Thông tư 138/2010/TT-BTC hướng dẫn chế độ phân phối lợi nhuận đối với công ty trách nhiệm hữu hạn một thành viên do Nhà nước làm chủ sở hữu do Bộ Tài chính ban hành

CIRCULAR

GUIDING THE REGIME FOR PROFIT DISTRIBUTION APPLICABLE TO STATE-OWNED ONE-MEMBER LIMITED LIABILITY COMPANIES

Pursuant to the Law on Enterprise No. 60/2005/QH11 dated November 29, 2005;

Pursuant to the Government's Decree No. 118/2008/NĐ-CP dated November 27, 2008, defining the functions, tasks, powers and organizational structure of the Ministry of Finance;

Pursuant to the Government's Decree No. 25/2010/NĐ-CP dated March 19, 2010 on converting state-owned companies into single member limited companies, and the management of state-owned single member limited companies;

Implementing the direction of the Prime Minister in the Official Dispatch No. 181/VPCP-KTTH dated January 11, 2010 of the Government’s Office on the profit distribution of state-owned single member limited companies; the Ministry of Finance guides the regime for profit distribution applicable to state-owned single member limited companies as follows:

Article 1. This Circular prescribes the profit distribution applicable to state-owned single member limited companies, comprising single member limited companies affiliated to Ministries and People’s Committees of central-affiliated cities and provinces (hereinafter referred to as provincial People’s Committees), parent companies of corporations and general companies (hereinafter referred to as companies), of which the conversion and charters are approved by the Prime Minister, the Ministers, the Presidents of the provincial People’s Committees.  

State Capital Investment Corporation, the Stock Exchange, the Stock Depository Center, credit institutions, and lottery companies are separately regulated.

Article 2. The profit of a company after offsetting the previous year’s loss as prescribed by the Law on Enterprise income tax, and paying enterprise income tax, shall be distributed as follows:

1. Distribute the profit to the contributors under contracts (if any);

2. Offset the loss of the previous years that are no longer able to be deducted from pre-tax profit;

3. Extract 10% to the financial reserve funds; stop extracting when the fund balance reaches 25% charter capital;

4. Establish special funds from the post-tax profit in a ratio prescribed by the State, applicable to special companies of which the fund establishment is compulsory;

5. The residual profit after deducting the amounts prescribed in Clause 1, 2, 3 and 4 this Article shall be distributed in a ratio of the average investors’ capital to the capital raised by the company in that year, in particular:

- The average investors’ capital and the raised capital in a year is the total capital balance of each quarter divided by 4 quarters.

- The balance of investors’ capital at the end of each quarter comprises: the paid-in capital – account 411, Investment and development funds – account 414, and fundamental construction capital – account 441, prescribed in the Decision No. 15/2006/QĐ-BTC dated March 20, 2006 of the Minister of Finance.

The raised capital is the money raised through issuing bonds, taking loans from banks, credit institutions, and other financial institutions, from external organizations and individuals; taking loans from employees, and other forms of capital mobilization as prescribed by law, except for the loans guaranteed by the Government, the Ministry of Finance, and the preferential loans.

Article 3. The profit distributed according to investors’ capital is used as follows:

1. If the company does not have enough charter capital, the profit distributed according to investors’ capital is used for making additional investment to reach the approved amount of charter capital.

2. If the investors’ capital is larger than or equal to the approved charter capital, the owner must cooperate with the Ministry of Finance in making and sending a plan to the Prime Minister for transferring the proportion of profit distributed according to the investors’ capital to the Fund of Central enterprise management.

Article 4. Profit is distributed according to the raised capital as follows:

1. Extract at least 30% to the investment and development fund of the company.

2. 2. Extract and pay reward to the management board of the company, in particular:

2.1. Based on the efficiency of the Member assembly, the President,  and the Board of directors, the reward fund for the management board is established as follows:

Extract up to 5% of the profit distributed according to the raised capital to establish the reward fund for the management board if the duties are successfully performed. The extraction must not exceed 500 million VND (if the company has a the Member assembly), or 200 million VND (if the company does not have a Member assembly);

Extract up to 2.5% of the profit distributed according to the raised capital to establish the reward fund for the management board if the duties are adequately performed. The extraction must not exceed 250 million VND (if the company has a the Member assembly), or 100 million VND (if the company does not have a Member assembly);

If the duties are poorly performed, no reward fund shall be established, even when the company makes profit.

2.2. For special companies that have more investors’ capital than the raised capital, or does not have raised capital, and so the profit distributed according to the raised capital is not sufficient for paying rewards to the management board, the reward fund for the management board may be established as prescribed in Article 8 of this Circular if the management board successfully or adequately performs their duties; the extraction amount is calculated as guided in Clause 2.1 this Article.

2.3. Ministries, provincial People’s Committees, the Member assemblies of corporations and general companies, of which the establishment is approved by the Prime Minister, shall decide a specific rate of extraction for making reward funds for their management boards depending on their efficiency, their rating, and the provisions in this Article.

3. The residual profit shall be distributed to the reward fund and benefit fund depending on the rating of the company, in particular:

- A company rated A may extract up to 3 months of salary to build up the reward fund and benefit fund;

- A company rated B may extract up to 1.5 months of salary to build up the reward fund and benefit fund;

- A company rated c may extract up to 1 month of salary to build up the reward fund and benefit fund;

- A company without rating must not establish any reward fund and benefit fund.

The extraction amount is decided by the Member assembly or the President after consulting the Union Executive board of the company.

4. The residual profit after building up the reward fund and benefit fund as prescribed in Clause 3 this Article shall be used to supplement the investment and development fund of the company.

Article 5. In 2 consecutive years as from starting to make and distribute profit as guided above, if the reward fund and benefit fund a new company (not being converted from a state-owned company) does not reach 2 months of salary if the company is rated A, or 1.5 months of salary if the company is rated B, or 1 month of salary if the company is rated C, it must reduce the investment and development fund to ensure the sufficiency of the reward fund and benefit fund prescribed. The maximum reduction is the entire investment and development fund extracted from post-tax profit made in the fiscal year. In the succeeding years, the company shall distribute its post-tax profit as prescribed in Article 4 of this Circular.

Article 6. For companies established for regularly and sustainably providing public services and products ordered by the State, if the reward fund and benefit fund do not reach the amount prescribed in this Circular when distributing profit through this mechanism, such companies may reduce the investment and development fund, reduce the profit distributed according to the investors’ capital to supplement the reward fund for the management board  and the benefit fund as prescribed. If the sufficiency is still not reached after making the complete deduction, the State shall consider and support:

- 100% of the missing amount if the company is rated A, and the proportion of  revenue from providing public services and products reaches at least 50% of the total revenue.

- 50% of the missing amount if the company is rated A, and the proportion of revenue from providing public services and products reaches less than 50% of the total revenue.

The post-tax profit for establishing the reward fund for the management board and the benefit funds comprises: profit from providing public services and products ordered by the State, or from bidding, and profit from other business.

Article 7. Extracting and establishing reward funds and benefit funds of special companies:

While the special companies of which the investors’ capital is larger than the raised capital, or without raised capital; the companies of which the equitization is approved by competent agencies that have not officially converted the ownership (have not been issued with the Certificate of first business registration in the new form); the companies in bordering areas, on islands, or strategic areas,  that have been performing some economic and social tasks assigned by the State While, or creating employments for the ethnics… is following the regime for distributing post-tax profit as prescribed in Clause 2 and Clause 4 of this Circular, if the reward fund and benefit funds are in adequate because the post-tax profit distributed according to the raised capital is insufficient or unavailable, the reward fund and benefit funds shall be established as follows:

- Extract up to 3 months of salary to build up the funds if the company is rated A and the amount payable to the State budget arising in the year is higher than or equal to that of the previous year;

- Extract up to 1.5 months of salary to build up the funds if the company is rated A and the amount payable to the State budget arising in the year is lower than that of the previous year; or the company is rated B and the amount payable to the State budget arising in the year is higher than or equal to that of the previous year

- Other companies may extract up to 1 month of salary to build up funds (with rating)

- A company without rating must not establish any reward fund and benefit fund.

Article 8. The order for building up the reward fund for the management board and benefit funds of a special company:

- Reduce the investment and development fund to build up the reward fund for the management board and benefit funds in order to reach the amount prescribed in Clause 2.1 Article 4 and Article 7 of this Circular;

- If the investment and development fund is used up and the reward fund for the management board and benefit funds are still insufficient, the company may use up to 50% of the profit distributed according to the investors’ capital to supplement the reward fund for the management board and benefit funds.

Article 9. The company rating,  the performance of the Member assembly, the President, and the Board of directors are determined as prescribed by law.

Article 10. Effect

1. This Circular takes effect on November 05, 2010, and is applicable to the fiscal year 2010. The previous provisions on the profit distribution of state-owned single member limited companies that contradict this Circular are all annulled.

2. Parent companies of corporations, general companies, parent companies in the parent company-subsidiary company relationship must apply this Circular to the profit distribution of the subsidiary companies being single member limited companies 100%-capitalized by parent companies.

3. The companies are recommended to send feedbacks on the difficulties arising during the course of implementation to the Ministry of Finance for consideration and settlement./.

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