Thông tư 77/2014/TT- BTC hướng dẫn 46/2014/NĐ-CP tiền thuê đất thuê mặt nước

CIRCULAR

PROVIDING GUIDANCE ON A NUMBER OF ARTICLES OF THE GOVERNMENT’S DECREE 46/2014 / ND-CP DATED MAY 15, 2014 DEFINING COLLECTION OF LAND RENTS AND WATER SURFACE RENTS

Pursuant to the Law on Land dated November 29, 2013;

Pursuant to the Law on State budget dated December 16, 2002;

Pursuant to the Law on Tax administration dated November 29, 2006; the Law on the amendments and supplementation of a number of articles to the Law on Tax administration dated November 20, 2012;

Pursuant to the Law on Price dated June 20, 2012;

Pursuant to the Government’s Decree No. 46/2014 / ND-CP dated May 15, 2014 on collection of land rents, water surface rents

Pursuant to the Government's Decree No. 215/2013/NĐ-CP dated December 23, 2013 defining the functions, tasks, entitlements and organizational structure of the Ministry of Finance;

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The Minister of Finance promulgates the Circular providing guidance on a number of articles of the Government’s Decree 46/2014 / ND-CP dated May 15, 2014 defining collection of land rents and water surface rents

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Circular provides guidance on determination and procedures for determination, collection of land rents or water surface rents; exemption and reduction of land rents, water surface rents; guidance on transitional handling and some specific contents of the Government’s Decree No. 46/2014 / ND-CP dated May 15, 2014 defining collection of land rents, water surface rents (hereinafter referred to as Decree No. 46/2014 / ND-CP).

Article 2. Regulated entities

1. Economic organizations, non-business organizations with financial autonomy (public service providers which cover the entire cost of regular activities themselves), people’s armed units, foreign organizations with diplomatic function, foreign-invested enterprises, oversea Vietnamese, households and individuals rented land or water surface by the State; recognized the land use right under the case of payments of land rents as prescribed by the Law on Land and Decree No. 46/2014 / ND-CP.

2. Other agencies, organizations, and individuals related

Chapter II

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Section 1. DETERMINATION AND COLLECTION, PAYMENT OF LAND RENTS

Article 3. Determination of unit price of land rent

1. In case of the land rents paid annually not through auction

The unit price of annual land rent is determined by the percentage rate multiplied (x) by the land rent price, including:

The percentage rate used for determining the unit price of land rent shall be specified by the People’s Committee in central-affiliated cities and provinces (hereinafter referred to as the provincial People’s Committees) in accordance with regions, routes corresponding to the land use purposes as prescribed in clause 1 of Article 4 of Decree No. 46/2014 / ND-CP and shall be publicized in the implementation process.

b) In the case of land rents paid annually not through an auction and the area used for determining the land rents of ​​the land plot or land area (calculated on the land price in the land price list) with the value of 30 billion dong or more for central-affiliated cities; 10 billion dong or more for mountainous areas and highland; 20 billion dong or more for the rest provinces, the land price used for determining the land rents is the specific land price decided by the provincial People's Committee determined according to the method of direct comparison, deduction, income, surplus stipulated in the Government’s Decree on land prices.

c) In the case of land rent paid annually not through an auction and the area used for determining the land rents of ​​the land plot or land area (calculated on the land price in the land price list) with the value of less than 30 billion dong for central-affiliated cities; less than 10 billion dong for mountainous areas and highland; less than 20 billion dong for the rest provinces, the land price used for determining the land rents is the land price determined according to rented land use purposes prescribed by the provincial People's Committee in the  price list multiplied (x) by the land price adjustment coefficients.

d) The land price adjustment coefficients used to determine the land price used for determining the land rents shall be defined by the Service of Finance according to regions, routes, locations corresponding to the land use purposes that are suitable for market and conditions of local economy and society, and shall be submitted to the provincial People's Committee for issuance annually after consultation of the Standing of People’s Council at all levels.

In case some land positions in which projects are carried out in the same area, route have land use coefficient (construction density, work height) which is different from the average rate of the region, route, the provincial People's Committee shall stipulate land price adjustment coefficients which is higher or lower than the average rate to determine the land rents for this case and specify in the Decision issued on the local land price adjustment coefficients.

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The land rent unit price paid in lump-sum for the entire rent period is the land price determined by land use term corresponding to land rent time, including:

a) In the case of land rents paid in lump-sum for the entire rent period not through an auction and the area used for determining the land rents of ​​the land plot or land area (calculated on the land price in the land price list) with the value of 30 billion dong or more for central-affiliated cities; 10 billion dong or more for mountainous areas and highland; 20 billion dong or more for the rest provinces, the land price used for determining the land rents is the specific land price decided by the provincial People's Committee determined according to the method of direct comparison, deduction, income, surplus stipulated in the Government’s Decree on land prices.

d) In the case of land rents paid in lump-sum for the entire rent period not through an auction and the area used for determining the land rents of ​​the land plot or land area (calculated on the land price in the land price list) with the value of less than 30 billion dong for central-affiliated cities; less than 10 billion dong for mountainous areas and highland; less than 20 billion dong for the rest provinces, the land price used for determining the land rents in lump-sum for the entire rent period is the land price of the land use term prescribed by the provincial People's Committee in the price list multiplied (x) by the land price adjustment coefficients in accordance with provisions in point d, Clause 1 of this Article.

c) In case the land rent term is less than the term of the land types defined in land price list, the land price used for determining the unit price is determined by the following formula:

Land price of the land rent term

=

Land price in the land price List

x

Land rent term

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3. In case of determining the starting price for rent land use right auction

a) In case of rent land use right auction under the form of land rent paid annually, the starting unit price for the auction is the land price determined by the rent land use purpose corresponding to the land rent term specified in the land price List multiplied (x) with land price adjustment coefficients multiplied (x) with the percentage rate to determine the unit price of land rent prescribed by provincial People’s Committees.

b) In the case of rent land use right auction under the form of land rents paid in lump-sum for the entire rental term, the land price used for determining the starting unit price for the auction shall be determined according to the method of direct comparison, deduction, income, surplus.

4. In case of the adjustment of land rent unit price

In case of land rents paid annually, when the stability time of land rent unit price prescribed in Paragraph 1 of Article 14 of Decree No. 46/2014 / ND-CP is up, the land rent unit price applied to the next stability cycle is determined by the land price in the land price List multiplied (x) by the land price adjustment coefficients multiplied (x) by the percentage rate prescribed by the provincial People's Committee at the time of adjustment of the land rent unit price.

5. In case of the valuation of land use rights included in the value of enterprises in equitization in which equitized enterprises choose the form of land rents paid in lump-sum for the entire rental period, the land price used for determining the land rents paid in lump-sum for the entire rental period is determined under the provisions of paragraph 2 of this Article.

6. Responsibility for determining land rent price units

a) The tax authorities within their competence provided for in Paragraph 1 of Article 11 of Decree No. 46/2014 / ND-CP shall determine the land rent unit price for cases specified in Clauses 1, 2 and 4 of this Article.

b) The Financial Agency shall determine the starting price for rent land use right auction, the value of rent land use right to include it in the enterprise value in equitization as specified in Clauses 3 and 5 of this Article .

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1. The area of land rents payable is the land area collected the land rents stated in the decision to rent land. In case the area stated in the land rent contract is larger than the area stated in the decision to rent land, the area for rent land is determined by the area stated in the land rent contract.

2. In case there is no decision on land rent or land rent contract but the land is being used for purposes subject to land rent under the provisions of the Law on Land, the area used for determining land rents is the actual area which is being used.

3. In case the land is used for both purposes that land rents are paid and purpose that land rents are not paid, then the land rents payable are determined on the basis of allocation of area under the land use purposes, as follows:

a) In case the land area for the purpose of production and trading, service of which land rents must be paid is separated, the area of ​​land rent payable is the actual area of land used for purposes of business and trading, service.

b) In case the land area for the purpose of production and trading, service of which land rents must be paid is not separated, the determining of land rents is carried out according to the method of allocation. The land rents payable is determined based on the area of land and constructions, workshops used for the purposes of business or service.  In case of failure to allocate based on the area as above, the allocation standards shall be the revenues of goods and services of production and business activities, service compared with the total revenue of the agencies and units earned in the year.

c) The tax authorities shall take charge and cooperate with the relevant agencies to determine and collect the land rents for the cases provided for in point a and point b of this Clause.

Article 5. Determination of land rents

1. The determination of land rents paid annually, land rents paid in lump-sum for the entire rental period shall comply with the provisions in Clause 1, Clause 2, Article 12 of Decree No. 46/2014 / ND CP. The land rents payable to the State budget are determined after subtracting (-) the exempted or reduced land rents (if any) and compensation, premise clearance under the provisions of Decree No. 46/2014 / ND-CP.

2. In case economic organizations get the transfer of legally agricultural land use rights of households and individuals as prescribed in point a Paragraph 4 of Article 12 of Decree No. 46/2014 / ND-CP to carry out investment projects in accordance with the plan, the land-use planning, must change the land use purpose after the transfer and must fulfill their financial obligations for payment of land rents, they shall be deducted the amount paid for getting the transfer of land use rights from the land rents payable; the amount deducted from the land rents payable is determined by the land price of the land purpose got the transfer at the time competent State agencies allow to transfer land use purposes, not exceeding the compensation or support amount corresponding to the land recovery of the State, specifically:

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b) In case the land renters choose the form of land rents paid annually, the amount paid for getting the transfer of land use rights mentioned above shall be converted into the time of which obligation of payment of land rents is fulfilled at the time competent State agencies allow to change the land use purpose. The conversion of this amount into the number of year, month in which the obligation to pay the land rents are fulfilled in case of choosing the form of the land rents paid annually shall be carried out according to the following formula:

n

=

The amount paid for getting the transfer of land use rights

land rents payable for one year

In which:

- n: Number of years, months in which the obligation to pay land rents is fulfilled

- The amount paid to get the transfer of legally the agricultural land use rights of households and individuals determined by the land price of the purpose of getting  the transfer at the time competent State agencies allow to change land use purposes as prescribed in point a paragraph 4 of Article 12 of Decree No. 46/2014 / ND-CP.

- Land rents payable for one year determined by the annual land rent unit price at the time competent State agencies allow to change the land use purpose multiplied (x) with the area of land rents payable

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The determination of the amount paid for getting the transfer of land use rights shall be deducted from the land rents payable or converted into time in which the obligation to pay land rents is fulfilled and shall be as follows:

a) In case of land rents paid in lump-sum for the entire rental period, the amount paid for getting the transfer of land use rights shall be determined by the land rents under land use purpose that must be paid in lump-sum for the remaining land use period before the transfer of land use purposes, not exceeding the compensated and supported amount when the State recovers the land and shall be determined as specified in Clauses 4, 5 of Article 4 of Decree No. 46/2014 / ND-CP.

b) In case of land rents paid annually, the amount paid for the transfer shall be converted into the number of years, months in which the obligation to pay land rents is fulfilled in accordance with the formula specified at Point b, Clause 2 of this Article.

4. In case households and individuals allocated the agricultural land within the use limits of agricultural land by the State, at the present are allowed by competent State agencies to change the land use purpose into non-agricultural production, trading land in which the form of land rents is chosen, the value of agriculture land use right shall be deducted from the land rents payable; the deduction levels must not exceed the land rents payable. The value of agricultural land use rights deducted from land rents payable shall be determined as follows:

a) If the land price used to determine the land rent unit price rate is determined under the method of land price adjustment coefficients, the agricultural land price shall be determined under the method of land price adjustment coefficients at the time competent State agencies allow to change the land use purposes.

b) If the land price used for determining the land rent unit price is the specific land price decided by provincial People’s Committees determined under the method of direct comparison, deduction, income, surplus, the agricultural land price shall also be determined under the corresponding specific land price and decided by the provincial People's Committee at the time competent State agencies allow to change land use purposes.

5. In case an organization is rented land by the State under lump-sum payment form for the entire rental period not through auction and the land rent is paid in accordance with the law, but in the course of project implementation, such organization requests for changes of detailed construction planning leading to increasing the land use coefficient (construction density, work height), the handling shall be as follows:

a) In case the land price used for determining the land rents paid in lump-sum for the entire rental period is determined under the method of direct comparison, deduction, income, surplus, the difference between the land rents determined under the land price determined under the above methods of detailed construction planning before and after the adjustment at the same time competent State agencies allow to change the construction planning shall be collected.

b) In case the land price used for determining the land rents paid in lump-sum for the entire rental period is determined under the method of land price adjustment coefficients, the difference between the land rents determined under the land price determined under the above methods of detailed construction planning before and after the adjustment at the same time competent State agencies allow to change the construction planning shall be collected.

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a) In case the starting price of land use right auction is determined under the method of direct comparison, deduction, income, surplus, the difference between the land rents determined under the land price determined under the above methods of construction detailed planning before and after the adjustment at the same time competent State agencies allow to change the construction planning shall be collected.

b) In case the starting price of land use right auction is determined under the method of land price adjustment coefficients, the land price List, land price adjustment coefficients and adjustment principles of such coefficients prescribed by provincial People’s Committees shall be based on to collect the difference between the land rents determined under the land price determined under the method of land price adjustment coefficients corresponding to the construction planning before and after the adjustment at the same time competent State agencies allow to change the construction planning.

7. In case due to the requirement for management, the State adjusts the detailed construction planning to reduce the land use coefficient (construction density, work height) leading to a reduction of the land rents in case an organization is rented land paid in lump-sum for the entire rental period, such organization shall refund the difference between the land rents determined under the detailed construction planning before and after the adjustment at the same time competent State agencies allow to adjust the planning. The determination of the difference shall comply with the provisions in Clauses 5 and 6 of this Article.

The refund of the land rents under the provisions of this Clause shall be under the form of direct refund or offsetting in the financial obligations of the organization with the State under the provisions of the law on the State budget and legislation on tax administration.

8. In case the land user receiving the transfer of use rights of non-agricultural, production and trading land is allocated the land subject to land levies by the State before July 01, 2014, when transferring to renting the land with lump-sum payment for the entire rental period to carry out the investment projects with the land rental term longer than the remaining use time of the transferred land, he/she must pay the land rents under the new land use purpose at the time of transferring from land allocation to land rent and is reduced the amount of transfer.

The amount of the transfer of land use rights is deducted from the land rents under the provisions of this Paragraph shall be determined by the following formula:

The reduced amount of transfer

=

land levy determined under the land price of land use term subject to land levy at the time of transfer from land allocation to land rent

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The remaining land use term

The total land use term subject to land levy

9. Notification Form of land rents payable shall comply with the provisions in the Appendix enclosed herewith this Circular.

Article 6. Handling of compensation, premises clearance

1. In case the land development Fund advances capital for the organization in charge of compensation, premises clearance to form clean land fund to rent out land through auction or not through auction which is not under exemptions, reduction of the land rents, the land renter from the State must pay the land rents to the State budget in accordance with the law. The refund of compensation, premises clearance for the land development Fund shall comply with the provisions of the legislation on the state budget.

In case of failure to balance the budget to make compensation, premises clearance, when renting out the land under the form of an annual payment of rent, the provincial People's Committee shall consider and decide that the land renter from the State shall prepays the land rents corresponding to the amount of compensation, premises clearance under the plan approved by competent State agencies and such amount shall be converted into the number of years, months in which the obligations of annual rent payment are fulfilled.

2. In case the land development Fund advances capital for the organization in charge of compensation, premises clearance to form clean land fund to rent out the land which is under exemptions, reduction of the land rents, the refund of amount of compensation, premises clearance for the land development Fund shall be as follows:

a) In case of being subject to total exemption of land rents for the entire rental period in accordance with the provisions of Article 19 of Decree No. 46/2014 / ND-CP, the land renter from by the State must refund the expenses of compensation, premises clearance under the plan approved by competent State agencies to the State budget and such expenses are charged to investment capital of projects. The refund of amount of compensation, premises clearance to the land development Fund shall comply with the provisions of the legislation on the state budget.

b) In case of being subject to partly exemption or reduction of the land rents as stipulated in Article 19, Article 20 of Decree No. 46/2014 / ND-CP, the land renter from the State must refund the cost of compensation, premises clearance under the plan approved by competent State agencies to the state budget deducted from the land rent payable in case of land rents paid in lump-sum for the entire rental period or converted into the number of years, months in which the obligation to pay land rents is fulfilled for the case of land rents paid annually under the policy and land prices at the time the land is rented by the State; The remaining amount (if any) shall be included in investment capital of projects. The refund of amount of compensation, and premises clearance for land development Fund shall comply with the provisions of the legislation on the state budget.

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In case the advance of compensation and premises clearance under the plan approved by competent State agencies exceeds the land rents payable, such advance shall be deducted equally the land rents payable; the rest amount is included in invested capital of the project.

In case of being rented land by the State with annual payment, the amount of compensation, premises clearance advanced under the plan approved by competent State agencies shall be deducted from the land rents payable and converted under the policies and the land price at the time of being rented land by the State and determined as the time of completion of the annual payment for the land rents.

5. Financial agency shall record the revenues and expenditures of the amount of compensation, premises clearance advanced by the land user deducted from the land rents, water surface rents payable under the provisions in the legislation on the state budget.

Article 7. Procedures for determination of land rent unit price and collection of land rents

1. In case of renting out new land

a) Based on the decision to rent land cadastral dossiers transferred to by the natural resources and environment agency, tax authorities shall determine land rent price units as follows:

- In case of application of  the method of direct comparison, deduction, income, surplus: Based on specific price decided by the provincial People's Committee, the percentage rate defined by the provincial People's Committee, tax authorities shall determine the land rent price units for the first stability term of land rent price units to notify in writing to the land renter and transfer to the natural resources and the environment agency as a basis to record in the land rent contract in accordance with law.

- In case of application of the method of land price adjustment coefficients: Based on the land price List, land price adjustment coefficients, the percentage rate defined by the provincial People's Committee, tax authorities shall determine the land rent price units for the first stability term of land rent price units to notify in writing to the land renter and transfer to the natural resources and the environment agency as a basis to record in the land rent contract in accordance with law.

b) Based on the land rent price units determined in Point a of this Paragraph and the area of ​​land rents payable; the amount of compensation, premises clearance and sums received from the transfer of land use rights deducted from the land rents defined by the financial authorities and transferred to (if any), tax authorities shall determine and issue a Notification of land rents payable and open a logbook of collection and payment of land rents.

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2. In case of adjustment of land rent price units at the end of the stability cycle of land rent price units

When it comes time to adjust land rent price units as prescribed in Paragraph 1 of Article 14 of Decree No. 46/2014 / ND-CP; based on the land price List, land price adjustment coefficients, the percentage rate defined by the provincial People's Committee, tax authorities shall re-determine the land rent unit price and notify the land rents payable annually of the next stability cycle to the land renter.

3. Every year the tax authorities shall notify the land rent payment directly to the payers of the land rents. In case the basis for determining the land rents changes, the land rents must be re-determined as stipulated in Decree No. 46/2014 / ND-CP and the guidance in this Circular, and the notice shall be sent to the land renter.

The year of land rent payment shall be calendar year, from January 01 December 31 every year. In case the first year of land rent and the last year of land rent do not have enough 12 months, the land rents of the first year and the last shall be calculated according to the number of rent months. In case the rent time of the first month or the last month does not have enough days of one (01) month:

a) If the land rent days are 15 days or more to a full-month (> = 15 days), it shall be rounded up to 01 month.

b) If the land rent days are less than 15 days (<15 days), land rents shall not be paid.

4. The land renter shall base on the payment notice of land rents to pay at the locations stated in the payment Notice of land rents, water surface rents within the prescribed period, namely:

a) For land rents, water surface rents paid annually

- The annual payment shall be divided into 2 terms: at least 50% shall be paid for the first period before May 31; the second period shall be before October 31 annually. In case of renting out the new land of which the time for determining the financial obligations of the land rents payable for the first year is after October 31, the tax authority shall issue a payment Notice of land rents for the remaining period of the year.

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b) For land rents paid in lump-sum for the entire rental period

- Within 30 days from the date of Notice of land rents of tax authorities, the land renter must pay 50% of the land rents according to the Notice.

- Within the next 60 days, the land renter must pay full the remaining land rents according to the Notice.

- If the prescribed term above expires, the land renter who has not paid full land rents according to the Notice must pay late payment interest for the unpaid land rents in accordance with the defined level of the legislation on tax administration.

5. State Treasuries, commercial banks entrusted in cooperation in collection of the State budget or tax authorities when collecting land rents must use vouchers of collection money into the state budget in accordance with the provisions of the guidelines on gathering, management of the state budget revenues through the state treasuries.

6. Entrusting collection of land rents, water surface rents of organizations and individuals that are rented land or water surface in airports to airport Authorities shall comply with the provisions of legislation on tax administration.

7. The tax authorities must open a book of collection and payment of land rents in localities in accordance with the provisions of legislation on tax administration.

Article 8. Application of land rent unit price

1. The land rent project of which land rents paid annually before Decree No. 46/2014 / ND-CP takes effect, in stability time of the land rent unit price, but the land rent unit price which is being paid is higher than the land rent unit price specified in this Decree shall be adjusted the land rent unit price as prescribed in Article 4 of Decree No. 46/2014 / ND-CP if the land renter has a written request. Tax authorities shall take charge and cooperate with the relevant authorities to determine the land rent unit price for the above cases; the time of re-determination and start of stability of the land rent unit price shall be applied from January 01, 2015.

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a) For investment projects of which one of the three papers mentioned above defines the land rent unit price and principles of adjustment of unit price in accordance with the provisions of the price unit of the Ministry of Finance (Decision No. 210A-TC / VP dated April 01, 1990, Decision No. 1417 / TC-TCDN dated December 30, 1994, Decision No. 179/1998 / QD-BTC dated February 24, 1998, Decision No. 189 / 2000 / QD-BTC dated November 24, 2000, Decision No. 1357 / TC / QD-TCT dated December 30, 1995) or Investment certificate (investment license ) is replaced, the land rent Contract form is changed because the provisions of administrative procedures in replaced papers have no content of principle of adjustment of the land rent unit price but the land use purpose is not changed; until the Decree No. 46/2014 / ND-CP takes effect, the land rent unit price is not adjusted as prescribed in Paragraph 2 of Article 9 of the Government's Decree No. 142/2005 / ND-CP dated November 14, 2005 and which are not the cases specified in Clause 1, Article 18 of this Circular, the tax authorities shall report to the provincial People's Committee for the adjustment of land rent price units corresponding to each adjustment cycle under the principle of increase of 15% compared with the previous cycle after each stability cycle of 5 years.

b) For investment projects of which one of the three papers mentioned above specifies the unit price of land rent or water surface rent and adjustment principles of the price units in accordance with the provisions of the unit price of the land rent or water surface rent of the Ministry of Finance as point a of this Paragraph but the land rent unit price is adjusted as prescribed in Paragraph 2 of Article 9 of the Government's Decree No. 142/2005 / ND-CP dated November 14, 2005 or Investment certificate (investment license) has been replaced, the land rent contract Form is changed because the provisions of administrative procedures in the replaced papers have no contents of principles of adjustments of the land rent unit price but the land use purpose is not changed and the land rent unit price is adjusted as prescribed in Paragraph 2 of Article 9 of Decree No. 142/2005 / ND-CP, at the next adjustment term of land rent unit price, the tax authorities shall report to the provincial People's Committee for decision on the adjustment level of the land rent unit price which shall not exceed the percentage rate(%) of adjustment of land rent price unit defined in one of the three papers mentioned above and the land rent unit price adjusted in the previous stability period and applied to the remaining land rent period as requested in writing by the land renter.

Section 2. DETERMINATION, COLLECTION AND PAYMENT OF RENTS OF LAND FOR UNDERGROUND WORKS, RENTS OF LAND WITH WATER SURFACE, WATER SURFACE RENTS

Article 9. Determination, collection and payment of land rents of underground works

1. Based on the provisions of Paragraph 1 of Article 5 of Decree No. 46/2014 / ND-CP, the Service of Finance Department shall cooperate with relevant agencies to formulate and request the provincial People's Committee for issuance regulations of the price unit level of land for construction of underground works not associated with construction work on the ground for trading purposes in accordance with the socio-economic conditions of the locality.

2. For the land for construction of underground works associated with construction works on the ground of which construction area of ​​underground works is beyond the land area on the surface subject to land rents, the land rent unit price of such construction area of underground works shall be determined as specified in Paragraph 1 of this Article.

3. Base con the collection level defined by provincial People’s Committees and the cadastral dossiers and information provided by the natural resources and environment agency, the Provincial Department of Taxation shall determine the land rents payable for the cases specified in Clauses 1, 2 of this Article and notify to the land renter to pay land rents in accordance with the law.

4. The land rent unit price in case of land rents paid annually for the construction of underground works shall be stable for 05 years. At the end of the stability cycle of land rent unit price, the tax authorities shall make adjustments to the rent unit price of construction land of underground works under the policy and the land price at the time of adjustment.

Article 10. Determination, collection and payment of rents of land with water surface

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a) For remote, mountainous areas, islands and areas facing socio-economic difficulties or particular difficulties; the area of ​​land with water surface used for the purpose of agricultural production, forestry, aquaculture, salt production; land with water surface used as production and trading places of projects in the field of investment promotions, the field of special investment promotions, the rent price unit of land with water surface shall be determined equally 50% of the rent unit price of the land types in adjacent locations with the same use purpose.

b) For cases not prescribed in point a of this Clause, the rent unit price of land with water surface shall be determined not less than 50% of the rent unit price of the land types in adjacent locations with the same use purpose .

2. For oversea organizations, Vietnamese, foreign-invested enterprises that rent land for investment projects, based on the collection level defined by provincial People’s Committees and the cadastral dossiers and information provided by the natural resources and environment agency, the Provincial Department of Taxation shall determine the rents of land with water surface payable and notify to the land renter in accordance with the law. The rents of land with water surface payable shall be determined by the land rents of the area without water surface plus the rents of the water surface area.

3. For households and individuals that rent the land for production and trading, based on the collection level defined by provincial People’s Committees and the cadastral dossiers and information provided by the natural resources and environment agency, the Provincial Department of Taxation shall determine the rents of the land with water surface payable and notify to the land renter as prescribed by law similarly to with the case prescribed in Clause 2 of this Article.

4. In case due to frequent changes of water levels, the land area, the water surface area cannot be precisely determined at the time of being rented by the State, the water surface area shall be determined by the average in the year as a basis for calculating the rents for this area.

Article 11. Determination, collection and payment of water surface rents

1. Based on the price bracket of water surface rent specified in paragraph 1 of Article 7 of Decree No. 46/2014 / ND-CP, the Service of Finance shall take charge and coordinate with relevant agencies to request the provincial People's Committee for decision on the unit price of water surface rent of each specific project (except for projects under Paragraph 2 of this Article), including:

a) The project of fixed water use specified in Point a, Clause 1 of Article 7 of Decree No. 46/2014 / ND-CP is the water surface used for fixed project at a certain locations; the location and fixed coordinate of the water surface for rent during project implementation shall be determined clearly.

b) The project of unfixed water use specified in Point b, Clause 1 of Article 7 of Decree No. 46/2014 / ND-CP is the water surface of which location and limit in specific coordinate range for rent are not determined clearly and the project is not fixed at a certain location of the water.

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d) The time for determining the water surface rents is the time competent State agencies decide to rent according to law.

e) The water surface rents payable shall be determined as prescribed in Clause 3, Article 12 of Decree No. 46/2014/NĐ-CP.

2. With regard to oil and gas extraction projects in the territorial water and continental shelves of Vietnam, the determination of water surface rents (sea surface) shall be as follows

a) The area used for determining water surface rents (sea surface) is the area allocated to explore and extract the oil and gas.

b) The unit price of the water surface rent (sea surface) shall be applied at the maximum price level of the price bracket of water surface rent specified in Paragraph 1 of Article 7 of Decree No. 46/2014 / ND-CP and shall be stable for 05 years as prescribed in Clause 2, Article 14 of Decree No. 46/2014 / ND-CP or under the specific commitment of the Government of Vietnam to the foreign organizations or Government under the signed Agreement. For oil and gas extraction projects which are renting water surface and the unit price of water surface rent applied in accordance with the provisions of Article 5 of the Government's Decree No. 142/2005 / ND-CP dated November 14, 2005, such unit price of water surface rent shall be applied continuously for the remaining rent period of the project; at the end of the water surface rent term of projects, the unit price of water surface rent shall be applied in accordance with the provisions of Clause 1 and Clause 2, Article 7 of Decree No. 46/2014 / ND-CP and the guidance in this Circular.

c) The time of determining the water surface rents (sea surface) shall be calculated from the time of being transferred the water surface for gas and oil exploration and extraction.

d) For projects in oil and gas extraction under the policy of product distribution under the provisions of the Government’s Decree No. 33/2013 / ND-CP dated April 22, 2013 on issuance of model contract of contract of gas and oil product distribution, foreign contractors shall not pay water surface rents (sea surface) as stipulated in Decree No. 46/2014 / ND-CP and the guidance in this Circular.

3. Base on the unit price of water surface rent and the area of water surface rented, tax authorities shall determine, notify the water surface rents payable and make the collection and payment in accordance with the law.

Section 3. EXEMPTION AND REDUCTION OF LAND RENTS, WATER SURFACE RENTS

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1. Investment projects using the land considered exemption, reduction of land rents, water surface rents are projects set up, verified and approved in accordance with law.

2. Investment projects are exempted or reduced the land rents associated with the new land rent applied in case the investor is rented the land for the first time by the State on the area where the projects are carried out or are extended the land rent in accordance with provisions of legislation on land.

3. Ongoing projects that are exempted or reduced the land rents, water surface rents, but the preferential rates (exemption, reduction) are lower than those prescribed in Article 19, Article 20 of Decree No. 46/2014 / ND CP shall be applied the exemption or reduction rate under the provisions of Article 19, Article 20 of Decree No. 46/2014 / ND-CP for the remaining exemption or reduction. The remaining exemption or reduction term determined under time as prescribed in Article 19, Article 20 of Decree No. 46/2014 / ND-CP minus (-) the time of exemption or reduction before Decree No. 46 / 2014 / ND-CP takes effect. Ongoing projects exempted or reduced the land rents, water surface rents are projects granted investment incentive Certificates (as stated in the investment License) or made a decision on exemption or reduction by the tax authorities in accordance with the law before Decree No. 46/2014 / ND-CP takes effect.

In case the starting day of the land rents is the date before Decree No. 46/2014 / ND-CP takes effect, but on the date Decree No. 46/2014 / ND-CP takes effect, the land renter carries out procedures for exemption or reduction, the regulations of the exemption, reduction and other provisions under Decree No. 46/2014 / ND-CP shall be applied.

4. The projects that are operating and paying the land rents, water surface rents annually before Decree No. 46/2014 / ND-CP takes effect and are not eligible for exemption or reduction of land rents, water surface rents, at the present are eligible for exemption or reduction of land rents, water surface rents under Decree No. 46/2014 / ND-CP shall be exempted, reduced the remaining incentive period at the request of the investor.

5. The land renter from the State shall only be entitled to be exempted, reduced land rents after carrying out procedures for exemption or reduction of land rents as prescribed. In case of being eligible for exemption or reduction of land rents, but the land renter from State does not carry out procedures for exemption or reduction of land rents, he/she must pay land rents under the provisions of law. In case of delay of procedures for exemption or reduction of land rents, the land rents in such delay time shall not be exempted or reduced.

In case the application of exemption or reduction of land rents is submitted when the time of  exemption or reduction is up under the provisions of Article 19, Article 20 of Decree No. 46/2014 / ND-CP, the land renter from the State shall not be considered the exemption and reduction of land rents; if he/she is in the time of exemption and reduction of land rents as prescribed, he/she shall only be exempted or reduced the land rents for the remaining incentive time from the time of submission of a satisfied application  for exemption or reduction of land rents.

6. In the process of managing, monitoring, if competent State agencies detect the land users who have been exempted or reduced the land rents, water surface rents as stipulated in Decree No. 46/2014 / ND CP but do not meet the conditions for exemption and reduction of land rents with reasons from the land users or use the for the purposes other than those stated in the decision to rent the land or land rent contract but are not in the cases of land recovery in accordance with the  provisions of legislation on land, tax authorities shall determine and report to the provincial People's Committee (for oversea organizations and Vietnamese, foreign-invested enterprises) or report to the district-level People’s Committee (for households and individuals) for decision to withdraw the land rents exempted or reduced under the provisions of the policy and land prices at the time of exemption or reduction the land rents plus the late payment interest calculated on the land rents exempted or reduced under the prescribed levels of the legislation on tax administration.

7. In case the land renter from the State is exempted, reduced land rents as stipulated in Article 19, Article 20 of Decree No. 46/2014 / ND-CP, but then the competent State agencies allow to transfer the project in accordance with the law, the financial obligations shall be fulfilled as follows:

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b) For transferees

- In case the transferees continue to carry out the project, they shall be continued to be exempted or reduced the land rents under the provisions of the law on investment for the remaining time of the project.

- In case the transferees do not continue to carry out the project for the transferred purpose but switch to other purposes, they must pay the land rents under the provisions of law.

- If the transferors have fulfilled a part of financial obligations on the land, the transferees are inherited the part of the obligation that the transferors have fulfilled.

c) In case the transferors are deducted the amount of compensation, premises clearance from the land rents payable under the provisions of law, the transferees shall be inherited and continued to be deducted the remaining amount of compensation, premises clearance from the land rents payable; The remaining amount (if any) shall be included in investment capital of projects.

Article 13. Reduction of land rents, water surface rents in some cases

1. The reduction of land rents for cooperatives specified in Point a, Clause 1 of Article 20 of Decree No. 46/2014 / ND-CP shall be applied to the entire rental time.

2. The reduction of land rents to use for the purposes of agriculture, forestry, aquaculture, salt production damaged by natural disasters, fires as provided for in point b, Clause 1, Article 20 of Decree No. 46 / 2014 / ND-CP shall be made as follows:

a) If the damage is below 40% of yield, land rents shall be considered for reduction at the percentage rate corresponding to the percentage rate of damage

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The percentage rate of the damage shall be based on the yield of crops in normal production conditions of the preceding crop or the latest crop produced in normal conditions previously and shall be determined by competent State agencies.

Article 14. Application for exemption and reduction of land rents, water surface rents

1. The application for exemption or reduction of land rents shall comply with the provisions of the legislation on tax administration

2. The land renter shall submit the application for exemption and reduction of land rents in supervisory tax authority

Article 15. Procedures for exemption and reduction of land rents, water surface rents

1. Within a maximum of 10 working days from receipt of the decision to rent the land, the land renter shall submit the application for exemption, reduction of land rents in supervisory tax authority.

2. Based on the application for exemption and reduction of land rents, tax authorities shall issue a decision on exemption or reduction of land rents for the time of exemption and reduction within their competence provided for in Paragraph 1 of Article 21 of Decree No. 46/2014 / ND-CP, namely:

a) In case of land rents paid annually, the amount of exemption or reduction shall be determined as follows:

- In case of being subject to land valuation under the method of direct comparison, deduction, income, surplus: tax authorities shall determine the exempted or reduced land rents by the area of ​​which land rents must be paid multiplied (x) by the land price in the land price List multiplied (x) by the ratio (%) multiplied (x) by the land price adjustment coefficients multiplied (x) by the years of exemption or reduction and record the specific exempted and reduced amount in the Decision of exemption or reduction of land rents.

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b) In case of land rents paid in lump-sum for the entire rental time, the exempted land rents shall be determined as follows:

- In case of being subject to land valuation under the method of direct comparison, deduction, income, surplus: tax authorities shall determine the exempted land rents for the entire rental time calculated on the area of ​​which land rents must be paid multiplied (x) by the land price in the land price List in proportion to the land rent term multiplied (x) by the ratio (%) multiplied (x) by the land price adjustment coefficients land multiplied (x) by price adjustment coefficients and record the specific exempted amount in the Decision on exemption of land rents.

- In case of being subject to land valuation used for determining land rents under the method of land price adjustment coefficients: tax authorities shall determine the exempted land rents by the area of ​​which land rents must be paid multiplied (x) by the land price in the land price List in proportion to the land rent term multiplied (x) by the price adjustment coefficients and record the specific exempted amount in the Decision on exemption of land rents.

c) The Decision on exemption or reduction of land rents must clearly state : the reason of exemption and reduction; land rent time; time of exemption and reduction of land rents and the exempted or reduced land rents, and must indicate the content: "In case the renter of land , water surface must return the state budget the exempted or reduced amount as specified in Paragraph 7 of Article 18 of Decree No. 46/2014 / ND-CP dated May 15, 2014, he/she must repay the exempted or reduced land rents under the provisions of the policy and the land price at the time of exemption or reduction plus an amount equivalent to the exempted or reduced late payment interest of the land rents.

3. In case land rents are exempted during fundamental construction time as specified in Clause 2, Article 19 of Decree No. 46/2014 / ND-CP; based on the application for exemption, reduction of land rents, tax authorities shall cooperate with relevant agencies to inspect, verify, determine the time of fundamental construction and issue a Decision on exemption of land rents for each investment project within 03 years from the date of the decision to rent the land.

4. In case of natural disasters, fires, majeure accidents, based on written Record of the extent of damage and the other relevant documents, tax authorities shall give a notice of reduction of land rents in accordance in Points b, c, Clause 1, Article 20 of Decree No. 46/2014 / ND-CP.

5. Within 15 working days from the receipt of a satisfied application as prescribed, the tax authorities shall give a Decision on exemption or reduction of land rents or notify to the land renter the reasons of failure of exemption or reduction. The Decision on exemption and reduction of land rents shall be complied with the form prescribed in Appendix enclosed herewith this Circular.

Article 16. Determination of land rents in case of exemption or reduction of land rents

1. In case of the land rents, water surface rents paid annually.

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Land rents, water surface rents payable for 01 year

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Unit price of land rent, water surface rent for 01 year at the beginning of payment of land rents, water surface rents

x

Area of land rents, water surface rents payable

The unit price of land rent, water surface rent is determined under the policies and land prices at the beginning of payment of land rents, water surface rents. The stability cycle of unit price of land rent, water surface rent is determined from the beginning of payment of land rents, water surface rents.

b) In the case of reduction of land rents, water surface rents as stipulated in Article 20 of Decree No. 46/2014 / ND-CP

Land rents, water surface rents payable for 01 year

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Area of land rents, water surface rents payable

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Land rents, water surface rents reduced as prescribed

2. In case of land rents, water surface rents paid in lump-sum for the entire rental time

a) In the case of exemption of land rents, water surface rents as stipulated in Article 19 of Decree No. 46/2014 / ND-CP

Land rents, water surface rents payable

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Unit price of land rent paid in lump-sum for the entire rental term after being minus the exemption time as prescribed (X)

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Area of land rents, water surface rents payable

unit price of land rent paid in lump-sum for the entire rental term after being minus the exemption time as prescribed (X)

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Y/N

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(N-n)

In which:

- Y: The land rent unit price paid in lump-sum for the entire rental time

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- n: Years of exemption of land rents

b) In the case of reduction of land rents, water surface rents as stipulated in Article 20 of Decree No. 46/2014 / ND-CP

Land rents, water surface rents payable

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Unit price of land rent, water surface rent paid in lump-sum for the entire rental term

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Area of land rents, water surface rents payable

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Land rents, water surface rents reduced as prescribed

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Section 4. TRANSITIONAL HANDLING AND SOME SPECIFIC CONTENTS

Article 17. Handling of some transitional contents

1. In case the provincial People's Committee has not issued the land price adjustment coefficients as stipulated in Decree No. 46/2014 / ND-CP and the guidance in this Circular, the land price adjustment coefficients issued in 2014 shall be continues to be used under the provisions of Circular No. 94/2011 / TT-BTC dated June 29, 2011 of the Ministry of Finance and shall be applied until the end of December 31, 2014 to determine the land rent unit price.

2. For the applications for determination of land rents, water surface rents received by competent State agencies before July 1, 2014, such agencies shall continue to take charge the implementation.

3. In case the land is allocated by the State of which land levy is paid before July 01, 2014, the demand for change into land rent form is incurred; land rents shall not be paid for the remaining land use term as prescribed in Clause 2, Article 31 of Decree No. 46/2014 / ND-CP. In case the land is changed into rent form in which the land rental time is longer than the remaining land use term before the land is changed into renting form, the land rents for the prolong time shall be paid .

4. In case the land is allocated by the State of which land levy is not paid before July 01, 2014, when the land is changed into land rent form as prescribed in Clause 2, Article 60 of the Law on Land, in 2013 land rents must be paid as prescribed in Article 4 of Decree No. 46/2014 / ND-CP.

5. In case investors advance the amount of compensation, premises clearance under the plan approved by competent State agencies under the policy of compensation and support for resettlement when the State recovers land under the provisions of the Law on Land in 2003, but the amount of compensation, premises clearance is deducted from the land rents payable annually or they are in the time of exemption of land rents, the remaining amount of compensation, premises clearance shall be converted into the number of years, months of which financial obligations on land rents are fulfilled under the land rent unit price determined on January 01, 2015 under the provisions of Decree No. 46/2014 / ND-CP and shall be determined as the number of years, months of which annual land rents are paid.

6. In case the State rent out the land of which rents are paid in lump-sum for the entire rental time and financial obligations are fulfilled before July 01, 2014, but in the process of the project, the organization rented the land by the State requests changes in the detailed construction planning leading to an increase in the land use coefficient (construction density, work height), the handling shall be as follows:

a) In case land rents are determined and paid under the policy on the collection of land rents and land prices are determined based on the standards of detailed construction planning of the project, when competent State agencies allow to change the standards of detailed construction planning of the project (land use coefficient, construction density, work height) land rents must be determined and collected ( if any) in accordance with the law at the time competent State agencies give the decision to change the standards of the planning.

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Article 18. Handling of a number of specific issues

1. Handling of land rents for investors in construction, business of infrastructure of industrial zones, industrial complexes, processing and exporting zones

a) In case the investors are rented land by the State of which rents is paid annually to invest in construction, business of infrastructure in industrial zones, industrial complexes, processing and exporting zones of which one of the three papers: Investment certificates (investment licenses), decision to rent land, land rent contract granted (signed) by the competent State agencies records the principle of adjustment of land rent unit price but the land with infrastructure is sublet under the form of lump-sum payment for the entire rental time before January 01, 2006, and the land rent unit price have not adjusted as prescribed in Paragraph 2 of Article 9 of the Government’s Decree No. 142/2005 / ND-CP dated November 14, 2005 on collection of land rents, water surface rents, the investors in construction, business of infrastructure must pay in lump-sum the land rents to the State determined on the basis of the time, the area of sublet land, annual land rent unit price determined by competent State agencies under the land rent unit price at the time of subleasing the land (under the principle of an increase of 15% compared with the previous cycle after each stability cycle of 5 years) and are deducted the annual land rents paid to the State determined according to the principles above for this area from the time of subleasing the land (if any).

For example: In 1999, infrastructure trading and construction investment Company (A) was rented the land by the State and pays the rents annually for a period of 50 years. In 2004, Company A signed a contract to Company B to sublease the land under the form of lump-sum payment for the entire rental time for 45 years. At the time of signing such contract (2004), the annual land rents that Company A had to pay is 100 million dong. On January 01, 2015, Company A carries out procedures for payment of the land rents to the State for the subleased land area under the form of lump-sum payment for the entire rental period. The land rents that Company A must pay to the State under the provisions of Paragraph 1 of Article 32 of Decree No. 46/2014 / ND-CP in this case shall be determined as follows:

- The first subleasing cycle from 2004 to 2009 (n1) = 100 million dong x 5 years = 500 million dong

- The second subleasing cycle (n2) = n1 x (1 + 15%) = 575 million dong

- The third subleasing cycle (n3) = n2 x (1 + 15%) = 661, 25 million dong

- The fourth subleasing cycle (n4) = n3 x (1 + 15%) = 760, 44 million dong

- The fifth subleasing cycle (n5) = n4 x (1 + 15%) = 874, 50 million dong

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- The seventh subleasing cycle (n7) = n6 x (1 + 15%) = 1, 156, 53 million dong

- The eighth subleasing cycle (n8) = n7 x (1 + 15%) = 1, 330, 01 million dong

- The ninth subleasing cycle (n9) = n8 x (1 + 15%) = 1, 529, 51 million dong

The total annual land rents of Company A paid to the State determined by the above principles for this area from the time of sublease (2004 through 2014) is: 100 million x 5 years + 100 million (1 + 15%) x 5 years = 1,075 billion dong.

The total amount of Company A (N) = (n1 + n2 + n3 + n4 + n5 + n6 + N7 + n8 + n9) - 1,075 billion dong = 7,325 billion dong.

b) For the cases provided for in Point a, Clause 1 of this Article, when Investment certificate ( investment license) is replaced, the land rent Contract form is changed, in the replaced papers,  there are no longer contents of principles for adjustment of land rent unit price due to provisions of administrative procedures and the land rent unit price is not adjusted as prescribed in Paragraph 2 of Article 9 of Decree No. 142/2005 / ND-CP, the organizations also apply the submission of land rents to the State under the years of which land rents are paid in lump-sum of the secondary investors for the subleased under the provisions of Paragraph 1 of Article 32 of Decree No. 46/2014 / ND-CP as Point a Paragraph 1 of this Article.

2. In case the land users are not rented the land by the competent State agencies, using the land for trading purposes, if the tax authority has notified temporary payment of land rents, water surface rents under the policy and land prices at the time of issuance of Notice of temporary payment under the provisions of Paragraph 3 of Article 32 of Decree No. 46/2014 / ND-CP , handling shall be as follows:

a) The tax authority shall cooperate with relevant agencies to review, summarize and report to the provincial People's Committee for decision to collect land rents under the amount that land users must pay under the Notice of temporary payment and shall not adjust the notified land rents.

b) Based on the land price in the land price List, land price adjustment coefficients, the percentage rate of the land price issued by provincial People’s Committees, the area and the use purpose of land actually used, tax authorities shall cooperate with relevant agencies according to their competence and tasks assigned to determine the land rent unit price and notify the land rents payable annually since Decree No. 46/2014 / ND-CP takes effect. The land users shall not stable land rent unit price under 05 year cycle as specified in Paragraph 1 of Article 14 of Decree No. 46/2014 / ND-CP until the completion of the procedures and decision to rent land by competent State agencies.

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a) The tax authorities shall report to the provincial People's Committee for decision to allow the collection of land rents under the amount that the lands users pay temporarily and shall not adjust the land rents notified for cases provided for in Point a Paragraph 4 of Article 32 of Decree No. 46/2014 / ND-CP.

b) The tax authority shall cooperate with relevant agencies to report the provincial People's Committee on adjustments of the land rent unit as prescribed of the law in each period for cases prescribed at Point b, Clause 4 Article 32 of Decree No. 46/2014 / ND-CP. On that basis, the tax authority shall settle the land rents temporarily paid and collect the land rents payable additionally (if any).

CHAPTER III

IMPLEMENTATION

Article 19. Responsibility for implementation

1. Responsibilities of the provincial People’s Committees shall be ne as follows:

a) Direct financial agencies to take charge and cooperate with relevant agencies at the locality to formulate the specific percentage rate to determine the land rent unit price, land price adjustment coefficients applied at the latest on January, 2015.

b) Direct financial agencies, tax bodies, state treasuries, natural resource and environment agencies shall cooperate with relevant agencies in locality to determine, make collection and payment land rents under the guidance in this Circular.

c) Inspect and handle violations or complaints and denunciations within their competence as prescribed by law.

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2. General Department of Taxation shall direct the determination, collection and payment of land rents, water surface rents in accordance with the reform of administrative procedures; direct the consideration and decision on exemption, reduction of land rents, water surface rents under the provisions of Decree No. 46/2014 / ND-CP and the guidance in this Circular.

3. State Treasuries shall collect land rents, water surface rents in accordance with the collection of the state budget and facilitate the payers of land rents, water surface rents.

Article 20. Effect

1. This Circular takes effect from August 01, 2014.

2. The cases arising after July 01, 2014 shall comply with the provisions of the Government’s Decree No. 46/2014 / ND-CP dated May 15, 2014 defining collection of land rents, water surface rents and the guidance in this Circular.

3. This Circular replaces the Ministry of Finance’s Circular No. 120/2005 / TT-BTC dated December 30, 2005 providing guidance on the implementation of the Government's Decree No. 142/2005 / ND-CP dated November 14, 2005 on collection of land rents, water surface rents; the Ministry of Finance’s Circular No. 141/2007 / TT-BTC dated November 30, 2007 amending and supplementing Circular No. 120/2005 / TT-BTC dated December 30, 2005; the Ministry of Finance’s Circular No. 94/2011 / TT-BTC dated June 29, 2011 amending and supplementing Circular No. 120/2005 / TT-BTC dated December 30, 2005; annuls Form 01 / TMDN, Form No. 02 / TMDN, Form No. 03 / MGTH enclosed herewith the Ministry of Finance’s Circular No. 156/2013 / TT-BTC dated November 05, 2013 providing guidance of a number of articles of the Law on Tax administration, the Law on the amendments to the Law on Tax administration and the Government’s Decree No. 83/2013/NĐ-CP dated July 22, 2013.

Any problems arising in the course of implementation should be reported to the Ministry of Finance for consideration and settlement. /. 

PP. MINISTER
DEPUTY MINISTER




Nguyen Huu Chi

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