| MINISTRY OF FINANCE -------- | SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom - Happiness --------------- |
| No: 127/2012/TT-BTC | Ha Noi, August 08, 2012 |
CIRCULAR
GUIDANCE ON STANDARDS, CONDITIONS AND PROCEDURES FOR RECOGNITION OF ENTERPRISE VALUE DETERMINATION SERVICES PROVIDER
Pursuant to Decree No. 118/2008/ND-CP of November 27, 2008 of the Government regulating functions, duties, powers and organizational structure of Ministry of Finance;
Pursuant to Decree 101/2005/ND-CP of the Government of August 03, 2005 of the Government on valuation;
Pursuant to Decree No. 59/2011/ND-CP July 18, 2011 by the Government on the transformation of enterprises with 100% state-owned companies to the joint-stock companies;
At the proposal of the Director of Department of Finance of banking and financial institutions;
Minister of Finance issues Circular guiding the standards, conditions and procedures to recognize the enterprise value determination services provider for equitization as follows:
Ch apter 1.
GENERAL PROVISIONS
Article 1. Scope and subject of application
1. This Circular makes guidance for the standards, conditions and procedures to recognize the enterprise value determination services provider to enterprises with 100% state-owned companies transformed to the joint-stock companies (hereafter referred to as valuation and consultation organization)
2. The subjects of this Circular is the valuation and consultation organizations, the competent agencies to decide the equitization plans and other related organizations and individuals.
Article 2. Explanation of terms
In addition to terms defined in Decree No. 59/2011/ND-CP of July 18, 2011 by the Government on the transformation of enterprises with 100% state-owned to joint-stock company (hereinafter referred to as Decree No. 59/2011/ND-CP), in this Circular, the following terms are construed as follows:
1. "The competent agency to decide equitization plan" is the competent agency to decide the equitization plan of enterprises with 100% state capital as stipulated in Decree No. 59/2011/ND-CP.
2. "Competent State agencies to examine and inspect" includes inspection agency of all levels, the State auditing agencies and other competent agencies in the inspection and examination of the operation of enterprise value determination for enterprises with 100% state capital transformed to joint-stock companies.
3. "Enterprise operation Permit" means the certificate of business registration or investment certificate or permit of establishment and operation of the enterprise specified in the Enterprise Law, Investment Law and relevant laws .
Chapter 2.
STANDARDS, CONDITIONS AND PROCEDURES FOR RECOGNITION OF VALUATION CONSULTATION ORGANIZATION
Article 3. Standards, conditions of valuation consultation organization
1. The domestic valuation consultation organization register to provide the equitized enterprise value determination consultation services must meet the following criteria and conditions:
a) Being audit companies, securities companies and valuation enterprises having valuation functions and satisfying the conditions for the organization and operation of each type of enterprise in accordance with the laws of Vietnam;
b) There is professional process of enterprise value determination in accordance with Decree No. 59/2011/ND-CP, the relevant guiding documents and other amended and supplemented documents (if any);
c) Having at least five (05) years of experience in one (01) of the following areas of operation: valuation, auditing, accounting, financial consultation, consultation of enterprise ownership transformation. During the three (03) most recent years to the time of submission of enterprise value determination services, performing the service provision implementation business valuation, each year to perform services in the areas mentioned above at least thirty (30) contracts;
d) Having at least three (03) valuators who are granted valuation card by the Ministry of Finance and register the valuation practice in the enterprise;
dd) Meeting the criteria of quantity and quality of staff working in the area and sectors in which the organizations are operating under the provisions of Point a of this clause;
e) Not being sanctioned for administrative violations with aggravating circumstances by the conclusions of the agencies making decision on sanction in the area of valuation and enterprise value determination in five (05) years preceding the year of registration to perform the enterprise value determination.
Where organizations requesting to be provided the enterprise value determination services are inspected and examined and concluded to have committed violations in valuation operation and enterprise value determination and in the process of dossier transfer under the regulations of law shall not be qualified and eligible for registration for valuation consultation organization under the provisions of this Circular.
2. The foreign valuation consultation organizations not establishing legal status in Vietnam are only allowed to provide the equitized enterprise value determination services upon collaboration, partnership with the domestic valuation determination organizations that are recognized by the Ministry of Finance under provisions in this Circular. Conditions for foreign organizations to be entitled to collaboration and partnership with the domestic valuation consultation organizations include:
a) Being organization operating in the areas of valuation, auditing, accounting, financial consultation and consultation of enterprise ownership transformation under the law of the country where its headquarters is located.
b) Having at least five (05) years of experience in one of the following areas: valuation, auditing, accounting, securities, financial consultation and consultation of enterprise ownership transformation.
Article 4. Dossier for registration to become valuation organization (new registration)
1. Application for registration to become valuation organization under the Form in Annex 1 attached to this Circular.
2. Certified copy of the enterprise operation permit.
3. Professional process of enterprise value determination is expected to apply ensuring the consistency with the provisions of the law.
4. Making report on the results of service provision contracts made in the areas of valuation, auditing, accounting, financial consultation, consultation of enterprise ownership transformation in three (03) years preceding the year of registration of valuation advisory services under the form in Annex 2 attached to this Circular;
5. List of valuators registering the valuation practice at the enterprise, together with the following documents:
a) Certified copy of valuator card granted by the Ministry of Finance;
b) Copy of labor contract signed between the valuation consultation organization and valuator;
6. Financial statements of the two (02) years preceding the year of registration to become valuation organization. The financial statements must be audited by independent auditing organizations operate legally operating in Vietnam;
7. Written commitment of the legal representative of the enterprise concerning:
a) Ensuring the accuracy, honesty of dossiers and documents registering the implementation of valuation consultation as prescribed in this Article.
b) Application of the professional process for enterprise value determination registered under provisions in Clause 3 of this Article upon recognized as the valuation consultation organization and this professional process is consistent with the regulations of current law.
c) Not committing violations of regulations of the law as prescribed in this Circular.
Article 5. Process and procedures to recognize the newly-registered valuation consultation organization.
1. The recognition of the valuation consultation organization first registered shall be annually considered and announced by the Ministry of Finance.
2. Organizations qualified and eligible as prescribed in Article 3 of this Circular in need of becoming the valuation consultation organization for the following year shall send one (01) set of dossier under the provisions of Article 4 of this Circular to the Ministry of Finance. The time of dossier receipt time is from October 1 to October 31 every year.
3. Within five (05) working days after receiving the dossier, the Ministry of Finance shall check the completeness and validity of the dossier and require the enterprise to supplement it (if any).
4. Based on the criteria and conditions defined in Article 3 of this Circular, the Finance Ministry shall consider and approve the valuation consultation organization qualified for providing the enterprise value determination services Where the dossier does not satisfy the conditions, the Ministry of Finance shall have written notice to the enterprise, stating the reasons therefor.
5. The Ministry of Finance shall publish a list of valuation consultation organizations applied from January 01 to December 31 of the following year in writing and on the website of the Ministry of Finance.
Article 6. Annual assessment of operation of valuation consultation organizations.
1. Every year, the valuation consultation organizations recognized by the Ministry of Finance shall be considered and assessed in order to continue providing the enterprise value determination services in the following year. The assessment contents include:
a) Ensuring criteria and conditions of the valuation consultation organizations prescribed at Point a, b, d, dd and e, Clause 1, Article 3 of this Circular.
b) Fully and on schedule implementing the report of operation result to the Ministry of Finance prescribed in Article 9 of this Circular.
2. Assessment process of the operation maintenance of the valuation consultation organizations:
a) From October 01 to October 31 of each year, the valuation consultation organization shall send the report of operation result prescribed in Article 9 of this Circular.
b) Based on reports of the valuation consultation organizations provided at Point a of this Clause, the reports and information of the organizations specified in Article 11, Article 12 and Article 13 of this Circular, the Ministry of Finance shall consider and review the conditions of the valuation consultation organizationunder Clause 1 of this Article. The qualified valuation consultation organizations shall continue to be provided with the enterprise value determination services in the subsequent year and published in the list of valuation consultation organizations by the Ministry of Finance as prescribed in this Circular.
3. The valuation consultation organization is eliminated from the list of valuation consultation organizationsunder the provisions of this Article shall be permitted to continue performing the contracts signed and being carried out and not entitled to sign new contract since the Ministry of Finance give the notice from eliminating from the list of valuation consultation organizations
4. The valuation consultation organization eliminated from the list of valuation consultation organizations shall not be entitled to make re-registration within three (03) subsequent years
Article 7. Cases of elimination from the list of valuation consultation organizations
1. The valuation consultation organization shall be automatically eliminated from the list of valuation consultation organizations recognized by the Ministry of Finance in the following cases:
a) Being revoked the enterprise operation Permit.
b) Changing business line and no longer having business functions prescribed at Point a, Clause 1, Article 3 of this Circular.
c) Performing the division, separation, merger, consolidation, transformation or dissolution.
d) Having legal violations with signs of criminal offenses according to the conclusions of the competent State agencies on examination and inspection.
2. Based on the reports of valuation consultation organization prescribed in Article 9 and other documents held by the relevant organizations prescribed in Article 11, Article 12 and Article 13 of this Circular, the Ministry of Finance shall make decision on the elimination of the valuation consultation organization from the list of valuation consultation organizations.
