Auditors of internal audit departments of enterprises should pay close attention to the audit of assets and capital verification business of restructured enterprises to prevent fraud in the process of assets and capital verification, and pay attention to the following issues when auditing:
(1) Whether the reorganization plan has been approved.
(2) Review the qualification of assets and capital verification agency to see whether it has legal qualification.
⑶ Pay attention to the legality and fairness of the audit report issued by intermediary institutions.
(4) through auditing, prevent the restructured enterprises from buying by surprise, investing indiscriminately, distributing money and goods indiscriminately, and dividing state-owned assets privately, so as to safeguard the authenticity and integrity of the assets of the restructured enterprises.
5] Prevent intermediaries from colluding with enterprises.
[6] Pay attention to the assets written off and trace the reasons for the shortage of assets. The write-off must be approved by SASAC. If the circumstances are serious, it should be handed over to the judicial department for criminal responsibility, and so on.
(B) Issues worthy of attention in asset evaluation
Auditors in internal audit departments of enterprises should also attach importance to all aspects of asset evaluation to prevent underestimation of state-owned assets. In the restructuring of state-owned enterprises, a qualified asset appraisal firm must be hired to evaluate assets and land use rights in accordance with the Measures for the Administration of State-owned Assets Appraisal (the State Council Decree No.91). State-owned holding enterprises should strictly perform the procedures stipulated by relevant laws and regulations when evaluating assets, and transfer the ownership of property rights to non-state-owned investors. Units directly holding state-owned property rights will decide to hire an asset appraisal firm. Intangible assets such as patent rights, non-patented technologies, trademark rights and goodwill of enterprises must be included in the scope of assessment. The evaluation results shall be recognized by the units that approved the restructuring of state-owned enterprises and the transfer of state-owned property rights in accordance with relevant regulations. Internal auditors should pay attention to:
(1) Review the qualifications of the intermediary agencies hired.
(2) Assess the qualifications of personnel.
(3) Whether the evaluation method is in accordance with the provisions of the Measures for the Administration of State-owned Assets Evaluation.
(4) Whether the government participates in the operation.
5] The rationality and correctness of the evaluation results.
[6] Whether there is any act of arbitrarily depressing state-owned assets.
Once whether to get the approval of the relevant departments.
(8) Whether the account adjustment after evaluation is correct.
(3) Problems that should be paid attention to in the property right transfer of restructured enterprises.
The transfer of state-owned property rights of enterprises shall comply with national laws, administrative regulations and policies, which is conducive to the layout and strategic adjustment of the national economic structure, adhere to the principles of openness, fairness and justice, and safeguard the rights and interests of the state and other parties. The review should pay attention to the following issues:
1, the transfer of property rights is not standardized.
The transfer of property rights can be carried out by auction, bidding, agreement transfer and other means stipulated by national laws and regulations. Transfer by agreement: refers to the sales mode in which buyers and sellers know each other's offer price before the transaction, bargain on the terms of the transaction, and finally achieve the transfer of property rights between buyers and sellers. This sales model belongs to directional sales. Bidding auction: the seller sells the property rights of the enterprise to the highest bidder. In this case, the seller only considers the price. Tender sale: the buyer who puts forward the best conditions to the seller sells the property rights of the enterprise. In this case, the buyer must provide certain conditions for future users to purchase property rights from the social and economic aspects (such as ensuring employees' employment and not changing the business scope of the enterprise, etc.). ). Auditors should ensure that the transfer of enterprise property rights meets the legal requirements and there is no violation.
2. The trading places of property rights is not standardized.
The transfer of state-owned property rights of enterprises should be conducted openly in legally established property rights trading institutions, that is, all property rights transactions must enter the market.
In the past, some property rights in the transaction process, because there are no strict regulations, off-exchange transactions have occurred from time to time, and black-box operations are difficult to avoid. Black-box operation is one of the main ways of state-owned assets loss. The over-the-counter transaction of state-owned property rights is opaque and undisclosed, and lacks effective supervision, which is prone to irregular and unfair phenomena. Non-standard OTC transactions are mainly manifested in the following aspects: First, OTC transactions are not open and transparent, and black-box operations and illegal operations are prone to occur during the transfer process, resulting in the loss of state-owned assets, evasion of bank debts, and infringement of employees' rights and interests. Second, over-the-counter transactions are priced by agreement during the transfer process, and there is no mechanism for the market to find the price, and there is no objective basis for judging the rationality of the transfer price; Third, a large number of OTC transactions are prone to artificial division of regions and industries, which is not conducive to the layout and strategic adjustment of the state-owned economy; Fourth, there is a lack of a unified market supervision and restraint mechanism, and there are violations of law and discipline that erode state-owned rights and interests in various ways. According to the Administrative Measures for State-owned Assets Appraisal promulgated by SASAC and the Ministry of Finance, OTC trading is strictly prohibited; It is strictly forbidden for the transferor and the target enterprise to transfer the state-owned property rights without fulfilling the corresponding internal decision-making procedures and examination and approval procedures or beyond their authority.
3. Problems that should be paid attention to in the information announcement of property right transfer.
Before the transfer of state-owned property rights, an announcement on the transfer of property rights shall be issued. The transferor shall announce the transfer of property rights on the websites of industrial and financial newspapers and property rights trading institutions at or above the provincial level, publicly disclose the information on the transfer of state-owned property rights, and solicit the transferee. The announcement period of property right transfer is 20 working days.
In the announcement on the transfer of property rights, the information on the transfer of state-owned property rights of enterprises disclosed by the transferor shall include the following contents:
(a) the basic situation of the transfer target;
(two) the composition of the property rights of the transfer target enterprise;
(3) content decision and approval of property right transfer;
(4) Retrieve the main financial index data recently audited by the target enterprise;
(5) Evaluation, approval or filing of the assets of the transferred target enterprise;
[6] The basic conditions that the transferee should have; (1) has good financial status and ability to pay; ② Good commercial credit; ③ If the transferee is a natural person, it shall have full capacity for civil conduct; (4) Other conditions stipulated by national laws and regulations.
Once other matters that need to be disclosed.
The information announcement must be approved before the public trial. When more than two transferees are produced through public solicitation, the transferor shall negotiate with the property right transaction institution and organize the implementation of property right transaction by auction or bidding.
The auction transfer of state-owned property rights shall be organized and implemented in accordance with the Auction Law of People's Republic of China (PRC) and relevant regulations. It is not allowed to set discriminatory and exclusive terms when collecting the transferee. Some time ago, in the process of restructuring, individual enterprises set up various obstacles for the transferee in order to realize MBO. No company in the world has successfully registered, so the listing and reorganization will be aborted. Finally, the management successfully achieved a cheap acquisition. Since the management of these enterprises can participate in the acquisition and give priority under the same conditions, it is obviously unfair to let them preside over the negotiations and be both athletes and referees.
Regarding MBO, the Opinions on Standardizing the Restructuring of State-owned Enterprises clearly stipulates that the transfer of state-owned property rights to the operators of this enterprise must strictly implement the relevant provisions of the state and go through the examination and approval procedures in accordance with the relevant provisions. The formulation of the plan for the transfer of state-owned property rights to enterprise operators shall be carried out by the unit directly holding the state-owned property rights of the enterprise, or by an intermediary agency. Operators shall not participate in the decision-making on the transfer of state-owned property rights, financial audit, outgoing audit, assets verification, asset evaluation and reserve price determination, and it is strictly forbidden to buy or sell state-owned property rights.
It must be pointed out that the restructuring of state-owned enterprises should obtain the consent of creditor financial institutions, preserve financial claims, implement financial debts according to law, and safeguard the interests of other creditors. It is necessary to guard against the use of restructuring to evade financial debts, and enterprises whose financial debts have not been fulfilled may not be reorganized.
4. The price of property right transfer is too low.
The determination of the reserve price of state-owned property rights transfer is mainly based on the evaluation results, and at the same time, factors such as supply and demand in the property rights trading market should be considered. State-owned equity transfer price of listed companies should be reasonably priced with reference to the profitability and market performance of listed companies on the basis of not less than net assets per share. The transfer price of state-owned property rights is not lower than the net assets of restructured enterprises, and net assets have become a very important and key pricing reference index and red line. The Opinions on Standardizing the Restructuring of State-owned Enterprises clearly stipulates that it is strictly forbidden for the transferee to collude maliciously in property right transfer pricing and auction, resulting in the loss of state-owned assets.
5. The property right transfer contract does not meet the requirements.
After the completion of the transfer of state-owned property rights of enterprises, the transferor and the transferee shall sign a contract for the transfer of property rights and hire a trading institution to issue a certificate of property rights transaction. The Opinions on Standardizing the Reform of State-owned Enterprises points out that it is strictly forbidden for the transferee to influence the transferor's choice and the signing of the transfer contract by means of fraud or concealment.
The contract for the transfer of state-owned property rights of enterprises shall include the following main contents:
(a) the name and domicile of the transferor and the transferee;
(2) the basic situation of the transfer of state-owned property rights of the target enterprise;
(3) the employee placement scheme involved in the transfer of the target enterprise;
(four) the creditor's rights and debts involved in the transfer of the target enterprise;
5] Transfer method, transfer price, payment time and method and payment terms;
[6] property rights delivery matters;
(seven) the tax burden involved in the transfer;
(eight) the way to solve the contract dispute;
(9) Liability of the parties to a contract for breach of contract;
⑽ Conditions for contract modification and dissolution;
⑾ Other terms deemed necessary by both parties.
The Opinions on Standardizing the Restructuring of State-owned Enterprises points out that the transfer price of state-owned property rights shall be settled in one lump sum in principle. If reconciliation is indeed difficult, the two sides can negotiate and approve the restructuring of state-owned enterprises and the transfer of state-owned property rights in accordance with relevant regulations, and can adopt the method of installment payment. In the case of installment payment, the down payment shall not be less than 30% of the total price, and the remaining price shall be guaranteed by the transferee according to law, and the interest during the deferred payment period shall be paid according to the bank loan interest rate for the same period. And complete the payment within one year from the first day of payment. The proceeds from the transfer of state-owned property rights should be given priority to pay the economic compensation to the employees who terminate the labor contract, pay the social insurance premiums to the social security institutions, repay the debts owed to the employees and the social insurance premiums owed by the enterprises to the employees. Residual income shall be handled in accordance with relevant regulations. It is strictly forbidden for the transferor and the target enterprise not to properly arrange the relationship between employees and social insurance according to the regulations, thus infringing on the legitimate rights and interests of employees. It is strictly forbidden for the transferor to fail to implement the creditor's rights of the target enterprise according to the regulations, transfer or evade responsibility in violation of regulations, and transfer the state-owned property rights of the enterprise as a guarantee without the consent of the guaranteed party.
It is puzzling that some places have seriously violated the relevant provisions of the Opinions on Regulating the Restructuring of State-owned Enterprises, and the transfer price of property rights of the acquirer is all or most formed through borrowing. It is understood that the purchase price of the management is mortgaged by the assets of the enterprise and guaranteed by the government department. It is puzzling to guarantee loans to financial enterprises with state-owned assets and national reputation, and then come back to buy state-owned enterprises. Because the buyer does not bear the risk, because their debts are not paid by dividends, once the operation fluctuates, dividends are less or difficult to distribute, which will either lead to the risk of creditors or may lead to the auction of property rights to compensate them, thus directly affecting the stability of enterprises.