Circular No. 02/2007/TT-BTC amending and supplementing Circular No. 95/2005/TT-BTC dated October 26, 2005 of the Ministry of Finance guiding the implementation of regulations on stamp duty under the law.

CIRCULAR

Amending and supplementing Circular No. 95/2005/TT-BTC

dated October 26, 2005 of the Ministry of Finance guiding the implementation

of the regulations on stamp duty under the laws.

___________________________

Pursuant to Decree No. 176/1999/NĐ-CP dated December 21, 1999 of the Government on stamp duty and Decree No. 47/2003/NĐ-CP dated May 12, 2003 of the Government amending and supplementing Clause 6 of Decree No. 176/1999/NĐ-CP dated December 21, 1999 of the Government on stamp duty;

Pursuant to Decree No. 181/2004/NĐ-CP dated October 29, 2004 of the Government on implementing the Land Law;

Pursuant to Decree No. 53/2006/NĐ-CP dated May 25, 2006 of the Government on policies encouraging the development of non-state service providers;

Pursuant to Decree No. 90/2006/NĐ-CP dated September 6, 2006 of the Government detailing and guiding the implementation of the Law on Housing.

The Ministry of Finance guides the amendment and supplementation of some provisions in Circular No. 95/2005/TT-BTC dated October 26, 2005 guiding the implementation of the regulations on stamp duty under the laws as follows:

I. CONTENT OF AMENDMENTS AND SUPPLEMENTS

1. Amend Clause 3, Section III, Part I with new Clause 3 as follows: 

“3. Land granted by the State to organizations and individuals for the following purposes:

a) Land used for public purposes as specified in Point b, Clause 5, Article 6 of Decree No. 181/2004/NĐ-CP dated October 29, 2004 of the Government.

b) Land used for exploration, exploitation of minerals, scientific research according to permits issued by competent state authorities.

c) Agricultural land, forestry land, aquaculture land, and salt production land.

d) Land for constructing houses for sale where organizations and individuals permitted to engage in housing business have paid land use fees as prescribed by law (except for cases of constructing houses for residential purposes, for operating guesthouses, hotels, or other business activities); land granted by the State to economic organizations for investment in infrastructure construction for transfer or lease, regardless of whether it is within or outside industrial zones or export processing zones.

Organizations and individuals declaring stamp duty on land as provided in this Clause must have: A decision on land grant from a competent state authority (a notarized copy or certified by a competent state authority), or a confirmation from the People's Committee of communes, wards, or towns regarding the allocation of agricultural, forestry, aquaculture, and salt production land (for households and individuals as specified in Point c).

In cases where organizations and individuals are granted land but use it for purposes other than those specified in this Clause, or use it for the specified purpose but it is not land granted by the State (such as transferred land, converted land, reclaimed land...), they must pay stamp duty before obtaining a certificate of land use rights.”

2.Amend the content of Clause 4, Section III, Part I with new content as follows:

“4. Land leased from the State or leased from organizations or individuals who already have legitimate land use rights.”

3. Supplement Clause 8a before Clause 9, Section III, Part I as follows:

“Residential houses of households and individuals established through individual housing development forms as stipulated in Point b, Clause 2, Article 50 of Decree No. 90/2006/NĐ-CP dated September 6, 2006 of the Government detailing and guiding the implementation of the Law on Housing;

Individual housing development forms of households and individuals shall be carried out in accordance with the provisions of Article 41 of the Housing Law 2005, specifically:

1. Individual housing development is the act of households and individuals investing in building houses within their own residential land area.

2. The construction of individual housing by households and individuals can be implemented in one of the following forms:

a) Self-construction of houses;

b) Hiring organizations or individuals to construct houses;

c) Mutual assistance in constructing houses in rural areas.”

4. Amend the beginning of Point b, Clause 9, Section III, Part I as follows:

“b) Assets belonging to the ownership and use of enterprises (state-owned enterprises and other enterprises) that are privatized into the ownership of joint-stock companies. For houses and land managed by state-owned enterprises without certificates of house ownership or land use rights, if privatized into assets of joint-stock companies and the joint-stock company registers ownership and use of such houses and land, they will not need to pay stamp duty.

In case If the joint-stock company does not register ownership and use and transfers such assets to other organizations or individuals who register ownership and use, the organization or individual receiving the assets must pay stamp duty.”

 5. Supplement the end of the fourth bullet point in Point d, Clause 10, Section III, Part I as follows:

"In cases where the asset owner no longer retains the payment receipt for stamp duty, or has lost the receipt, the asset owner may request the tax authority where the stamp duty was collected to check the file and confirm (the head of the tax authority signs, writes full name, and stamps) that the stamp duty was collected or that the asset falls under the category exempt from stamp duty when transferred. Upon receiving the confirmation request from the asset owner, the local tax authority where the stamp duty was collected must, within three working days, check the stored files to confirm whether the asset has been paid stamp duty or not, or is exempt from stamp duty. If it is found that the asset owner has not paid stamp duty, the tax authority shall collect the arrears and impose penalties according to current regulations.

For assets that have been issued certificates of ownership or use rights and have exceeded the retroactive period for stamp duty as stipulated in Clause 3, Article 11 of Decree No. 176/1999/NĐ-CP dated December 21, 1999 of the Government on stamp duty (hereinafter referred to as Decree No. 176/1999/NĐ-CP), the asset owner is not necessarily required to provide the payment receipt for stamp duty or confirmation of payment or exemption from stamp duty issued by the tax authority.”

6. Supplement Clause 15 to Section III, Part I as follows:

"15. Houses and lands under the lawful management and use of non-state entities that have registered ownership rights to houses and land use rights for educational and training purposes; healthcare; culture; sports; science and technology; environment; social welfare; population, family, and child protection and care in accordance with Decree No. 53/2006/NĐ-CP dated May 25, 2006 of the Government on policies encouraging the development of non-state service providers. In cases where enterprises operating under the Law on Enterprises use houses and lands for the aforementioned purposes; or non-state entities that have registered ownership rights to houses and land use rights but actually do not use those houses and lands for the aforementioned purposes must pay the stamp duty or be subject to back payment of stamp duty in accordance with the provisions."

7. Amend Point d, Clause 1 (1.2), Section I, Part II with a new Point d as follows:

“d) For land transferred from organizations and individuals (regardless of whether they engage in business or not), the value for calculating stamp duty is the actual transfer price recorded on the invoice, the transfer contract, purchase and sale documents, or the Stamp Duty Declaration Form, but it shall not be lower than the land price prescribed by the People's Committee of the province applicable at the time of registration.”

8. Amend Point e, Clause 1 (1.2), Section I, Part II with a new Point e as follows:

“e) In cases where the land user has been granted a certificate of land use rights, subsequently permitted by the competent authority to change the purpose of use, and at the time of declaring stamp duty, if the land price prescribed by the People's Committee of the province according to the new purpose of use is higher than the land price recorded in the certificate of land use rights for the previous purpose of use (with positive difference +), then the land user must pay stamp duty based on the difference in value; if the land price according to the new purpose of use is lower than the land price for the previous purpose of use (negative difference -), then the land user does not need to pay stamp duty and cannot be refunded the amount of stamp duty already paid.

In cases where the land user has been granted a certificate of land use rights without paying stamp duty, subsequently permitted by the competent authority to change the purpose of use, and the land according to the new purpose of use falls within the scope requiring stamp duty, the value for calculating stamp duty is the land price according to the new purpose of use prescribed by the People's Committee of the province..

9.Repeal Point g, Clause 1 (1.2), Section I, Part II. 

10. Amend Point 2.3, Clause 2, Section I, Part II with a new Point 2.3 as follows:

“2.3. The remaining quality percentage of houses subject to stamp duty is defined as follows:

a) First declaration of stamp duty: 100%;

b) Subsequent declarations of stamp duty from the second time onwards:

The usage period of the house is calculated from the completion and handover date (or the date of putting into use) to the year of declaration and payment of stamp duty. In cases where the construction year of the house cannot be determined from the available documents, it is calculated from the year of purchasing or receiving the house.”

11. Amend the content of Point b, Clause 3 (3.6), Section I, Part II with a new Point b as follows:

“b) The remaining quality percentage of assets subject to stamp duty is specified as follows:

* First declaration of stamp duty in Vietnam:

- New asset: 100%.

- Imported used assets: 85%.

* Subsequent declarations of stamp duty in Vietnam from the second time onwards:

- Usage period less than 3 years: 85%.

- Usage period from 3 to 6 years: 75%.

- Usage period over 6 to 10 years: 60%.

- Usage period over 10 years: 40%.

* The usage period of assets is determined as follows:

- For assets produced in Vietnam, the usage period is calculated from the production date to the year of declaration of stamp duty;

- For brand-new imported assets, the usage period is calculated from the importation date to the year of declaration of stamp duty. If the importation date cannot be determined, it is calculated from the production date.

- For used imported assets declared for stamp duty in Vietnam from the second time onwards, the usage period is calculated from the production date to the year of declaration of stamp duty, and the asset value for determining the stamp duty value is the price of the corresponding type of asset newly prescribed by the People's Committee of the province at 100%. If the production date cannot be determined, the usage period is calculated from the importation date, and the asset value for determining the stamp duty value is the price of the corresponding used asset (85%).

II. IMPLEMENTATION

This Circular takes effect 15 days after its publication in the Official Gazette. Provisions in Circular No. 95/2005/TT-BTC dated October 26, 2005 of the Ministry of Finance which have not been amended or supplemented in this Circular remain effective.

During implementation, if there are any difficulties, organizations and individuals are requested to promptly report them to the Ministry of Finance for research and supplementary guidance.

                                                                                 SIGNATURE OF THE MINISTER
                                                                                 VICE MINISTER




                                                                                 Truong Chi Trung