Decree No. 120/2010/ND-CP Amending and Supplementing Certain Provisions of Decree No. 198/2004/ND-CP on Land Use Fee Collection dated December 3, 2004 issued by the Government

DECREE

Regarding amendments and supplements to some articles of Decree No. 198/2004/NĐ-CP dated December 3, 2004 of the Government on land use fee collection

Decree on land use fee collection

 _________________________

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Based on the Land Law dated November 26, 2003;

Based on the Investment Law dated November 29, 2005;

Pursuant to the Law on Tax Administration dated November 29, 2006;

Pursuant to the Law amending and supplementing certain provisions of laws related to basic construction investment dated June 29, 2009;

Considering the proposal of the Minister of Finance,

DECREE:

Article 1. Scope of amendment and supplementation

This Decree stipulates the amendment and supplementation of some articles of Decree No. 198/2004/NĐ-CP dated December 3, 2004 of the Government on land use fee collection (hereinafter referred to as Decree No. 198/2004/NĐ-CP).

Article 2. Amendment and supplementation of some articles of Decree No. 198/2004/NĐ-CP as follows:

1. Supplement Clause 2 and Clause 5 to Article 4 on grounds for calculating land use fee as follows:

"2. Land price for calculating land use fee:

a) When the State grants land with land use fee collection not through auction of land use rights, the land price for calculating land use fee is the land price according to the purpose of land granted at the time of the decision on granting land by the competent state agency; in case the actual handover date does not match the date recorded in the decision on granting land, the land price for calculating land use fee is the land price according to the purpose of land granted at the actual handover date.

b) In case the land user is issued a certificate of land use right, house ownership and other property attached to the land (hereinafter referred to as certificate of land use right) for the land currently being used or for changing the purpose of land use, the land price for calculating land use fee is the land price according to the purpose of land use when issuing the certificate of land use right or according to the purpose of land use after changing the purpose of land use at the declaration and submission of complete and valid documents for issuance of the certificate of land use right, for changing the purpose of land use at the competent state agency.

c) The land price for calculating land use fee at points a and b of this clause is the land price prescribed by the provincial People's Committee; in case the land price prescribed by the provincial People's Committee is not close to the actual market price of land use rights transfer under normal conditions, the provincial People's Committee shall decide the specific land price based on the actual market price of land use rights transfer. Specifically, in case of issuing (recognizing) the certificate of residential land use right for the area of land currently being used within the land use quota; land converted to residential purpose within the residential land use quota of households and individuals, the land price for calculating land use fee is the land price prescribed by the provincial People's Committee at the declaration and submission of complete and valid documents for issuance of the certificate of land use right, for changing the purpose of land use at the competent state agency.

5. In case of multi-story buildings attached to land granted by the State for multiple users, the land use fee is allocated to each floor and user.

The Ministry of Finance shall provide detailed guidance on the allocation of land use fee as prescribed in this clause."

2. Amend Clause 4 of Article 5 on land use fee collection when the State grants land as follows:

"4. In case the person receiving land from the State with land use fee collection pre-pays compensation, support, resettlement and organization costs for land clearance and compensation according to the approved plan, they can deduct the prepaid amount from the land use fee payable according to the approved plan; the deduction amount shall not exceed the land use fee payable.

Any remaining compensation, support, resettlement and organization costs for land clearance and compensation according to the approved plan that have not been deducted from the land use fee payable (if any) shall be included in the project investment capital."

3. Amend Clause 3 of Article 7 on land use fee collection when transferring from lease to grant with land use fee collection as follows:

"3. In case the land user transfers from lease to grant with land use fee collection and has previously prepaid compensation, support, resettlement, and organization costs for land clearance and compensation according to the approved plan and has been determined by the competent authority the amount deductible from the lease fee payable but has not yet been fully deducted, now transferring to grant with land use fee collection, they continue to deduct from the land use fee payable; the deduction amount shall not exceed the land use fee payable, any remaining amount not deducted from the land use fee payable (if any) shall be included in the project investment capital.

In case the land user has prepaid lease fee, it can be deducted from the land use fee payable for the remaining period (if any)."

4. Supplement Clause 4 and Clause 5 to Article 8 on land use fee collection when issuing certificates of land use right to persons currently using land as follows:

"4. Organizations that have been granted land without land use fee collection or leased land but have improperly distributed (issued) to households, individuals who are staff members of the organization for housing before October 15, 1993, when issuing certificates of land use right to households, individuals, land use fee shall be collected at 40% of the land price prescribed by the provincial People's Committee as in the case of selling state-owned houses to current tenants according to Decree No. 61/CP dated July 5, 1994 of the Government for the area within the residential land allocation quota; collect at 100% of the residential land price decided by the provincial People's Committee in accordance with the actual market price of land use rights transfer at the time of issuing the certificate of land use right for the area exceeding the residential land allocation quota.

5. Households, individuals currently occupying land for illegal construction of housing, if consistent with the residential area planning and meet the conditions for issuing certificates of residential land use right according to the law, when issuing certificates of land use right to households, individuals, land use fee shall be collected as follows:

a) In case of land use prior to October 15, 1993, land use fees shall be collected at 50% of the land price determined by the provincial People's Committee for the area within the new residential land allocation limit; for areas outside the residential land allocation limit, fees shall be collected at 100% of the residential land price determined by the provincial People's Committee in accordance with the actual market price for land transfer rights at the time of issuance of the land use right certificate.

b) In case of land use from October 15, 1993 to before July 1, 2004, land use fees shall be collected at 100% of the land price determined by the provincial People's Committee for the area within the new residential land allocation limit; for areas outside the residential land allocation limit, fees shall be collected at 100% of the land use fee determined by the provincial People's Committee in accordance with the actual market price for land transfer rights at the time of issuance of the land use right certificate.

5. Amend Clause 5 and supplement Clause 7 to Article 11 on the principles for implementing exemptions and reductions in land use fees as follows:

"5. Exemptions and reductions in land use fees when the State allocates land or permits changes in land use purposes as stipulated in Articles 12 and 13 of this Decree and Article 1 of Decree No. 44/2008/NĐ-CP dated April 9, 2008 of the Government shall only be implemented directly with the beneficiaries and calculated based on the land use fees payable according to Articles 5, 6, 7, 8, 9, and 10 of this Decree.

In cases where the beneficiary of an exemption or reduction in land use fees under the law is permitted by the competent authority to transfer a project to another person in accordance with the law, the transferee shall also be exempted or reduced in land use fees if the post-transfer land use falls within a project that is entitled to preferential land use; otherwise, the transferee must pay the land use fee if the post-transfer land use does not qualify for preferential land use.

In cases where land users who are entitled to preferential land use fees wish to pay the land use fees, they shall fulfill their financial obligations regarding land as if they were not entitled to preferential land use fees.

7. Exemptions and reductions in land use fees for subjects covered by policies and persons who have contributed to the revolution as stipulated in Articles 12 and 13 of this Decree shall also apply when these subjects are allocated residential land or sold resettlement housing by the State.

6. Amend Clause 3 and supplement Clauses 8 and 9 to Article 12 on exemptions in land use fees as follows:

"3. For land allocated for building student dormitories; land for building houses for people displaced due to natural disasters; land for building houses for ethnic minority groups living in particularly difficult economic and social conditions in mountainous regions; land for building houses for workers in industrial zones, export processing zones, and economic zones; land for selling houses (paid in full or in installments), leasing, or lease-purchase for low-income individuals in urban areas.

8. Exempt land use fees within the residential land limit when issuing the first land use right certificate for land converted from non-residential land to residential land through household division for ethnic minority households and poor households in communes classified as particularly difficult in mountainous and ethnic minority regions according to the list of particularly difficult communes specified by the Prime Minister.

9. Exempt land use fees for the area of land allocated for use as the reservoir of a hydropower plant.

7. Amend Clause 2 of Article 13 on reductions in land use fees as follows:

"2. Reduce land use fees within the residential land limit by 50% for ethnic minority households and poor households in areas not covered by Clause 8 of Article 12 of this Decree when authorized by state agencies in accordance with the law on land management to allocate land or recognize (issue land use right certificates) for the first time for land currently being used or when changing the purpose of land use from non-residential to residential. The identification of poor households shall be carried out in accordance with regulations of the Ministry of Labor, Invalids, and Social Affairs.

8. Supplement Clauses 4 and 5 to Article 15 on deadlines for land use fees and other payments as follows:

"4. Households and individuals who change the purpose of land use, receive land use right certificates, and are allocated resettlement land by the State but lack the financial capability to pay land use fees may record a debt for land use fees on the land use right certificate after submitting a request along with the application for issuance of the land use right certificate or the application for change in land use purpose or the application for allocation of resettlement land. When repaying the debt, the land user must pay the land use fee based on the land price at the time of issuance of the land use right certificate and can repay gradually over a maximum period of five years; if the debt is not fully repaid within five years, the land user must pay the land use fee based on the land price at the time of repayment.

For cases where the debt for land use fees was recorded before March 1, 2011 and has not been settled, the provisions on debt repayment in this Decree shall now apply; within a maximum period of five years from March 1, 2011, the land user may settle the debt for land use fees based on the land price at the time of issuance of the land use right certificate; if the debt is not fully repaid within five years, the land user must pay the land use fee based on the land price determined by the provincial People's Committee at the time of repayment.

5. The Ministry of Finance shall take the lead in coordinating with the Ministry of Natural Resources and Environment to guide the procedures and formalities for recording and settling debts for land use fees as stipulated in Clause 4 of this Article.

9. Amend Clause 1 of Article 18 on penalties as follows:

"1. In cases of late payment of land use fees to the State budget, the land user shall be subject to a penalty based on the amount of land use fees payable; the enforcement of penalties for late payment of land use fees shall be carried out in accordance with the provisions of the Law on Tax Administration and guiding documents."

Article 3. Handling certain existing issues when this Decree takes effect:

1. In cases where investors advance funds for compensation, support, resettlement, and organizational expenses for land clearance and compensation according to approved plans under the compensation, support, and resettlement policies when the State recovers land before October 1, 2009, they shall be allowed to deduct land compensation and support costs from the land use fee payable, with the deduction amount not exceeding the land use fee payable.

In cases where investors advance funds for compensation, support, resettlement, and organizational expenses for land clearance and compensation according to approved plans under the provisions of Government Decree No. 69/2009/NĐ-CP dated August 13, 2009, they shall be allowed to deduct the advanced amount from the land use fee payable according to Article 15 of Government Decree No. 69/2009/NĐ-CP dated August 13, 2009.

2. For cases where there are decisions on land allocation by competent state agencies under land laws but have not completed financial obligations regarding the land use fee by March 1, 2011, the following measures shall be taken:

a) In cases where the land use fee payable has been determined and notified by competent state agencies in accordance with the law at the time of determination and notification of payment, the investor shall continue to pay the land use fee into the State budget at the notified rate and shall be subject to late payment penalties as prescribed by law applicable to each period.

b) In cases where the land use fee payable has been determined and notified by competent state agencies but does not comply with the law at the time of determination and notification, the People's Committee of the province shall direct the re-determination based on actual conditions in the locality to ensure compliance with the law. Any additional amount to be paid (if any) shall be notified to the investor for supplementary payment into the State budget without applying late payment penalties for this supplementary revenue during the period before re-determination. For the land use fee already determined and notified by competent state agencies before re-determination, the investor may continue to implement according to the notified amount; if insufficiently paid, the remaining amount must now be paid and subject to late payment penalties as provided in point a of Clause 2 of this Article.

In cases where the land use fee payable has been notified by competent state agencies and the investor has fully paid according to the notified amount into the State budget within five years or more, there is no need to re-determine the land use fee payable.

c) In cases where there is no notification of payment of the land use fee by competent state agencies and the land user has not paid or only temporarily paid part of the land use fee into the State budget without identifying the cause of the delay in payment into the State budget, the following measures shall be taken:

The temporarily paid land use fee into the State budget shall be converted into the area of land that has completed financial obligations (paid land use fee) at the actual time of land handover.

The remaining land area that must pay for land use according to the policy and land price at the actual time of land handover shall be deducted from the advance payment for compensation, support, and resettlement as stipulated by the law on compensation, support, and resettlement at the actual time of land handover; at the same time, additional late payment fees must be paid for the outstanding land use payment to the state budget from the actual time of land handover until the formal notification of payment into the state budget according to the percentage of late payment financial penalty as prescribed by law (appropriate to each period).

d) In cases where the actual land handover has not yet taken place but the competent authority still notifies the land use payment to be made and the investor has already paid the money into the state budget, it shall be considered as a provisional payment and handled according to the provisions set out in point b, Clause 2 of this Article.

3. For housing projects, new urban area projects, and infrastructure investment projects within industrial zones, the time for determining land prices and collecting land use payments shall continue to be implemented in accordance with Resolution No. 33/2008/NQ-CP dated December 31, 2008 of the Government.

Article 4. Implementation provisions

1. This Decree takes effect from March 1, 2011.

2. The following regulations are abolished:

a) Clause 2, Article 8 of Decree No. 198/2004/NĐ-CP dated December 3, 2004 of the Government;

b) Article 5 of Decree No. 84/2007/NĐ-CP dated May 25, 2007 of the Government.

State-owned enterprises that have been assigned by the Ministry of Agriculture and Rural Development to conduct offshore wind power project surveys before the effective date of this Circular shall continue to implement according to the assigned documents; any new matters arising after the effective date of this Circular shall be implemented in accordance with the provisions of this Circular.

The Ministry of Finance shall be responsible for guiding the implementation of this Decree.

The Ministers, Heads of ministerial-level agencies, Heads of government-attached agencies, Chairpersons of provincial People's Committees under the central city shall be responsible for implementing this Decree./.