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THE GOVERNMENT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 59/2014/ND-CP
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Hanoi, June 16,
2014
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DECREE
ON
AMENDMENTS TO THE DECREE NO. 69/2008/ND-CP DATED MAY 30, 2008 OF THE GOVERNMENT
ON INCENTIVE POLICIES ON PRIVATE SECTOR INVOLVEMENT IN EDUCATION, VOCATIONAL
TRAINING, HEALTH CARE, CULTURE, SPORTS AND ENVIRONMENT
Pursuant to the Law on Government organization
dated December 25, 2001;
Pursuant to the Law on Investment dated November
29, 2005;
Pursuant to the Law on Tax administration dated
November 29, 2006; the Law on the amendments to the Law on Tax administration
dated November 20, 2012;
Pursuant to the Law on land dated November 29,
2013;
At the request of the Minister of Finance,
The Government
issues a Decree on amendments to the Decree No. 69/2008/ND-CP dated May 30,
2008 of the Government on incentive policies on private sector involvement
(PSI) in education, vocational training, health care, culture, sports and
environment.
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1. The Clause 1 of Article 1
shall be amended as follows:
“1. Scope of the Decree
The fields that need PSI include: education and
training, vocational training, health care, culture, sports, environment, and
judicial expertise.”
2. The Article 5 shall be
amended as follows:
“Article 5. Lease and construction of facilities
1. Ministries or agencies in charge of private
sector involvement (hereinafter referred to as PSI authorities) and the
People’s Committee of central-affiliated cities and provinces (hereinafter
referred to as the provinces) shall invest in infrastructure, construct a part
of or all of PSI works, or use the existing housing or infrastructure in order
to lease them out to private sector investors (hereinafter referred to as
investors) for limited term according to the government budget and policies on
private sector involvement.
2. In case the government budget is not allocated
or not sufficiently allocated to invest in infrastructure or PSI works, PSI
authorities, People’s Committee of the province shall reach an agreement with
investors on the advance of the rents of infrastructure or buildings related to
private sector involvement in order to invest in construction.
The advance rents shall be converted into number of
years or months in which the rents for infrastructure or PSI works are paid.
3. The rents for infrastructure and a part of or
all of PSI works shall be decided by PSI authorities and the People’s Committee
of the province after reaching an agreement with the investors under following
rule: The rent shall be determined conformably with the rent on the market with
due account taken of the incentive policies of the local government on the date
on which the lease contract is concluded provided that the cost covered the
leased property is included.
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a) Keep investing in completion of the project for
private sector involvement to carry on business as prescribed in regulations of
law if the investor rents infrastructure or a part of PSI works;
b) Include the rent for infrastructure and PSI works
(which is paid or paid an advance) in the project cost as prescribed;
c) Include the additional investment in the
investment capital of the project and use the additional investment property as
collateral for a loan.
5. If PSI authorities and the People’s Committee of
the province wish to contribute capital, or join in joint venture in order to
establish an investor, they may conclude an agreement with the investor on use
of the rents for infrastructure and PSI works or the value of assets on land.
6. When the lease term or capital contribution
expires or the lease or capital contribution as prescribed in Clause 1 and
Clause 4 of this Article terminates ahead of the deadline as prescribed in
regulations of law, the investor shall transfer the whole infrastructure and
building on land to the State.
7. Procedures for the lease of infrastructure and
PSI works, use of the rent for capital contribution to carry out the project
for private sector involvement shall comply with regulations of this Decree and
law on the management and use of state-owned property.
8. The People’s
Committee of the province must enable the investors to invest in construction of schools, hospitals,
recreational centers, sports centers, museums, libraries, culture club,
theaters, cinemas or other PSI works according
to the planning approved by the competent authorities.
9. The Ministry of Finance shall provide guidance
on this Article.”
3. The Article 6 shall be
amended as follows:
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1. An investor is eligible to be leased a piece of
land which is completed the land clearance subject to land rents over entire
lease term by the State to construct PSI works except cases prescribed in
Clause 2 of this Article.
The compensation for land clearance to construct
PSI works shall be provided as prescribed in Clause 5 of this Article.
2. With regard to the investor in the urban areas,
the People’s Committee of the province shall issue regulations on exemption
from or reduction in land rents in every area or sector according to the actual
condition of the local government. The maximum incentive is the exemption of
land rents over the entire lease term of the project; the minimum incentive is
the incentive prescribed in regulations on law on land and law on investment.
At least 06 months from the effective date of this
Decree, the People’s Committee of the province shall issue and announce the
regulations on exemption or reduction in aforesaid land rents with the consent
of the Standing of the People’s Council of province according to the sector and
administrative divisions receiving preferential treatment for PSI.
Every 03 years, the People’s Committee of the
province may amend the List of PSI fields and administrative divisions
receiving PSI preferential treatment in the local governments.
3. In case an investor is transferred a piece of
land to carry out the investment project for PSI works without any change in
land use purposes in accordance with land-use planning, the investor is
eligible to be leased the piece of land by the State as prescribed in law on
land and receive preferential treatment for exemption or reduction of land
rents as prescribed in Clause 1 and Clause 2 of this Article, in particular:
a) In case the investor is exempt from the land
rents over entire lease term of the project, the amount of money paid for the
piece of land shall be concluded in the investment cost of the project;
b) In case the investor is only exempt from the
land rents for a year, the amount of money paid for the piece of land shall be
considered as the advance of land rents which is paid to the State by the
investor as prescribed in law on land. This amount of money shall be determined
according to the use purpose of the transferred land on the date on which the
permission for change in land use purposes is made by the regulatory agencies
provided that it does not exceed the compensation equivalent to the
compensation paid by the State when the land is withdrawn as prescribed in law
on land.
c) The amount of money paid for the piece of land
by the investors as prescribed in Point b of this Clause shall be determined
according to the following rules:
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- In case the land prices subject to the land rents
are determined according to direct comparison method, subtraction method,
income-based method, or surplus-based method, the price of the type of
transferred land shall be also determined according that method on the date on
which the permission for change in land use purposes is made.
In case the land prices subject to the land rents
are determined according to the coefficient-based method, or direct comparison
method, subtraction method, income-based method, or surplus-based method as
prescribed in the Decree of the Government on collection of land rents or water
surface rents.
4. The land rents prescribed in Clause 1 and Clause
2 of this Article shall be exempt or reduced as follows:
a) The investor has PSI project(s) approved by the competent
authorities as prescribed and eligible to rent land from the State to carry out
the project and the approved project satisfying requirements pertaining to
types, scope, and criteria regulated by the Prime Minister shall benefit from
incentive policies on land as prescribed in this Decree from the date on which
the permission for land lease or change in land use purposes is issued by the
competent authority.
b) After the project is completed and put into
operation, if the entity investor fails to meet requirements pertaining to
types, scope or criteria as prescribed in the Decision of the Prime Minister
according to the inspection of the competent authority, the investor must pay
land rents which are exempt or reduced according to the policies and land
prices on the date on which they receive preferential treatment for land as
prescribed in Point a of this Clause and late payment interest subject to the
land rents exempt or reduced as prescribed in law on tax administration;
c) According to the actual condition of the local
government and types of the PSI project, the People’s Committee of the province
shall assign the tax authority to take charge and cooperate with the PSI
authorities and relevant authorities to inspect and determine the satisfaction
of requirements pertaining to types, scope, or criteria as prescribed in the
Decision of the Prime Minister taken by the investor on the date on which the
completed project is put into operation;
d) The inspection and determination as prescribed
in Point b and Point c of this Clause shall be carried out as follows:
- After the completed project is put into
operation, within the period prescribed in the List of types, criteria, or
scope of the fields that need PSI decided by the Prime Minister, the investor
must notify the tax authority of that the operation of the completed project
and send it relevant documents or materials in order for tax authority to
consider making the official decision on exemption or reduction in land rents;
- At least 30 days from the date on which the
notification of the investor is received, the tax authority shall cooperate
with relevant authorities to implement the regulations of Point c of this
Clause. In case the investor fails to meet requirements pertaining to criteria
or scope decided by the Prime Minister, the tax authority must request the
People’s Committee of the province for handling as prescribed in Point b of
this Clause.
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a) The People’s
Committee of the province shall provide compensation for land clearance and allocate
the land after finishing the land clearance in order for the investors to rent
for PSI project according to the local budget;
b) In case the People’s Committee of the province
fails to provide compensation for land clearance and allocate the land after
land clearance in order for the investors to rent for PSI project because of
unbalanced local budget, the compensation for land clearance shall be provided
as follows:
- In case the investor is eligible for exemption
from land rents over entire lease term, it must make a refund of expenditure on
compensation for land clearance according to the plan approved by the competent
authority and this expenditure shall be included in the investment capital of
the project;
- In case the investor is eligible for a part of
exemption or reduction in land rents or is not eligible for exemption or
reduction in land rents, the entity must make a refund of expenditure on
compensation for land clearance according to the plan approved by the competent
authority and this expenditure shall be subtracted from the payable land rents
(if the land rents are paid over the entire lease term) or converted into
number of years or months in which the land rents are paid (if the land rents
are paid annually) as prescribed in law on collection of land rents and water
face rents provided that they do not exceed the payable land rents or deadline
for the payable land rents of the project. The remaining amount of money (if
any) shall be included in the investment capital of the project.
c) In case the investor which is eligible for land
lease by the State voluntarily pays the advance of compensation for land
clearance to the State in order to enhance the progress of land clearance, the
compensation for land clearance shall be provided as follows:
- In case the investor is eligible for exemption
from land rents over the entire lease term, the expenditures on compensation
for land clearance according to the plan approved by the competent authority
shall be included in the investment capital of the project;
- In case the investor is eligible for a part of
exemption or reduction in land rents or is not eligible for exemption or
reduction in land rents, the expenditures on compensation for land clearance
shall be subtracted from the payable land rents (if the land rents are paid
over the entire lease term) according to the plan approved by the competent
authority or converted into number of years or months in which the land rents
are paid (if the land rents are paid annually) as prescribed in law on
collection of land rents and water face rents provided that they do not exceed
the payable land rents or deadline for the payable land rents of the project.
The remaining amount of money (if any) shall be included in the investment
capital of the project.
d) The compensation for land clearance prescribed
in Point b and Point c of this Clause includes compensation, support, and
resettlement and expenditures on organization of compensation for land
clearance.
6. In case the investor is leased a piece of land
subject to lump-sum payment over the entire lease term and it is exempt from
the land rents over the entire period of project or exempt from the land rents
for a number of years as prescribed in Clause 1 and Clause 2 of this Article
but it wishes to pay the land rents (not applicable to incentive policy), the
payable land rents shall be determined according to policy and land prices on
the date on which the competent authority permits the payment. The land rents
shall be subject to land use term which is the remaining term of the project of
investment. The investor shall have rights related to the piece of leased land
for the remaining land use term as prescribed in law on land in proportion to
the type of land use.
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7. In case there are two investors or more who
register one place where the PSI project is carried out, the investor who
satisfy requirements pertaining to scope, quality, effect the best as
prescribed in law on tender and law on land.
8. The investor using the piece of land lawfully
shall be granted Certificate of land use rights, ownership of land and property
on land; shall be protected their lawful rights to use land, ownership of land
and property on land as prescribed. Procedures for land lease, issuance of the
Certificate shall comply with regulations of law on land.
9. The investor must use land for proper purposes,
conform to the planning and comply with regulations of law on land. When the
land lease term expires, if the investor does not wish to keep using or it is
dissolved or it has moved to another place, it is required to return the land
to the State; if it uses the piece of land for improper purposes, its piece of
land shall be withdrawn.
10. The inclusion of the piece of leased land of
investor in the value of assets of the project of investment:
a) In case the investor is leased a piece of land
subject to lump-sum payment over the entire lease term from the State and it is
exempt from the land rents over the entire period of project or the piece of
leased land subject to annual payment, the piece of land shall not be included
in the value of assets of project of investment and it is not exchanged,
transferred, given, or leased; the piece of leased land is not also mortgaged,
guaranteed, or contributed as capital;
b) In case the investor is leased a piece of land
subject to lump-sum payment over the entire lease term or exempt from the land
rents for a number of years, the value of the piece of leased land equivalent
to the payable land rents shall be included in the value of assets of project
of investment. The investor may only transfer, give, or lease the piece of
leased land; mortgage, guarantee, or contribute the piece of leased land in the
proportion to the payable land rents.
11. Transfer of project related private sector
involvement:
a) During carrying out the project, if the investor
fails to keep carrying out the project on the piece of leased land by the State
due to objective reasons, it may transfer this project as prescribed in law on
trading in real estate if the People’s Committee of the province approves the
policies on transfer of project in writing. The transferee of the project must
keep carrying out the PSI project for the proper objectives and land purposes;
b) The value of the transferred project shall be
dealt by the parties, including:
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- The property on land and the total value of the
piece of land if the total land rents (without any exemption or reduction) are
required with regard to the land subject to lump-sum payment over entire lease
term;
- The property and a portion of value of the piece
of land in proportion to the land rents paid to government budget with regard
to the land subject to reduction in land rents.
c) The procedures for the land lease between the
old investor and the new investor when transferring the PSI project shall
comply with law on land.
12. With regard to the land which is lawfully
transferred from organizations, households or individuals without any change in
land use purposes as prescribed in Clause 2 of this Article, the investor may
include the value of the piece of land in the value of assets of the project of
investment and the capital recovery costs as prescribed in regulations of law.
13. The Ministry of Finance shall provide guidance
on this Article.”
4. The Clause 9 Article 18
shall be amended as follows:
“Article 18. Responsibility of the People’s
Committee of the province
9. Responsibility for inspection and observation
Direct Department of Taxation to take charge and
cooperate with the Services of Planning and Investment, Services of Finance,
the Service of Natural Resources and Environment and relevant Services in
charge of PSI in observation of the implementation of PSI projects according to
the requirements approved by the competent authority. If the entities related
to private sector involvement fail to meet requirements approved by the
competent authority, the People’s Committee of the province shall consider
deciding to remove incentives as prescribed in regulations of law".
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1. In case the investors use residential land,
urban area land subject to the List of types, criteria, scope and standards
decided by the Prime Minister, but the People’s Committee of the province has
not promulgated regulations on exemption and reduction of land levies or land
rents as prescribed in Clause 1 Article 6 of the Decree No. 69/2008/ND-CP, the
investors shall be exempt from or reduced in the land rents as prescribed in
this Decree from the effective date of the Decree No. 69/2008/ND-CP.
2. If the investors are allocated land subject to
exemption from land levies or reduction in land levies and they have paid the
remaining land rents as prescribed in law on encouragement to private PSI
before the effective date of this Decree, they may keep using the land for the
remaining land use term but it they are not required to rent the piece of land.
If they change to rent the piece of land, they shall be exempt from the land
rents within the term in which the piece of land is allocated.
3. In case investors are allocated or leased pieces
of land subject to land clearance and they may benefit from incentive policies
as prescribed in the Decree No. 69/2008/ND-CP from the effective date of the
Decree No. 69/2008/ND-CP to the preceding date of August 1, 2014, and the State
does not request to pay the compensation for land clearance, they are not
required to make a refund of this compensation to the State.
4. The Ministry of Finance shall provide guidance
on this Article.
Article 3. Implementation
1. This Decree shall take effect from August 1,
2014.
2. The Clause 2 of Article 4 and Clause 3 of
Article 18 of the Decree No. 69/2008/ND-CP shall be annulled from May 30, 2008
of the Government.
3. Ministers, Heads of ministerial agencies, Heads
of Governmental agencies, the President of the People’s Committee of
central-affiliated cities and provinces shall be responsible for implementation
of this Decree./.
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ON THE BEHALF
OF THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung