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THE
PRIME MINISTER
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THE
SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.
23/2015/QD-TTg
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Hanoi,
June 26, 2015
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DECISION
PROVIDING THE MECHANISM WHEREBY THE STATE USES LAND TO MAKE
PAYMENT TO INVESTORS IMPLEMENTING CONSTRUCTION INVESTMENT PROJECTS IN THE FORM
OF BUILD-TRANSFER
Pursuant to the December 25,
2001 Law on Organization of the Government;
Pursuant to the December 16,
2002 Law on the State Budget;
Pursuant to the June 3, 2008 Law
on Management and Use of State Property;
Pursuant to the June 3, 2008 Law
on Promulgation of Legal Documents;
Pursuant to the November 29,
2013 Land Law;
Pursuant to the November 26,
2014 Law on Investment;
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At the proposal of the Minister
of Finance,
The Prime Minister promulgates
the Decision providing the mechanism whereby the State uses land to make
payment to investors implementing construction investment projects in the form
of build-transfer.
Chapter I
GENERAL PROVISIONS
Article 1.
Scope of regulation
This Decision provides the
mechanism whereby the State uses land to make payment to investors implementing
construction investment projects in the form of build-transfer contract (below
refereed to as BT projects).
Article 2.
Subjects of application
1. State agencies competent to
conclude build-transfer contracts (below referred to as BT contracts).
2. Investors performing BT
contracts (below refereed to as investors).
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Article 3.
Principles of using land to make payment for BT projects
1. The value of BT projects shall be
determined in accordance with the law on construction investment.
2. The value of land areas used to
make payment to investors shall be determined in accordance with the land law.
3. The use of land to make payment
for a BT project shall adhere to the principle of parity and difference
offsetting between the value of the BT project and the value of the land area
used to make payment.
4. The time of making payment for a
BT project with land is the time the People's Committee of the province or
centrally run city (below referred to as provincial-level People's Committee)
issues a decision to allocate or lease land to the investor. Such decision
shall be issued upon or after completion of the BT project as prescribed in
Clause 3, Article 43 of the Government’s Decree No. 15/2015/ND-CP of February
14, 2015, on investment in the form of public-private partnership.
Chapter II
SPECIFIC PROVISIONS
Article 4.
Land areas used to make payment to investors
1. Investors may be allocated land
with collection of land use levy or leased land with one-off rental payment for
the entire lease period.
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a/ Land areas for economic
development already determined in land use master plans or plans approved by
competent state agencies in accordance with the land law; b/ Old premises, for
BT projects to built facilities at new locations.
3. Competent state agencies shall
select land areas used to make payment to investors as prescribed at Point a,
Clause 2 of this Article, provided the following two conditions are fully met:
a/ Being conformable with approved
land use master plans or plans; b/ The value of a land area used to make
payment is equivalent to the value of the approved BT project concerned.
Article 5.
Use of land to make payment for BT projects
1. For uncleared land
Based on the location and area of
land to be used to make payment to investors by provincial-level People’s
Committees and at the proposal of state agencies competent to conclude BT
contracts and of investors, provincial-level People’s Committees shall make
written commitments with investors on use of land to make payment for BT
projects; and concurrently request local functional agencies and investors to:
a/ Formulate detailed plans of a
1:500 scale and submit them to competent state agencies for approval;
b/ Formulate compensation and
ground clearance plans and submit them to competent state agencies for
approval;
c/ Pay in advance funds for
compensation and ground clearance according to regulations; d/ Carry out the
compensation and ground clearance according to approved plans.
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2. For cleared land
a/ Provincial-level People’s
Committees shall issue decisions to allocate or lease land to investors to
serve the valuation of the land areas used to make payment. A land area used to
make payment shall be valuated as follows:
- In case of allocation of land
with land use levy, the value of the land area is the land use levy determined
at the time of obtaining the decision on land allocation according to
regulations on collection of land use levy;
- In case of lease of land with
one-off rental payment for the entire lease period, the value of the land area
is the land rental fully paid for the entire lease period determined at the
time of obtaining the decision on land lease according to regulations on
collection of land rental or water surface rental.
b/ The use of land areas to make
payment for BT projects is as follows:
The payment shall be made on the
principle of parity. The value of BT projects shall be determined in accordance
with the law on construction investment; the value of land areas used to make
payment shall be determined in accordance with the land law;
- In case the value of a land area
used to make payment for a BT project is higher than the value of such project,
the investor shall pay the difference in cash into the state budget according
to regulations on collection of land use levy, land rental and water surface
rental;
- In case the value of a land area
used to make payment for a BT project is lower than the value of such project,
at the time of making final settlement for the project as prescribed by the law
on construction investment, the State shall pay a sum of money or use another
land area to pay for the difference, provided the condition prescribed at Point
a, Clause 3, Article 4 of this Decision is met;
After the payment is made according
to regulations, the value of a BT project and of the land area used to make
payment for such project, which are determined by competent state agencies,
must not be changed, except cases when competent state agencies issue a
document permitting:
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- The adjustment of the land use
master plan, resulting in a change in the area, use purposes or use duration of
the land area used for payment;
The difference resulting from such
adjustment shall be offset when the BT project is completed and finalized in
accordance with the law on construction investment.
c/ The loan interest amount
included in a BT project’s financial plan shall no longer exist after the
provincial-level People’s Committee issues a decision on land allocation or
land lease;
d/ The provincial-level People’s
Committee shall grant a certificate of land use rights to the investor in
accordance with the land law for the land area used to make payment equivalent
to the value of the completed BT project under the progress determined by the
competent state agency in accordance with the law on construction investment
and the difference (if any) already paid by the investor under Point b of this
Clause.
Article 6.
Use of old premises to make payment for BT projects to
build facilities at new locations
The use of old premises to make
payment for BT projects to build facilities at new locations must comply with
the law on management and use of state property, specifically as follows:
1. An administrative agency, a
non-business unit or an enterprise in which the State holds 100% of charter
capital (below referred to as state enterprise), that is assigned to manage old
premises, shall make a written report on the need and necessity to implement a
BT project to build facilities at the new location and use of the old premises
to make payment for such project; and send the report to:
a/ Its managing agency (which may
be ministry, ministerial-level agency, government- attached agency or another
central agency), for administrative agencies or non-business agencies managed
by central agencies; or the direct representative of the owner at the
enterprise in which the State holds 100% of charter capital (below referred to
as the owner’s direct representative), for state enterprises managed by central
agencies;
b/ Its managing department or
sector or its superior agency under the provincial-level People’s Committee,
for administrative agencies or non-business units managed by local agencies; or
the owner’s direct representative, for state enterprises managed by local
agencies.
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a/ The Ministry of Finance (for
administrative agencies, non-business units and state enterprises managed by
central agencies) to consult in writing the provincial-level People’s Committee
(where exist the old premises) about the land use and construction planning;
b/ The provincial-level Department
of Finance (of the locality where exist the old premises, for administrative
agencies, non-business units and state enterprises managed by local agencies)
to coordinate with related departments and sectors in considering and reporting
to the provincial- level People’s Committee on the BT project as well as land
use and construction planning at the location of the old premises.
3. Based on the provincial-level
People’s Committee’s opinions on land use and construction planning, the
Ministry of Finance shall consider and give its written opinions on the
proposal of the managing agency (for administrative agencies and non-business
units managed by central agencies) or the owner’s direct representative (for
state enterprises managed by central agencies). The provincial-level People’s
Committee shall consider and give its written opinions on the proposal of the
managing agency (for administrative agencies and non-business units managed by
local agencies) or the owner’s direct representative (for state enterprises
managed by local agencies).
4. The selection of investors to
implement BT projects to build facilities at the new locations and the use of
old premises to make payment for such projects must comply with the bidding
law.
5. The time when provincial-level
People’s Committees issue decisions on allocation or lease of land at the old
locations to investors must comply with Clause 4, Article 3 of this Decision.
6. The value of the old premises
(including the value of land use rights and the value of land-attached assets)
used to make payment for BT projects shall be determined as follows:
a/ The land use levy or land rental
fully paid for the entire lease period must comply with Point a, Clause 2,
Article 5 of this Decision;
b/ The value of land-attached
assets must be consistent with its re-valuated residual actual value, which
must not be lower than the construction price applicable to works of the same
type, issued by the provincial-level People's Committee, multiplied by (x) the
residual quality percentage at the time of obtaining the decision on allocation
or lease of land at the old location.
7. The time of making payment to
investors is the time provincial-level People’s Committees issue decisions on
allocation or lease of land at the old locations to investors.
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The payment shall be made on the
principle of parity. The value of a BT project shall be determined in
accordance with the law on construction investment; the value of a land area
used to make payment shall be determined in accordance with the land law.
a/ In case the value of a land area
used for payment is higher than the value of a BT project, the investor shall
remit the difference in cash into the state budget under regulations on
collection of land use levy, land rental and water surface rental;
b / In case the value of a land
area used for payment is lower than the value of a BT project, the State shall
pay the difference to the investor in cash or with another land area provided
the condition prescribed at Point a. Clause 3. Article 4 of this Decision is
met at the time of finalization of the project in accordance with the law on
construction investment.
9. The loan interest amount
included in a BT project's financial plan shall no longer exist after the
provincial-level People’s Committee issues a decision on land allocation or
land lease at the old location.
10. The provincial-level People’s
Committee shall grant a certificate of land use rights to the investor in
accordance with the land law for the land area used to make payment equivalent
to the value of the completed BT project under the progress determined by the
competent state agency in accordance with the law on construction investment
and the difference (if any) already paid by the investor under Point a, Clause
8 of this Article.
Chapter III
ORGANIZATION OF
IMPLEMENTATION
Article 7.
Transitional handling
BT contracts concluded in
accordance with law before the effective date of this Decision, under which
investors shall receive payment in the form of land allocation for implementation
of other projects, shall be further implemented according to relevant laws
without having to be modified according to this Decision.
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1. This Decision takes effect on
August 15.2015.
2. The Ministry of Finance shall
guide the order and procedures for using land to make payment to investors
according to regulations.
3. Ministers, heads of
ministerial-level agencies, heads of government-attached agencies and other
central agencies, chairpersons of provincial-level People’s Committees, and
heads of related agencies and units shall implement this Decision.-
PRIME
MINISTER
Nguyen Tan Dung