafter referred to as “Decree No.126/2017/ND-CP”).

2. Regulated entities:

a) Enterprises prescribed in Clause 2 and 3 in Article 2 of Decree No.126/2017/ND-CP (hereinafter referred to as “equitized enterprises”).

a) State agency which exercise rights and obligations of the state capital owner on behalf of the state in the enterprise (hereinafter referred to as “representative agency”) and relevant agencies, organizations and individuals prescribed in Clause 1 and 4 in Article 2 of Decree No.126/2017/ND-CP.

Article 2. Rules for financial settlement and enterprise valuation upon equitization

1. According to the list of equitized enterprises approved by competent authorities, the equitized enterprise must proactively settle its financial issues in accordance with applicable law provisions and submit a land-use plan to competent authorities in compliance with the law on land and the law on settlement of state-owned lands before the equitization.

2. When receiving the equitization decision from competent authorities, the equitized enterprise must check and classify its assets, funding sources and settle its financial issues at the date of enterprise valuation in accordance with regulations in Article 13 of Decree No.126/2017/NĐ-CP and guidelines provided in Section I and II in Chapter 2 of this Circular In order to use as the basis for making a financial statement at the date of enterprise valuation and equitization.

3. Where the actual value of the equitized enterprise is lower than payables upon the completion of financial settlements and enterprise valuation, the situation shall be handled as prescribed in Clause 2 in Article 4 of Decree No.126/2017/ND-CP.

4. The financial settlement and enterprise valuation must be carried out explicitly and transparently in accordance with the State regulations. During financial settlement and enterprise valuation, any organization and individual that fails to comply with applicable regulations and thus causes damage or loss of state assets must take administrative responsibility to pay compensation or face criminal charges in compliance with provisions of laws.

5. Where it is found that the omission or misstatement of assets or liabilities of the equitized enterprise during the asset inventory and debt comparison is caused by subjective reasons, resulting in a decrease in the value of such enterprise and state capital, such equitized enterprise and relevant organizations and individuals must remit all the value of omitted assets or liabilities into the Business Arrangement and Development Support Funds and take responsibility for any deliberate omission or misstatement of assets or liabilities during the asset inventory in accordance with provisions of laws. Omitted payables into state budget must be declared and remitted into state budget in compliance with provisions of laws.

6. The representative agency shall take responsibility to handle all financial issues during the equitization as prescribed in Decree No.126/2017/ND-CP and financial issues arising regarding the enterprise equitization after the official date of equitization (if any).

7. Foreign currency monetary items at the date of enterprise valuation and official date of equitization, including cash, cash equivalents, accounts receivable and payable, deposits and collaterals will be revaluated depending on the exchange rate prescribed in current corporate accounting standards and regulations.

8. The equitized enterprise is required to prepare financial statements and handle its finance as prescribed in Article 21 of Decree No.126/2017/ND-CP when the business registration certificate for a joint stock company is granted to such enterprise.

If the state capital contributed to the equitized enterprise is reduced according to adjustment decision by a competent authority when it is granted the business registration certificate for a joint stock company in proportion to its losses as prescribed in Clause 7 in Article 21 of Decree No.126/2017/ND-CP, such loss shall not be deducted from taxable income of such equitized enterprise in the following years in accordance with provisions of the law on corporate income tax and relevant guiding documents.

9. The enterprise valuation consultancy must valuate the enterprise by using the asset-based approach prescribed in Section 2 in Chapter III of Decree No.126/2017/ND-CP dated November 16, 2017 of the Government and specific guidelines in this Circular and adopt other suitable methods as prescribed in the law on prices and price appraisal to valuate the enterprise and make sure that at least 2 different enterprise valuation methods are selected and submitted to the representative agency for consideration.

Chapter II

FINANCIAL SETTLEMENT UPON EQUITIZATION AND ENTERPRISE VALUATION BY USING ASSET-BASED APPROACH

SECTION I. ASSET INVENTORY AND LIABILITY COMPARISON

Article 3. Asset inventory and classification

The equitized enterprise must inventory and classify its assets, funding sources and funds under management or in use at the date of enterprise valuation and cooperate with the consultancy (if any) in inventorying and classifying assets.

At the date of enterprise valuation, the equitized enterprise must make an inventory listing the accurate quantity, actual status, quality and value of assets in hand used and managed by such enterprise; check cash in hand and cash at bank; determine the asset or cash surplus or deficit compared to the figures recorded in the accounting book and reason out such surplus or deficit, responsibility of relevant individuals and compensation amounts in compliance with provision of laws.

3. Assets listed in the inventory shall be classified into the following categories:

a) Operating assets-

b) Non-operating, redundant or slow-moving assets and assets awaiting liquidation.

c) Assets generated from welfare and reward funds (if any)

d) Leased or borrowed assets, supplies held, processed, distributed or deposited for other enterprises or assets contributed as capital under a joint venture or association agreement and other assets not owned by the equitized enterprise.

dd) Assets attached directly to lands that must be disposed according to the disposition methods approved by competent authorities in accordance with provisions of the law on disposition of public property.

e) Assets owned by revenue-generating service providers (including houses and lands of these service providers as prescribed in the law on disposition of public property) and operating assets of such service providers

g) Assets awaiting settlement decision from competent authorities

h) Financial investment by land-use rights (including contribution to joint ventures, limited liability companies and others)

i) Other assets (if any)

Article 4. Liability comparison, verification and classification

The equitized enterprise shall compare, verify and classify liabilities as prescribed in Article 15 and 16 of Decree No.126/2017/ND-CP and make lists of debtor and creditor-based liabilities at the date of enterprise valuation and the following contents:

1. Accounts receivable:

a) Compare and verify debts receivable of each debtor including:

- All debts that are due, not due or overdue; with regard to commercial banks, all accounts receivables recorded in off-balance sheet must also be compared and verified.

- Bad debts identified as overdue debts specified in the contracts and undue debts of business entities (such as sole proprietorships, cooperatives and credit institutions) going bankrupt or going through formalities for dissolution or of debtors that are missing, prosecuted, on trial, or escaping or serving a sentence or dead. Clarify the responsibility of relevant organizations or individuals with regard to debts with unidentified debtors.

Documents proving doubtful debts must be available as prescribed in Clause 3 in Article 7 of this Circular.

b) Review all contracts to determine advances paid to suppliers of goods and services that have been recorded as business expenses, including payments for house rents, land rents, purchasing goods, long-term insurance, salaries, wages, etc.

c) If debts cannot be compared and verified despite sufficient documents at the date of enterprise valuation, the equitized enterprise must notify it to a competent authority for considering and handling as prescribed in Clause 2 in Article 15 of Decree No.126/2017/ND-CP.

Accounts payable to organizations or individuals including due debts, undue debts and overdue debts at the date of enterprise valuation:

a) Based on contracts, debit notes, check and make a list of creditor-based loans; determine tax debts and other payables to state budget, analyze loans under loan agreements (domestic or foreign loans), secured loans, loans from bond issuance; undue, due or overdue debts; principals, interests, debts not required to be repaid.

b) Debts not required to be repaid include:

- Debts to bankrupt or dissolved enterprises but agencies or individuals inheriting rights as creditors cannot be identified according to bankruptcy or dissolution plans approved by competent authorities.

- Debts to a dead person whose legal heirs cannot be identified in accordance with provisions of the law on inheritance

- Debts to other creditors that are overdue but not verified by such creditors. In this case, the equitized enterprise must send a written notice of debt verification directly to the creditor and publish such information on means of mass media at least 10 working days before the enterprise valuation.

Article 5. Comparison and verification of financial investments, amount distributed and contributed capital

1. The equitized enterprise shall make a list of financial investments and profits distributed, including capital contributed under joint-venture or association agreements, money given in exchange for stock, capital contributed to limited liability companies, capital invested in single-member limited liability company owned by such enterprise and unrealized profits, that are profits received from capital contribution as specified in resolution of general shareholders meetings or by member councils of capital-receiving entities but not yet cashed in by the time of enterprise valuation.

2. Calculate the quantity and value of purchased securities such as shares, bonds, etc; quantity of shares acquired by the equitized enterprise

3. With regards to capital contributed under joint-venture or association agreements, the equitized enterprise shall make a list of contributor-based contributed capital and notify the contributor to continue executing or complete the signed agreements.

Article 6. Checking, comparing, verifying and classifying assets and debts in equitization of state commercial banks

The checking, evaluation and classification of assets which are capital in cash, finance leasing assets and liabilities of state commercial banks shall comply with regulations in Article 3, 4 and 5 of this Circular and the following instructions:

1. Check and compare deposit of customers, deposit certificates such as treasury bills, exchange bills and bonds as follow:

a) Check in detail each deposit recorded in the accounting book.

b) Compare and verify the balance of deposit by customer that is juridical person.

c) Compare saving deposit, personal deposit and certificates of deposit with those recorded in the accounting book of the bank and compare directly with customer. Comply with regulations in Clause 1 in Article 16 of Decree No.126/2017/ND-CP if failing to compare such deposits with the customers.

2. Compare assets that are outstanding loan including outstanding loan recorded in the off-balance sheet as follows:

a) According credit profiles at the commercial bank, make a list of customers with outstanding loan and the amount of such outstanding loan in detail under each loan contract.

b) Compare the figures in the loan portfolio with those recorded in the accounting book of the commercial bank; compare the outstanding loan with each customer to get their confirmation about such outstanding loan.

For individual customer, if failing to make comparison with the customer, the commercial bank must compare the figures with those recorded in the accounting book kept at such bank.

c) Where there is a difference between the figures specified in the loan portfolio with those recorded in the accounting book and those confirmed by the customers, the commercial bank must reason out such difference and clarify the responsibility of relevant organizations or individuals for handling in accordance with the State regulations.

3. Classify uncollected debts eligible to be applied provision for credit loss as regulated by the State Bank of Vietnam

4. With regards to finance leasing assets, make comparison with the customers to verify the debt payables for each finance leasing asset.

SECTION II. FINANCIAL SETTLEMENT AT THE DATE OF ENTERPRISE VALUATION AND THE DATE OF EQUITIZATION

Article 7. Financial settlement at the date of enterprise valuation

1. The enterprise shall settle its financial issues on the date of enterprise valuation (before the date for giving advice on enterprise valuation) in accordance with regulations in Article 14 through 20 in Decree No.126/2017/ND-CP and detailed instructions specified in Clause 2, 3 and 4 in this Article.

2. According to the results of asset inventory and classification, with regard to asset surplus or deficit, the equitized enterprise must reason out such surplus or deficits and handle as follows:

a) For asset deficit, the equitized enterprise shall determine the responsibility of relevant organizations or individuals for material compensation in accordance with the law in force; the value of asset deficit after being deducted from the amount compensated by organizations or individuals (if any) must be recorded to the business results of the enterprise when such enterprise makes financial statement at the date of enterprise valuation.

b) For asset surplus, the equitized enterprise must reason out the surplus and responsibility of relevant organizations and individuals for handling in according with provisions of the law in force; the value of the asset surplus that are not paid must be recorded to the business results of the enterprise when such enterprise makes financial statement at the date of enterprise valuation.

3. Accounts receivable, exclusive of outstanding loan of the equitized commercial bank, will be identified as uncollectible debts and excluded from the enterprise value if they could be conclusively proved uncollectible through relevant documents, specifically as follows:

a) Accounting book, documents or documentation proving that the debts fail to be collected at the date of debt recovery or debt accounting on the accounting book of the equitized enterprise such as: economic contracts, loan agreements, loan commitments, contract liquidation (if any); liability comparison (if any); application for liability comparison or past due reminder letter sent by the enterprise bearing the post stamp or verification of the delivery organization; liability declaration and relevant documents.

b) With regard to business entities:

- Debtors going bankruptcy as judged by the Court in compliance with the law on bankruptcy

- Debtors stop running business, escaping or being dissolved according to verification by the agency issuing the decision on enterprise establishment or business registration organization or supervisory tax authority; or the debts have been brought to the Court by the enterprise as regulated and judged by the Court or verified by the judgment enforcement authority to be uncollectible as such enterprise has no asset or the value of its asset fail to make up the debts.

- Debts that are written off as decided by competent authorities in accordance with provisions of laws; difference of loss for debt sale decided by competent authorities

c) With regard to individual debtors:

- Certified copy or duplicate of original dead certificate or verification of dead debtors by local authorities

- Pursuit order or verification of escaping or prosecuted debtors or debtors serving a sentence by legislative body

- Confirmation by local authorities of debtors that are claimed missing by the Court in accordance with the Civil Law

d) Debts of which the estimated debt recovery expenses are greater than debt value approved and cared by the representative agency in compliance with provisions of laws.

4. The equitized enterprise shall not revise the figures recorded in the accounting book made at the date of enterprise valuation when it settles financial issues as prescribed in Clause 1, 4 and 5 in Article 17 of Decree No.126/2017/ND-CP. These financial settlements are only applied for determining the real value of state capital of the equitized enterprise as the basis for calculating the reserve price as prescribed in Article 24 of Decree No.126/2017/ND-CP.

Article 8. Financial settlement at the official date of equitization

1. The value of asset surplus or deficit compared to the enterprise value (book value) decided and published by the representative agency shall be handled as prescribed in Clause 4 in Article 10 of Decree No.126/2017/ND-CP.

2. Accounts receivable and payable at the issuance date of initial business registration certificate for joint stock company shall be handled as prescribed in Article 15 and 16 in Decree No.126/2017/ND-CP.

3. Welfare and reward funds arising from the date of enterprise valuation to the issuance date of initial business registration certificate for joint stock company shall be used and managed by the equitized enterprise as regulated. The unused funds (if any) shall be inherited and used by the new joint stock company.

Article 9. Transfer from the equitized enterprise to joint stock company

1. The equitized enterprise shall prepare a document and transfer to the joint stock company according to the decision approving financial final accounts; final accounts prepared for proceedings from equitization; final accounts prepared for equitization expenses and for fundings supporting redundant employees (if any); decision publishing the real value of state capital at the official date of equitization issued by the representative agency and financial statement made based on the financial settlement results at the official date of equitization.

2. The steering committee and its assistants shall cooperate with each other in urging and supervising the transfer from the equitized enterprise to joint stock company within 30 days from the day on which the financial statement is made as prescribed in Clause 5 in Article 21 of Decree No.126/2017/ND-CP. The transfer must be recorded in writing and associated with all documents relating the equitization in the presence of the representative agency. The transfer record must specify rights and obligations of relevant parties and remained issues to be handled after the transfer (if any), specifically as follows:

a) Transfer dossier includes:

- The enterprise valuation dossier and decision on enterprise value publication

- The financial statement at the official date of equitization that has been audited and approved by competent authorities

- A report of final accounts prepared for equitization expenses and accounts payables to the Business Arrangement and Development Support Funds

- A decision approving the value of state capital at the date of equitization issued by competent authorities

- A record of asset and capital transfer made at the issuance date of initial business registration certificate for joint stock company associated with a detailed table of liabilities transferred to the joint stock company and unsolved financial issues (if any)

- Reports of labor situation and plans for land use of the enterprise approved by competent authorities

b) Transferers and transferees:

- Representative of representative agency

- Representative of the economic group, corporation, parent company in case the equitized enterprise is a member of the economic group, corporation or a subdiary, Director, Chief Accountant, controller and representative of the trade union of the equitized enterprise - representative of the transferers

- Chairperson of the Board of Directors, Director, Chief Accountant and representative of the trade union of the joint stock company – representative of the transferees

- Representative of the State Capital Investment Corporation if the equitized enterprise transfers the power to represent the state capital to the State Capital Investment Corporation

c) The transfer record must bear all signatures of the transferers and transferees and must specify:

- the asset situation, capital amount and numbers of employees at the date of transfer

- rights and obligations of the joint stock company

- remained issues to be solved

3. The joint stock company must complete all dossiers of assets and lands and send them to competent authorities as regulated to transfer the right of asset use and management from the equitized enterprise to the joint stock company; transfer lands and pay the land levy, ask for issuance or change of land use right certificate in accordance with the law on lands and documents guiding the enforcement of such law.

Section III. ENTERPRISE VALUATION BY USING ASSET-BASED APPROACH

Article 10. Asset valuation

The enterprise valuation using asset-based approach shall be carried out as prescribed in Section 2 in Chapter III of Decree No.126/2017/ND-CP and the following instructions:

1. The real value of each type of asset shall be calculated in Vietnam dong depending on the list of assets recorded in the accounting book of the equitized enterprise.

2. With regard to assets in kind:

a) Only assets to be used by the joint stock company are revaluated

b) The real value of an asset equals (=) its historical cost according to the current market price at the date of enterprise valuation multiplied by (x) its remaining quality at the date of enterprise valuation. Where:

- The market price can be:

+ the price of brand-new asset of the same type that is recently purchased or traded on the market including delivery and installation expenses (if any) If such asset is deemed particular and not traded on the market, the buying price is equal to the buying price of an equivalent brand-new asset of the same origin country and same capacity or equivalent functions. In case there is no equivalent asset, the market price will be equal to the asset price recorded in the accounting book including assets invested or purchased by foreign currency.

+ for buildings and structures, the unit price of capital construction or the investment rate shall be decided by competent authorities at the nearest date of the enterprise valuation date. Where no regulation on such price is found, the market price is equal to the book price after considering the slippage factors in capital construction.

For a building or structure that has been completed within a 3-year-period before the date of enterprise valuation, the market price is the value specified in the construction cost statement approved by a competent authority. If a building or structure has been put into operation while its construction cost statement is not yet approved by a competent authority, the market price will be the price recorded in the accounting book.

- The remaining quality of the asset shall be determined in a certain percentage of the quality of a brand-new asset of the same type purchased or constructed in consistent with State regulations on conditions for safety use and operation of the asset assuring the product quality and environment hygiene under the guidance of ministries in charge of economic-technical sector management. Where no regulation issued by the State is found, the quality of assets shall be identified as follows:

+ The remaining quality of machinery and equipment, means of transport, transmission equipment, equipments and instruments used in management and other fixed assets shall be determined according to their actual status but not lower than 20% of the quality of brand-new assets of the same type;

+ The remaining quality of buildings and structures shall not be lower than 30% of the quality of the ones of a same type newly constructed.

c) Fully depreciated assets, working instruments, equipments used in management of which all value has been allocated to the business costs but held for use by the joint stock company must be re-valuated to count towards the enterprise value but not lower 20% of the value of assets, instruments or equipments recently purchased.

d) Assets in kind in forms of planting forests, gardens must be valuated in accordance with regulations in Joint Circular No.17/2015/TTLT-BNNPTNT-BTC dated April 22, 2015 of the Ministry of Agriculture and Rural Development and Ministry of Finance and amended or replaced documents (if any) in the enterprise valuation.

dd) Assets generated under provisions in the Building-Operate-Transfer contract, engineering infrastructure must be valuated as prescribed in Clause 6 and 7 in Article 27 of Decree No.126/2017/ND-CP.

e) The value of assets generated from funding by state budget for serving public purposes that are managed and used by the equitized enterprise shall not count towards the enterprise value.

3. Monetary assets including cash in hand, deposit and valuable papers such as treasury bills, bonds, etc of the equitized enterprise shall be calculated as follows:

a) Cash in hand shall be calculated depending on the fund checklist.

b) The deposit shall be calculated according to the balance compared and verified with the bank where the deposit account is opened.

c) Valuable papers shall be valuated depending on the current market price. If no transaction is found, the value will be equal to the face value of such papers.

4. Accounts receivable counting towards the enterprise value shall be valuated according to the real balance recorded in the accounting book and after making comparison as prescribed in Article 15 of Decree No.126/2017/ND-CP.

5. Business operation and capital construction in progress as well as expenses relating to compensation, clearance and grading of land shall be calculated depending on the real ones incurred which are being recorded in the accounting book.

6. Short-term and long-term deposit assets shall be valuated according to the balance recorded on the accounting book

Article 11. Valuation of equitized enterprise by using asset-based approach

1. Total real value of the equitized enterprise shall be calculated by using asset-based approach as prescribed in Clause 1 in Article 27 of Decree No.126/2017/ND-CP and specific instructions provided in Article 11 of this Circular (exclusive of the difference in exchange rate due to re-valuation of foreign currency monetary items).

2. The real value of state capital contributed to the equitized enterprise shall be equal to total value of the equitized enterprise prescribed in Clause1 in this Article minus (-) the sum of debts payable (exclusive of the exchange rate difference due to re-valuation of foreign currency monetary items) and the balance of non-business expenditure source (if any).

Chapter III

INFORMATION PUBLICATION AND IMPLEMENTATION PROVISIONS

Article 12. Information publication

The equitized enterprise must publish the information about the equitization as prescribed in Clause 1 in Article 11 of Decree No.126/2017/ND-CP and specific instructions as follows:

1. The equitized enterprise must post the information on its website and send such information to E-Government Portal as well as submit a document to the Ministry of Finance and Business Innovation and Development Steering Committee within 10 workings days from the day receiving decisions or documents of competent authorities on settlement of finance, labor and land regarding the equitization and contents prescribed in Clause 1 in Article 11 of Decree No.126/2017/ND-CP.

2. The equitized enterprise is required to send periodical reports of equitization progress according to the plan approved by competent authorities and posted those reports on the website of such equitized enterprise as well as send them to the representative agency, the Ministry of Finance and Business Innovation and Development Steering Committee before the 5^th date each month.

Article 13. Transferring provisions

1. Enterprises receiving the decision on enterprise value publication but failing to have their equitization plan approved before January 01, 2018 (the date on which the Decree No.126/2017/ND-CP comes into force) must revise the accounting book depending on the results of enterprise valuation published and may continue to undergo the equitization as prescribed in Clause 1 in Article 48 of Decree No.126/2017/ND-CP, except some cases not requiring the adjustments to accounting book depending on the published results of enterprise valuation as decided by competent authorities.

2. For enterprise that is going through valuation process but its value is not published by competent authorities on January 01, 2018, its representative agency shall consider and handle as prescribed in Clause 1 in Article 23 of Decree No.126/2017/ND-CP.

3. For equitized enterprises receiving initial joint stock company registration certificate on or after January 01, 2018, the financial settlement of such enterprise at the official date of equitization must comply with regulations in Decree No.126/2017/ND-CP and instructions provided in this Circular.

According to the land use plan and land price approved by competent authorities, the representative agency shall instruct the enterprise to pay all differences between the value of land use right temporarily counting towards the enterprise value and the value of land use right re-calculated by competent authorities.

4. Enterprises receiving the decision on publication of enterprise value or having their equitization plan approved before January 01, 2018 but not receiving the approval for land use plan from competent authorities must have their land use plan approved before the joint stock companies receive the initial business registration certificate as prescribed in Decree No.167/2017/ND-CP dated December 31, 2017 of the Government on re-arrangement and handling of public property and guiding documents or adjustment documents (if any).

Article 14. Implementation provisions

1. This Circular comes into force from June 18, 2018.

Contents prescribed in this Circular will be applied on January 01, 2018.

2. This Circular replaces Circular No.127/2014/TT-BTC dated September 05, 2014 of the Ministry of Finance which provides guidelines for financial settlement and enterprise valuation in equitization of wholly state-owned enterprises.

3. If any question arises during the implementation, agencies and enterprises shall timely inform the Ministry of Finance for amendment.