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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
121/2010/ND-CP
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Hanoi,
December 30, 2010
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DECREE
AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF THE
GOVERNMENT'S DECREE NO. 142/ 2004/ND-CP OF NOVEMBER 14, 2005, ON THE COLLECTION
OF LAND RENTS AND WATER SURFACE RENTS
THE GOVERNMENT
Pursuant to the December 25,
2001 Law on Organization of the Government;
Pursuant to the November 26, 2003 Land Law;
Pursuant to the November 29, 2005 Investment Law;
Pursuant to the November 29, 2006 Law on Tax Administration;
At the proposal of the Minister of Finance,
DECREES:
Article 1. Scope of amendment and supplementation
This Decree
provides for the amendments and supplementations to a number of articles of the
Government's Decree No. 142/2005/ND-CP of November 14, 2005, on the collection
of land rents and water surface rents (below referred to as Decree No.
142/2005/ND-CP).
Article 2. To amend and supplement a number of articles of
Decree No. 142/2005/ND-CP as follows:
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"Article
1. Scope of regulation
This Decree
provides for the collection of land rents and water surface rents when:
1. The State
leases land, including surface land and underground sections of terrestrial
construction works, under the Land Law.
2. The State
leases underground land for the construction of underground works for
commercial purposes under approved plans without using surface land.
3. The form
of land allocation by the State is changed to the form of land lease.
4. The State
leases water surface."
2. To amend Points a and c, Clause 2, Article 2 as follows:
"a/
Overseas Vietnamese and foreign organizations and individuals (including
joint-venture economic organizations between domestic and foreign investors)
that rent land for the implementation of investment projects on agricultural
production, forestry, aquaculture or salt making; for use as ground for
construction of production or business establishments; construction of public
facilities for business purposes; construction of infrastructures for transfer
or lease; for mining activities, production of building materials, making of
pottery articles; construction of houses for sale or lease;
c/ Economic
organizations, households and individuals; overseas Vietnamese and foreign
organizations and individuals (including joint-venture economic organizations
between domestic and foreign investors) that rent water surface or sea surface
not belonging to the land categories specified in Article 13 of the Land Law
for implementation of investment projects."
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1. For cases
of land lease with rent rates being paid annually, the annual rent rate is
equal to 1.5% of the land price based on the use purpose of the rented land
prescribed by People's Committees of provinces or centrally run cities (below
referred to as provincial-level People's Committees) under the Government's
regulations on methods of determining prices and price brackets for land of
different categories.
In case the
land price prescribed by a provincial-level People's Committee at the time of
land lease does not match the land use right transfer price in the market under
normal conditions, the provincial-level People's Committee shall base itself on
the actual market price to decide on a specific price to suit reality.
2. For land
in urban centers, trade or service centers, traffic hubs, or populous areas,
which may yield special profits or be used as ground for production, business
or service activities, provincial-level People's Committees shall base
themselves on the local situation to decide on a land rent rate which must not
exceed 2 limes the land rent rate specified in Clause 1 of this Article.
3. For land
in deep-lying, remote, highland or island areas, areas facing socio-economic
difficulties, and areas facing exceptional socioeconomic difficulties; land
used for agricultural production, forestry, aquaculture or salt making; land
used as ground for production or business activities under projects on domains
eligible for investment promotion or special investment promotion,
provincial-level People's Committees shall base themselves on the local
situation to decide on a minimum land rent rate which, however, must be at
least half of the land rent rate specified in Clause 1 of this Article.
4. In case of
land lease by the State with lump-sum payment of land rents for the whole lease
duration, the payable land rent amount is equal to the payable land use levy
amount for land allocation with the collection of land use levy for land with
the same use purpose and land use duration.
In case the
operation duration of a project, which is eligible for land lease with lump-sum
payment of land rents as specified at this Point, stated in its investment
certificate (investment license) is different from the land lease duration, the
project's operation duration shall be adjusted to suit the lease duration.
5. Land rent
rates in case of auction ofrented-land use rights or bidding for projects
involving the use of rented land shall be the winning bids. Specifically as
follows;
a/ In case of
auction ofrented-land use rights or bidding for projects involving the use of
rented land with lump-sum payment of land rents for the whole lease duration,
the land rent rate is the winning bid. In this case, the payable land rent
amount is equal to the winning bid multiplied by (x) the rented land area
multiplied by (x) the lease duration (equal to the payable land use levy in
cases of auction for land allocation with the collection of land use levy);
b/ In case of
auction of rented-land use rights or bidding for projects involving the use of
rented land with annual payment of land rents, the land rent rate is the
winning bid which shall be kept unchanged for 10 years. Upon the expiration of
this period, the land rent rate shall be adjusted as for case of land lease not
through auction by the State with annual payment but the adjustment level for
the subsequent 10-year period must not exceed 30% of the land rent rate
applicable in the preceding period.
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7. The rent
rate of land for construction of underground works (other than underground
sections of terrestrial construction works) is determined to be up to 30% of
the land rent, rate for surface area with the same use purpose. The specific
rent rate shall be decided by provincial-level People's Committees in
conformity with reality in their localities."
4. To amend Clause 1, Article 6 as follows:
"1.
Based on land prices and rent rates specified in Article 5a of this Article,
provincial-level People's Committees shall provide for a rent rate (at a
percentage of land prices according to use purposes of rented land) for each
category of land, each grade of urban center, commune or region, type of
street, land position or grade."
5. To amend Clause 3, Article 7 as follows:
"3. In
case a person who is leased land by the State has paid in advance compensations
and supports for resettlement and funds for the organization of ground
clearance work under approved plans, the paid amount will be subtracted from
the payable land rent amount under approved plans, but the subtraction level
must not exceed the payable land rent amount.
The remaider
of compensations and supports for resettlement and funds for organization of
the ground clearance work under approved plans which is not yet cleared against
the payable land rent amount (if any) will be calculated as the project's
investment capital."
6. To amend Clause 1, Article 8 as follows:
"1. The
land rent rate applicable to each project shall be kept unchanged for 5 years.
Upon the expiration of this period, if the land price prescribed and publicized
by provincial-level People's Committees fluctuates by 20% at most over the land
price used for calculation of land rent rates applicable at the previous time
of determining the land rent rate, provincial-level Finance Departments (in
case of leasing land to economic organizations, overseas Vietnamese or foreign
organizations or individuals) or district-level People's Committees (in case of
leasing land to households and individuals) shall decide on the land rent rate
to be applied in the subsequent period.
In case the
land price prescribed and publicized by provincial-level People's Committees
fluctuates by 20% or more over the land price used for calculation of land rent
rates applicable at the previous time of determining land rent rates,
provincial-level Finance Departments shall re-determine land prices for
submission to provincial-level People's Committees for the later to make
decisions on adjustment of land prices to serve as a basis for provincial-level
Finance Departments (in case of leasing land to economic organizations,
overseas Vietnamese or foreign organizations or individuals) or district-level
People's Committees (in case of leasing land to households and individuals)
shall decide on the land rent rate applicable in the subsequent (5-year)
period."
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"2. For
projects which had rented land or water surface before January 1, 2006, with
land rents or water surface rents being paid annually but land rent rates have
not yet been adjusted, land rent rates shall be re-determined as follows:
a/ In case
the investment certificate (investment license), land lease decision or land
lease contract granted (signed) by a competent state agency of an investment
project provides for a land rent or water surface rent rate and principles for
adjustment of the rent rate, this project may continue applying the adjustment
principles stated in its investment certificate (investment license), land
lease decision or land lease contract;
b/ For
investment projects not specified at Point a, Clause 2 of this Article, land
rent rates shall be adjusted under Articles 5a, 5 and 6 of this Decree."
8. To add the following Article 12a:
"Article
12a. Determination of financial obligations of investment projects using land
which are currently leased by the Stale to economic organizations with annual
payment of land rents
1. In case
economic organizations which are currently leased land by the State with annual
payment of land rents are permitted by competent authorities to invest in new
real estate projects (for building houses or houses for lease) or projects to
build trade or service centers on land leased by the State:
a/ If they
implement such projects by themselves, they must shift from the form of land
lease with annual payment of land rents to land allocation with the collection
of land use levy;
b/ If they
are permitted by competent state agencies to enter into joint ventures or
associate with other economic organizations (to form a new legal entity), the
new legal entity shall be allocated land with the collection of land use levy
(in case the new legal entity is entitled to land allocation with the
collection of land use levy) or shift to rent land with lump-sum payment of
land rents for the whole lease duration (in case the new legal entity is
entitled to land rent with lump-sum payment of land rent for the whole lease
duration).
2. In case
competent state agencies recover land which is currently leased to an economic
organization for allocation to another economic organization for investment in
new real estate projects (for building houses or houses for lease) or projects
to build trade or service centers, land shall be allocated through auction of
land use rights or land lease with lump-sum payment of land rents for the whole
lease duration.
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9. To amend Clause 2, Article 13 as follows:
"2. In
case land or water surface lessees are eligible for both land or water surface
rent exemption and reduction, they shall be exempt from land or water surface
rent. Upon the expiration of the land or water surface rent exemption duration,
they may enjoy land rent or water surface rent reduction for the remaining
lease duration according to regulations. Those who are eligible for different
reduction levels of land or water surface rents shall enjoy the highest
reduction level."
10. To amend Clause 4. Article 14 as follows:
"4. From
the date the project is completed and commissioned, specifically as follows:
a/ Three (3)
years for projects in domains on the list of those eligible for investment
promotion; at new production or business establishments of economic organizations
which are relocated under plans or due to environment pollution;
b/ Seven (7)
years for investment projects in geographical areas facing socio-economic
difficulties;
c/ Eleven
(11) years for investment projects in geographical areas facing exceptional
socioeconomic difficulties: projects in domains on the list of those eligible
for special investment promotion; and projects in domains on the list of those
eligible for investment promotion which are implemented in geographical areas
facing socio-economic difficulties;
d/ Fifteen
(15) years for projects in domains on the list of those eligible for investment
promotion which are implemented in geographical areas facing exceptional
socio-economic difficulties; and projects in domains on the list of those
eligible for special investment promotion which are implemented in geographical
areas facing socio-economic difficulties.
Lists of
domains eligible for investment promotion, domains eligible for special
investment promotion, geographical areas facing socio-economic difficulties,
and geographical areas facing exceptional socio-economic difficulties are
promulgated by the Government."
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"1. For
case in which land rents or water surface rents is paid on an annual basis:
The amount of
compensations and supports for resettlement and funds for organization of the
ground clearance work already paid in advance (if any) under approved plans and
permitted to be cleared against the payable land rent amount shall be converted
into the number of years or months for which land rent must be paid at the land
rent rate applicable at the time of determining the land rent amount for the
first period and determined as the number of years or months for which annual
land rents have been fully paid. For the remaining land lease duration, the
land rent amount to be paid annually shall be determined as follows:
a/ For normal
cases
Amount
of land or water surface rents to be paid each year
=
Land
or water surface rent rate
x
Area
of rented land or water surface
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b/ For case
eligible for reduction of land or water surface rents as prescribed in Clause 2
or 3, Article 15 of this Decree
Amount
of land or water surface rents to be paid each year
=
Payable
amount of land or water surface rents determined under Point a, Clause 1 of
this Article
-
Amount
of land or water surface rents to be reduced under Clause 2 or 3, Article 15
of this Decree (if any)
Notes :
- Amounts of
compensations and supports for resettlement and funds for the organization of
ground clearance work (if any) shall be converted into the number of years or
months and counted in the duration of land rent payment which, however, must
not be longer than the land rent payment duration.
- A year of
land or water surface rent payment shall be the calendar year which starts from
January 1 through December 31. In case the first or last year of land or water
surface lease is not composed of full 12 months, the rent amount of the first
or last year shall be calculated according to the number of months.
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Payable
land rent amount
=
Price
of land allocation with the collection of land use levy for land of the same
category with the same duration
x
Rented
land area
-
Land
rent amount to be reduced under Clause 1, Article 15 of this Decree (if any)
-
Amount
of compensations and supports for resettlement and funds for the organization
of ground clearance work under approved plans which may be cleared against
the payable land rent amount (if any)
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Payable
Water surface rent amount
=
Number
of years for which water surface rents must be paid
x
Water
surface rent rate
x
Rented
water surface area
-
Amount
of water surface rents to be reduced under Clause 1. Article 15 of this
Decree (if any)
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- The amount
of compensations and supports for resettlement and funds for the organization
of ground clearance work (if any) may be subtracted from the payable land rent
amount to be paid in lump-sum but the subtraction level must not exceed the
payable land rent amount.
- The number
of years for which land or water surface rents must be paid is equal the total
number of years of land water surface lease minus the number of years eligible
for land or water surface rent exemption (if any)."
12. To amend Clause 1, Article 22 as follows:
"1. Land
and water surface lessees who delay the remittance of land or water surface
rents into the state budget shall be fined; the imposition of fines for late
payment of land and water surface rents shall comply with the Law on Tax
Administration and guiding documents."
Article 3. Implementation provisions
1. This
Decree takes effect on March 1, 2011.
2. Handling
of some matters at the effective time of this Decree:
a/ In case
investors paid in advance compensations and supports for resettlement and funds
for the organization of ground clearance work under approved plans according to
policies on compensation, support and resettlement upon land recovery by the
State applicable before October 1, 2009, the compensation and support amount
shall be subtracted from the payable land rent, but the subtraction level must
not exceed the payable land rent.
In case
investors paid in advance compensations and supports for resettlement and funds
for the organization of ground clearance work under approved plans according to
the Government's Decree No. 69/2009/ND-CP of August 13, 2009, the advanced
amount shall be subtracted from the payable land rent under Article 15 of the
Government's Decree No. 69/ 2009/ND-CP of August 13, 2009.
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2. The
following provisions are annulled:
Article 12 of
the Government's Decree No. 69/2009/ND-CP of August 13, 2009, additionally
providing land use plans, land prices, land recovery, compensation, supports
and resettlement.
Article 4. Organization of implementation
The Ministry
of Finance shall guide the implementation of this Decree.
Ministers,
heads of ministerial-level agencies, heads of government-attached agencies and
chairpersons of provincial-level People's Committees shall implement this
Decree.
ON
BEHALF OF THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung