Chương II Thông tư 38/2014/TT-BTC: Quy định cụ thể

Chapter II

SPECIFIC PROVISIONS

Article 3. Registration of practice by valuers

1. A valuer is not allowed to carry out the registration of practice as valuer for two valuation enterprises or more at the same time.

2. The enterprise shall submit applications for registration of practice for its valuers in accordance with regulations in Point c Clause 1 Article 14 of the Government’s Decree No. 89/2013/ND-CP. An application for registration of practice as valuer includes:

a) The application form for registration of practice as a valuer for the valuation enterprise, which is made according to the template provided in the Appendix No. 01 enclosed herewith and certified by the enterprise’s legal representative or his/her authorized person;

b) The certified copy of the valuer’s ID card issued by the Ministry of Finance;

c) The certified copy or true copy of the document on termination of the labour contract signed with the previous valuation enterprise, if any;

d) The certificate of completion of a training course in valuation as regulated by the Ministry of Finance;

dd) Documents, which must be still valid for at least 02 months, proving the permitted stay in Vietnam as regulated by the law on entry, exit and residence of foreigners in Vietnam if the to-be-registered valuer is a foreigner;

e) The copies of the labour contract and its appendixes (if any) signed by and between the valuation enterprise and the to-be-registered valuer;

g) Other relevant documents (if any).

3. The valuer must be responsible for the information provided in the submitted documents. The legal representative of the valuation enterprise, or his/her authorized person, shall consider and check the documents included in the submitted application so as to ensure the eligibility of each to-be-registered valuer and sign the application form for registration of practice as a valuer for the valuation enterprise. The application form for registration of practice as a valuer for the valuation enterprise shall not be signed if the valuer is ineligible as regulated by laws.

4. If the valuation enterprise wants to register for another valuer, regulations in Clause 2 of this Article shall apply. If the valuation enterprise wants to apply for the cancelation of registration of practice for a valuer, it must submit the certified copy or true copy of the document on termination of the labour contract signed with that valuer.

5. Within 15 days from the receipt of the sufficient application submitted by the valuation enterprise, the Ministry of Finance shall give a Notice of eligible valuer. The valuer is allowed to practice the valuation profession at the valuation enterprise only after he/she obtains the Notice of eligible valuer from the Ministry of Finance.

Article 4. Issuance and re-issuance of certificate of eligibility to provide valuation service

1. An application for issuance or re-issuance of the certificate of eligibility to provide valuation service shall include the documents prescribed in Article 14 of the Decree No. 89/2013/ND-CP.

If the valuation enterprise carries out procedures for registration of valuation service for its branch as regulated in Article 41 of the Price Law, it must submit the certified copy of the certificate of branch registration and the enterprise’s letter of authorization for the branch. Such letter of authorization must specify that the branch of the valuation enterprise is authorized to entirely or partially carry out valuation operations. The valuation enterprise’s branch that carries out a part of valuation operations is not allowed to issue valuation certificates. The valuation enterprise’s branch that carries out all of valuation operations is allowed to issue valuation certificates.

The application forms for issuance and re-issuance of the certificate of eligibility to provide valuation service is made according to the templates provided in the Appendix No. 02 and the Appendix No. 03 enclosed herewith.

2. The valuation enterprise shall be responsible for the accuracy of the submitted application for issuance or re-issuance of the certificate of eligibility to provide valuation service.

3. The valuation enterprise shall submit the application directly or by post to the Ministry of Finance (via the Price Management Department).

Where it is necessary to clarify any information, the Ministry of Finance (the Price Management Department) shall have the right to request the valuer or the valuation enterprise to provide explanation or documents for checking and verifying information and other documents included in the application.

If the application is satisfactory, the Ministry of Finance (the Price Management Department) shall issue or re-issue the certificate of eligibility to provide valuation service within the time limit prescribed in Article 15 of the Decree No. 89/2013/ND-CP. The certificate of eligibility to provide valuation service is made according to the template provided in the Appendix No. 04 enclosed herewith.

If the valuation enterprise fails to provide explanatory documents or provides documents which cannot prove the accuracy of documents included in the submitted application, the Ministry of Finance (the Price Management Department) shall have the right to refuse the application. In case of refusal of an application, the Ministry of Finance (the Price Management Department) shall provide written reasons for such refusal.

Article 5. Maintaining eligibility to provide valuation service

1. During the provision of valuation service, the valuation enterprise must ensure and maintain its eligibility for the certificate of eligibility to provide valuation service; not alter or erase any contents of the certificate of eligibility to provide valuation service; not lease, lend, pledge, trade, transfer or use the certificate of eligibility to provide valuation service for illegal purposes or for purposes other than the prescribed ones; bear the supervision, inspection and comply with decisions issued by competent authorities on the satisfaction of eligibility requirements for providing valuation service and the use of the certificate of eligibility to provide valuation service.

2. The valuation enterprise must give a written notification to the Ministry of Finance upon the occurrence of any changes prescribed in Article 17 of the Decree No. 89/2013/ND-CP. The Ministry of Finance shall receive, update and reconsider the satisfaction of eligibility requirements for providing valuation service by the valuation enterprise in order to give a written response or make a decision on suspension or revocation of the certificate of eligibility to provide valuation service as regulated. Decisions on suspension or revocation of the certificate of eligibility to provide valuation service shall be made according to the templates provided in the Appendix No. 05 and the Appendix No. 06 enclosed herewith.

3. Procedures for application for the certificate of eligibility to provide business valuation service by a wholly state-owned enterprise that is converted into a joint-stock company shall be carried out in accordance with specific regulations of the Ministry of Finance.

4. The Ministry of Finance shall publish the following contents on its website:

a) The list of valuation enterprises and their branches (if any) eligible to provide valuation service and eligible valuers;

b) The list of valuation enterprises and their branches (if any) that have valuation operations suspended or the certificate of eligibility to provide business valuation service revoked or have been warned for dissatisfaction of eligibility requirements for providing valuation service;

c) The list of valuation enterprises that have their valuation operations suspended or terminated.

5. The Minister of Finance shall authorize the Director of the Price Management Department to receive, review, check and notify the list of valuation enterprises eligible to provide valuation service and the list of valuers practicing the valuation profession, and organize the issuance, re-issuance, suspension and revocation of the certificate of eligibility to provide valuation service.

Article 6. Professional liability insurance, establishment and use of professional risk reserve fund

1. The valuation enterprise is required to purchase professional liability insurance or set up the professional risk reserve fund, which is the source for paying compensation for damage (if any) suffered by users of valuation results. Users of valuation results are clients who are offered the valuation service or the third party who concerns the valuation results as certified by the client and specified in the valuation contract by the valuation enterprise.

2. The valuation enterprise may purchase professional liability insurance from insurers or branches of foreign non-life insurance enterprises that legally operate under the laws of Vietnam.

If insurers or branches of foreign non-life insurance enterprises in Vietnam do not provide professional liability insurance services for valuation enterprises, the valuation enterprise is allowed to purchase the professional liability insurance from a foreign insurance enterprise in accordance with applicable laws. The purchase of professional liability insurance for valuation service from a foreign insurance enterprise must be carried out in accordance with Vietnam’s law on insurance business.

Costs of purchasing insurance shall be recorded as business expenses of the valuation enterprise in accordance with applicable laws on corporate income tax.

3. Establishment of professional risk reserve fund:

a) If the valuation enterprise does not purchase professional liability insurance, it must set up the professional risk reserve fund with the minimum amount of money appropriated every year as 1% of revenues from provision of valuation service (VAT-exclusive revenues). Accounting for the professional risk reserve fund shall be the same as that for provision for payables and amounts of money appropriated for reserve fund shall be recorded as business expenses as regulated by laws.

b) When the fund's ending balance is equal to 10% of revenues from the provision of valuation service in the financial year, the appropriation for the professional risk reserve fund in that year is not required. At the end of the financial year, if the fund's balance remains unchanged or positive, the valuation enterprise shall reverse that fund’s balance and set aside the professional risk reserve fund in the following financial year. If the valuation enterprise stops providing valuation service, it must reverse provisions for risks and carry out procedures for payment of corporate income tax as regulated.

4. Compensation for damage:

a) When the valuation enterprise must pay compensation for damage caused for users of valuation results, it shall receive compensation from the insurer or the foreign non-life insurance enterprise's branch operating in Vietnam under terms and conditions of the signed policy. If the valuation enterprise fails to purchase insurance, it must pay compensation for such damage by using the professional risk reserve fund.

b) If the amounts received under the professional liability policy or the balance of the professional risk reserve fund is not enough for paying compensation for damage, the valuation enterprise shall record the deficit as its business expenses as regulated by law.

Article 7. Retention and use of valuation documents

1. Both paper copies and electronic copies of valuation documents must be kept since the valuation certificate is granted.

a) Retention of paper copies of valuation documents:

The valuation enterprise must keep paper copies of the following valuation documents: The valuation contract and the record of completion of the valuation contract (if any), the written request for valuation service, the valuation report, the valuation certificate, all documents supporting the valuation results, and other documents as prescribed in Vietnam valuation standards and applicable laws.

Valuation documents to be kept must be classified and arranged separately in chronologic order and according to each valuation contract or written request for valuation service.

b) Electronic document retention:

Valuation documents to be electronically retained must be systematic and include basic contents of the valuation report, the valuation certificate, attached appendixes and sheets (if any).

2. Paper copies of valuation documents shall be kept for at least 10 years but electronic copies thereof must be kept permanently. The valuation enterprise must adopt measures for ensuring confidentiality, safety, integrity, and ability to access and recover retained valuation documents.

3. Valuation documents shall be accessed and used in the following circumstances:

a) Implement decisions by authorized persons of the valuation enterprise provided that confidentiality of documents must be ensured as regulated in this Article.

b) Serve the inspection and settlement of complaints and disputes arising during the valuation operation; comply with request of the people’s court, the people’s procuracy, investigation agency, inspection agency, state audit agency, the Ministry of Finance and other competent authorities as regulated by laws.

4. Ending the prescribed retention period, valuation documents must be destroyed in accordance with applicable laws.

5. The legal representative of the valuation enterprise must assume responsibility to manage, keep and destroy valuation documents in accordance with applicable laws, including the cases where the valuation enterprise is dissolved or declared bankrupt.

Article 8. Reporting

1. Reporting by each valuation enterprise:

a) Periodic reports: The valuation enterprise shall submit annual report made according to the template of the Report on the valuation enterprise’s situation and certain valuation indicators in the year provided in the Appendix No. 07 enclosed herewith to the Ministry of Finance (via the Price Management Department). Annual reports must be submitted by March 31 of the year following the reporting year.

b) Ad hoc reports: The valuation enterprise must submit ad hoc reports at the written request of the Ministry of Finance or a competent authority as regulated by laws.

2. Reporting by a valuation professional organization:

a) Periodic reports: The valuation professional organization shall submit annual report made according to the template of the Report on situation and operating strategies of the valuation professional organization provided in the Appendix No. 08 enclosed herewith to the Ministry of Finance (via the Price Management Department). Annual reports must be submitted by January 31 of the year following the reporting year.

b) Ad hoc reports: The valuation professional organization must submit ad hoc reports to the Ministry of Finance (if any) or at the written request of the Ministry of Finance in case of inspection, settlement of complaints or denunciations or handling of administrative violations or disputes concerning valuation operations.

3. Valuation enterprises, branches of valuation enterprises and valuation professional organizations must be responsible for the accuracy and truthfulness of submitted reports.

Article 9. Controlling quality of valuation service

Each valuation enterprise is liable to formulate and implement the procedures for control of quality of its valuation services in accordance with regulations enshrined in Vietnam valuation standards and the Ministry of Finance’s guidelines (if any).

Article 10. Valuation database

1. Price management agencies at central level (including the Ministry of Finance and relevant Ministries) and at provincial level (Provincial Departments of Finance) shall:

a) Establish, manage and operate the valuation database system in order to serve the fulfillment of state management duties within the ambit of their assigned duties and powers; provide information (if any) to other organizations and individuals as regulated by laws;

b) Make annual estimate of costs of establishing, managing and operating the valuation database, and then submit it to the competent authority for giving approval in conformity with regulations of the Law on state budget. Funding shall be allocated to each unit according to its annual budget estimate in accordance with applicable laws.

2. Each valuation enterprise shall establish the valuation database to serve its valuation operations.

3. Central and provincial valuation database includes:

a) Legislative documents on price, valuation and relevant laws;

b) Information and documents about the valued assets as regulated by the law on valuation;

c) Information about the inspection and settlement of complaints and denunciations, and actions against administrative violations against regulations on valuation;

d) Other relevant information.

4. Information and documents serving the establishment of the valuation database include both historical and existing data. To be specific:

Information and documents concerning the valued assets provided by valuation enterprises or state agencies carrying out valuation operations;

b) Information and documents collected by price management agencies during surveys, and those provided by competent authorities;

c) Information and documents acquired from information-providing organizations or individuals.

Central and provincial price management agencies may also collect information provided by enterprises carrying out price registration and declaration, and information and documents provided by valuation enterprises in accordance with applicable laws and in other necessary cases to serve the state management.

5. The Ministry of Finance shall establish, manage and operate the national price and valuation database center in a manner that ensures its compatibility and connection with price and valuation database systems of ministries, local governments and others; instruct the collection, updating and provision of price and valuation-related information to serve the state management and at request of organizations and individuals as regulated; comply with regulations on confidentiality of information.

Supervisory ministries, provincial Departments of Finance and valuation enterprises shall report and update information on the national valuation database.

Article 11. Valuation operations carried out state agencies

Valuation operations carried out by state agencies shall follow procedures set forth in Section 4 Chapter II of the Decree No. 89/2013/ND-CP and the following guidelines:

1. Publishing of information concerning the state property to be valued as regulated in Point b Clause 1 Article 23 of the Decree No. 89/2013/ND-CP shall be made on the website of the agency managing such to-be-valued property or of the Ministry of Finance, or on the website of the Price Management Department, or on other means of mass media.

2. Central ministries and Provincial-level People's Committees shall make decisions on high-value state property as regulated in Point d Clause 1 Article 23 of the Decree No. 89/2013/ND-CP.

3. Depending on the property to be valued and required valuation progress, the design of a valuation plan which is one of valuation procedures as prescribed in Clause 1 Article 25 of the Decree No. 89/2013/ND-CP may be bypassed.

4. A valuation report or response to the valuation request includes the following contents:

a) Particulars of the valued property (name, legal and technical specifications);

b) Date of valuation;

c) Purposes of valuation;

d) Legal grounds for valuation;

dd) Valuation principles;

e) Valuation approach;

g) Valuation results;

h) Valuation problems and solutions (if any).

5. Decision on establishment of the valuation council, minutes of meetings of the valuation council and valuation report are made according to templates provided in the Appendixes No. 09, No. 10 and No. 11 enclosed herewith.

Article 12. Costs of valuation operations carried out state agencies

1. Funding for covering costs of valuation operations carried out by state agencies as prescribed in Clause 1 Article 32 of the Decree No. 89/2013/ND-CP shall be included in the annual budget estimates of competent agencies as regulated.

2. Cost items and levels associated with valuation operations carried out by state agencies:

a) Expenses for domestic and overseas working trips (if any) and expenses for organizing conferences shall conform to the Ministry of Finance’s regulations;

b) Expenses for night duties and overtime works serving the valuation of property shall conform to applicable laws;

c) Expenses for hiring inspection organizations to inspect and evaluate technical – economic status and quality of property and hiring valuation organizations (if any) shall conform to concluded agreements;

d) Expenses for collecting information, translating documents, purchasing office stationery, and travelling expenses shall be actual expenses incurred in each specific case of valuation as regulated by laws;

dd) The head of the state agency in charge of conducting valuation shall, within his/her competence, consider and decide other costs associated with valuation operations which are not mentioned in Points a, b, c, d Clause 2 of this Article or request competent authorities to make decision on these costs in accordance with applicable laws.

3. A state agency competent to carry out valuation operations shall make annual estimate of budget for its valuation operations, and submit it to a competent authority for consideration and approval. If a state agency must perform additional duties according to decisions by competent authorities, it may make supplementary budget estimates in accordance with applicable law on state budget.

4. Payment of costs of valuation operations carried out by state agencies must be made in accordance with applicable regulations of the law on state budget and in an economic and effective manner.

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