Thông tư 31/2018/TT-BTC hướng dẫn việc xử lý tài sản hình thành từ nhiều nguồn vốn khi hợp tác xã, liên hợp tác xã giải thể, phá sản

THE MINISTRY OF FINANCE 

Circular No. 31/2018/TT-BTC dated March 30, 2018 of the Ministry of Finance on the settlement of assets acquired from various sources of capital when cooperatives and cooperative unions are dissolved or declared bankrupt

Pursuant to the Law on Cooperatives dated November 20, 2012;

Pursuant to the Law on Bankruptcy dated June 19, 2014;

Pursuant to the Government’s Decree No. 87/2017/ND-CP dated July 26, 2017 defining functions, tasks, powers and organizational structure of Ministry of Finance;

Pursuant to the Government’s Decree No. 193/2013/ND-CP dated November 21, 2013 elaborating the Law on cooperatives;

Pursuant to the Government’s Decree No. 107/2017/ND-CP dated September 15, 2017 on amendments to the Government’s Decree No. 193/2013/ND-CP dated November 21, 2013 elaborating the Law on cooperatives;

At the request of the Director of the Corporate Finance Department;

Minister of Finance promulgates a Circular providing guidance on settlement of assets acquired from various sources of capital when cooperatives and cooperative unions are dissolved or declared bankrupt.

Article 1. Scopeof adjustment

This Circular provides guidance on settlement of assets (including liquidation of assets) acquired from various sources of capital (including financial assistance grants or subsidies given by the Government; annual investment and development funds; offered and donated amounts which are defined as undivided assets; other capital and assets which are defined as undivided assets in the charter, and capital contributions by members) when cooperatives and cooperative unions are dissolved or declared bankrupt.

Article 2.Subject of application

1. Cooperatives and cooperative unions (hereinafter referred to as “cooperatives”) that are duly established and operating under regulations of the Law on cooperatives.

2. Authorities, organizations and individuals involved in the settlement of assets acquired from various sources of capital when cooperatives are dissolved or declared bankrupt as mentioned in Article 1 herein.

Article 3. Rules for settlement of assets acquired from various sources of capital when a cooperative is dissolved or declared bankrupt

1.For the purposes of efficiency and avoiding wasting assets, assets acquired from various sources of capital of a cooperative, when it is dissolved or declared bankrupt, shall be settled in the following order: Firstly, assets shall be transferred to cooperatives or administrative agencies, public service providers or state-owned enterprises (hereinafter referred to as “state organizations”) among which other cooperatives located in the same district shall be given priority so as to serve public interests of local residential community; if assets cannot be transferred to state organizations (including the case where state budget is not enough to pay for the cooperative’s assets as prescribed in Point d Clause 1 Article 5 herein), these assets shall be liquidated or sold to eligible entities; assets may be liquidated when they are fully depreciated, obsolete or damaged and could not be repaired or could not be effectively used after being repaired.

2.Upon the issuance of certification of the cooperative’s dissolution and decision to revoke the Certificate of cooperative registration (in case of voluntary dissolution) or decision to dissolve the cooperative (in case of compulsory dissolution), the dissolution council shall, based on the financial statements prepared by the cooperative as at the date of dissolution and relevant documents, cooperate with the financial agency of the same level with the agency issuing the certificate of cooperative registration and relevant authorities to:

a) Make an inventory of the cooperative’s assets; determine origins of assets and undivided assets; determine ratios of financial assistance grants or subsidies given by the Government, the cooperative’s investment and development fund, offered and donated amounts which are defined as undivided assets, other capital and assets which are defined as undivided assets in the charter, and capital contributions by members to the asset’s cost; determine the book value of assets.

b) Perform valuation of undivided assets (with regard to assets which are not recorded in the cooperative’s accounting books when they are transferred to state organizations) and assets liquidated or sold for cash by means of hiring a qualified valuation service provider or establishing the valuation council.

3.When a cooperative is declared bankrupt, its board of directors shall cooperate with the financial agency of the same level with the agency issuing the certificate of cooperative registration, relevant authorities and the receiver, or the enterprise in charge of managing and liquidating assets of the cooperative that is declared bankrupt, to receive, inventory, classify and perform asset valuation procedures as regulated in Clause 2 Article 3 herein.

4.Undivided assets which are the rights to use land plots granted or leased by the Government shall be settled under regulations of the Law on land.

5.In case documents and materials for determining the origin of an asset or the ratio of each source of capital to the asset s cost are not available, such asset shall be considered as an undivided asset acquired from the financial assistance grants or subsidies given by the Government and settled in accordance with regulations in Point a Clause 1 Article 21 of the Decree No. 193/2013/ND-CP.

6.Tax liabilities incurred due to the selling or liquidation of assets must be paid in accordance with applicable laws and regulations.

Article 4. Settlement of assets when a cooperative is dissolved or declared bankrupt

1.Transfer of assets

a) The power to make decision to transfer assets:

The People s Committee of the same level with the agency issuing the certificate of cooperative registration shall issue a decision to transfer the cooperative’s assets to another cooperative or a state organization in the same district at the request of the dissolution council or the board of directors of the cooperative that is declared bankrupt. The transfer of assets to a cooperative or a state organization situated in another district shall be subject to decision of the Provincial-level People s Committee (or its authorized agency).

b) Parties to the transfer of assets:

An asset shall be transferred between the transferor and the transferee in the presence of the agency issuing certificate of cooperative registration, the financial agency of the same level with the agency issuing the certificate of cooperative registration and the receiver or the enterprise in charge of managing and liquidating assets of the cooperative that is declared bankrupt.

c) Asset transfer procedures:

The transfer of assets shall be carried out according to the decision to transfer the cooperative s assets specified in Point a Clause 1 of this Article and duly recorded according to the Form No. 01 enclosed herewith. The record includes information about the parties to the transfer of assets, detailed description of each asset, its book value or value determined by the qualified valuation service provider (if the asset is not recorded in the cooperative’s accounting books), and its value determined according to each source of capital.

-Increase or decrease in assets and capital shall be duly recorded according to applicable accounting policy;

-The ownership or rights to use assets must be registered in accordance with applicable laws and regulations.

2.Asset liquidation

a) The power to make decision to liquidate assets:

The People s Committee of the same level with the agency issuing the certificate of cooperative registration shall issue a decision to sell or liquidate the cooperative’s assets at the request of the dissolution council or the board of directors of the cooperative that is declared bankrupt.

b) Liquidation method:

Based on the asset’s value determined by a qualified valuation service provider, the dissolution council, or the board of directors of the cooperative that is declared bankrupt, shall cooperate with the receiver, or the enterprise in charge of managing and liquidating assets of the cooperative that is declared bankrupt, to plan the asset disposition (including selling activities for recovering assets and scrap materials) in the form of auction sale as regulated in the Law on property auction.

An asset whose revalued amount is less than VND 2,000,000 may be disposed of without holding an auction.

c) Reporting liquidation results:

The dissolution council, or the board of directors of the cooperative that is declared bankrupt, shall submit a complete report on liquidation results to the People s Committee of the same level with the agency issuing the certificate of cooperative registration for treating proceeds of disposition. The report clearly specifies proceeds of disposition of assets and the costs involved the asset disposition plan (including inventory and revaluation of assets, holding auction sale and other expenses). The amounts that remain after paying taxes as regulated shall be distributed according to each source of capital from which an asset is formed.

Article 5. Financial obligations that arise from transfer, disposition and liquidation of assets acquired from various sources of capital when a cooperative is dissolved or declared bankrupt

1.Fulfillment of financial obligations by the transferor and transferee:

The cooperative that transfers assets shall record a decrease in assets and capital (classified by each source of capital, including financial assistance grants or subsidies given by the Government, investment and development fund, offered and donated amounts which are defined as undivided assets, other capital and assets which are defined as undivided assets in the charter, and capital contributed by members of the cooperative) in accordance with regulations of the Law on cooperatives and applicable accounting policy. The transferor and the transferee must fulfill financial obligations that arise from the transfer of assets of a cooperative that is dissolved or declared bankrupt according to the following provisions:

a) With regard to assets acquired from the financial assistance grants or subsidies given by the Government:

-The transferee that is a cooperative shall record an increase in assets and state capital in accordance with regulations of the Law on cooperatives and applicable accounting policy.

-The transferee that is a state-owned enterprise shall record an increase in assets and state capital in accordance with law regulations on management and spending of state funds invested in enterprises and applicable accounting policy.

-The transferee that is an administrative agency or a public service provider shall record an increase in assets in accordance with applicable public sector accounting policies.

b) With regard to assets acquired from the investment and development fund, offered and donated amounts which are defined as undivided assets, or other capital and assets which are defined as undivided assets in the charter, the transferee shall make payment to the cooperative for disposition under regulations of Point b Clause 1 Article 21 of the Government’s Decree No. 193/2013/ND-CP and Clause 3 Article 1 of the Government’s Decree No. 107/2017/ND-CP.

c) With regard to assets acquired from the capital contributed by members of the cooperative, the transferee shall make payment to the cooperative which is recorded as proceeds from dissolution or bankruptcy for settlement under regulations of the Law on cooperatives and the Law on bankruptcy.

d) If the transferee is an administrative agency or a public service provider, the budget of the government of the same level shall be used to pay for the cooperative s assets which are acquired from the investment and development fund, offered and donated amounts which are defined as undivided assets, other capital and assets which are defined as undivided assets in the charter, and capital contributions by members for settlement under regulations in Point b and Point c Clause 1 of this Article and in conformity with regulations of the Law on state budget.

If the budget of the government of the same level is not enough to pay for the cooperative’s assets, such assets shall not be transferred but disposed of or liquidated under regulations of Clause 2 Article 4 herein.

dd) The transferee is liable to cover any reasonable costs involved in transferring the cooperative’s assets as regulated by law.

2.Treating proceeds of disposition or liquidation of assets:

The remainder of proceeds of disposition or liquidation of assets after deducting disposition or liquidation costs and taxes as regulated shall be distributed in proportion to each source of capital. To be specific:

a) The remaining proceeds from disposition of assets acquired from the financial assistance grants or subsidies given by the Government shall be paid to the budget of the government of the same level with the agency issuing the certificate of cooperative registration under regulations of Point a Clause 1 Article 21 of the Government’s Decree No. 193/2013/ND-CP.

b) The remaining proceeds from disposition of assets acquired from the investment and development fund, offered and donated amounts which are defined as undivided assets, or other capital and assets which are defined as undivided assets in the charter shall be treated under regulations of Point b Clause 1 Article 21 of the Government’s Decree No. 193/2013/ND-CP and Clause 3 Article 1 of the Government’s Decree No. 107/2017/ND-CP.

c) The remaining proceeds from disposition of assets acquired from the capital contributed by members of the cooperative shall be accounted for as proceeds from dissolution or bankruptcy for settlement under regulations of the Law on cooperatives and the Law on bankruptcy.

3.If capital and assets of a cooperative that is dissolved or declared bankrupt is not enough to pay off debts, it is allowed to use proceeds from transfer, disposition and liquidation of assets acquired from various sources of capital as prescribed in Clause 1 and Clause 2 of this Article to pay off debts under regulations of Clause 2 Article 21 of the Government’s Decree No. 193/2013/ND-CP.

Article 6.Effect

1. This Circular takes effect on May 14, 2018.

2. Any difficulties that arising in the course of implementation of this Circular should be reported to the Ministry of Finance for consideration./.

For the Minister

The Deputy Minister

Tran Van Hieu