Circular No. 16/2023/TT-BTC of Vietnam: Adding regulations that the date of announcement of auction results refers to the day on which the results of an auction are announced?
- Adding regulations that the date of announcement of auction results refers to the day on which the results of an auction are announced?
- Amending the rules and authority of making decisions on and method of transfer of state capital at joint stock companies or multiple-member limited liability companies?
- Amending regulations on adjustment of charter capital for active enterprises in Vietnam?
Adding regulations that the date of announcement of auction results refers to the day on which the results of an auction are announced?
According to the provisions of Clause 5, Article 1 of Circular No. 16/2023/TT-BTC, the date of announcement of auction results refers to the day on which the results of an auction are announced as follows:
Date of announcement of auction results refers to the day on which the results of an auction are announced at one of the places specified in clause 1, Article 16 of the Regulations on transfer of capital of enterprises of which charter capital is wholly held by the State, state capital invested in joint-stock companies, multi-member limited liability companies promulgated together with Circular No. 36/2021/TT-BTC.
Circular No. 16/2023/TT-BTC of Vietnam: Adding regulations that the date of announcement of auction results refers to the day on which the results of an auction are announced? (Image from the Internet)
Amending the rules and authority of making decisions on and method of transfer of state capital at joint stock companies or multiple-member limited liability companies?
Pursuant to the provisions of Clause 2, Article 1 of Circular No. 16/2023/TT-BTC amending the rules and authority of making decisions on and method of transfer of state capital at joint stock companies or multiple-member limited liability companies as follows:
Rules and authority of making decisions on and method of transfer of state capital at joint stock companies or multiple-member limited liability companies shall be subject to Article 38 of the Decree No. 91/2015/ND-CP; clause 15 and 16 of Article 1 in the Decree No. 32/2018/ND-CP; clause 18 and 19 of Article 2, and clause 4 and 5 of Article 5 in the Decree No. 140/2020/ND-CP.
According to the aforesaid regulations; regulations laid down in the Standards of Business Valuation issued by the Ministry of Finance; regulations of laws on valuation and other relevant laws, the organization having competence in business valuation of an enterprise shall counsel a competent authority to consider setting the starting price applied to transfer of shares of that enterprise, including the (cultural and historical) value of its brand constituting its business value which is determined according to the legal business valuation methods.
When transferring shares to another organization or individual that is not a member of a multiple-member limited liability company (after the company’s members refuse to purchase or do not buy all of these shares), the owner's representative agency shall direct the agent of the state capital portion at the multiple-member limited liability company to comply with the regulatory provisions of Article 38 in the Decree No. 91/2015/ND-CP; clause 15 and clause 16 of Article 1 in the Decree No. 32/2018/ND-CP; clause 18 and clause 19 of Article 2, and clause 4 and 5 of Article 5 in the Decree No. 140/2020/ND-CP.
The owner's representative agency shall decide to apply the capital transfer method in accordance with the Charter of the enterprise in order to ensure all shares to be transferred are divested and the maximum number of members stipulated in the Law on Enterprises does not exceed.
Amending regulations on adjustment of charter capital for active enterprises in Vietnam?
Pursuant to the provisions of Point b, Clause 1, Article 2 of Circular No. 36/2021/TT-BTC regulating the adjustment of charter capital for active enterprises in Vietnam as follows:
For active enterprises, the adjustment of charter capital shall be subject to the provisions of Article 11 of Decree No. 91/2015/ND-CP, Clause 4, Article 1 of Decree No. 32/2018/ND-CP and Clause 7, Article 2 of Decree No. 140/2020/ND-CP.
Enterprises whose charter capital has been approved by competent authorities since 2020 or earlier must review and develop plans to determine charter capital and additional investment in charter capital as prescribed in Clause 21, Article 2 of Decree No. 140/2020/ND-CP for submission to competent authorities for approval.
When determining the indicator "the most recently approved charter capital before the time of re-determination" specified in Article 9 of Decree No. 91/2015/ND-CP and Clause 5, Article 2 of Decree No. 140/2020/ND-CP, enterprises shall refer to the actual equity available on their financial statements as of December 31, 2020, based on which profits have been distributed according to regulations.
Actual equity is determined by paid-in capital (No. 411), Development Investment Fund (No. 418) and capital construction investment (No. 422) on the Balance Sheet of each enterprise. For enterprises on the list of businesses to be equitized that are approved by competent authorities, when determining the charter capital, the addition to charter capital from the state budget and the Support Fund for business reorganization and development shall not be included.
Pursuant to the provisions of Clause 1, Article 1 of Circular No. 16/2023/TT-BTC as follows:
Amending and supplementing certain Articles of the Circular No. 36/2021/TT-BTC as follows:
1. Amending point b of clause 1 of Article 2 as follows:
“b. For active enterprises, the adjustment of charter capital shall be subject to the regulatory provisions of Article 11 of the Decree No. 91/2015/ND-CP, clause 4 of Article 1 in the Decree No. 32/2018/ND-CP, and clause 7 of Article 2 in the Decree No. 140/2020/ND-CP of the Government.
For any enterprise that neither requires any addition to its charter capital nor prepares a plan for determination of its charter capital and additional investments in its charter capital specified in clause 7 of Article 2 in the Decree No. 140/2020/ND-CP, its owner's representative agency shall be responsible for checking, deciding and directing it to make payment of the difference between equity and charter capital to the state budget on condition that such payment does not affect its solvency and debt repayment obligations. Within 10 days from the day on which its owner’s representative agency issues a decision, it shall be responsible for remitting that difference between equity and charter capital into the state budget and, at the same time, accounting for reduction in paid-in capital according to current regulations and, at the same time, accounting for reduction in corresponding components of its equity”.
Thus, from May 8, 2023, for active enterprises, the adjustment of charter capital shall be subject to the regulatory provisions of Article 11 of the Decree No. 91/2015/ND-CP, clause 4 of Article 1 in the Decree No. 32/2018/ND-CP, and clause 7 of Article 2 in the Decree No. 140/2020/ND-CP of the Government.
Circular No. 16/2023/TT-BTC takes effect from May 8, 2023.
Nguyễn Thị Hồng Nhung
