Circular No. 183/2015/TT-BTC guides the implementation of payment by land fund for investors implementing construction-transfer investment projects as stipulated in Decision No. 23/2015/QĐ-TTg dated June 26, 2015 of the Government Prime Minister.

CIRCULAR

Guidelines for implementing payment by land fund for investors implementing Construction-Transfer projects as stipulated in Decision No. 23/2015/QĐ-TTg dated June 6, 2015 of the Prime Minister regarding investment under the public-private partnership model;

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

Pursuant to the Law on Management and Use of State Property dated June 3, 2008;

The Government issues this Decree on management and development of industrial clusters.

On the basis of the Investment Law dated November 26, 2014;

Decree No. 215/2013/NĐ-CP dated December 23, 2013 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Finance;

Decree No. 15/2015/NĐ-CP February 14, 2015 of the Government on public-private partnership investment;

Pursuant to Decision No. 23/2015/QĐ-TTg June 26, 2015 of the Prime Minister providing mechanisms for the State to pay by land fund to investors when implementing construction-transfer investment projects;

At the proposal of the Director of the State Asset Management Agency,

The Minister of Finance issues this Circular guiding the implementation of payment by land fund for investors implementing Construction-Transfer projects as stipulated in Decision No. 23/2015/QĐ-TTg June 26, 2015 of the Prime Minister.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Circular guides the implementation of payment by land fund for investors implementing Construction-Transfer projects (hereinafter referred to as BT projects) as stipulated in Decision No. 23/2015/QĐ-TTg dated June 26, 2015 of the Prime Minister (hereinafter referred to as Decision No. 23/2015/QĐ-TTg).

Article 2. Applicability

Clause 3. Investors implementing the BT Contract (hereinafter referred to as the Investor).

2. Agencies, organizations, units authorized by competent state agencies to sign BT contracts, entrusted or assigned tasks to prepare investment, negotiate, and sign BT contracts, and implement BT contracts (hereinafter referred to as authorized agencies) pursuant to Article 8 of Decree No. 15/2015/NĐ-CP dated February 14, 2015 of the Government on investment under the public-private partnership model (hereinafter referred to as Decree No. 15/2015/NĐ-CP).

Article 3. Principles of Payment for BT Projects using State Assets

Clause 1. The use of state assets to pay investors implementing BT Projects must ensure:

Chapter II

SPECIFIC PROVISIONS

Section 1

DETERMINATION OF THE VALUE OF BT PROJECTS AND THE VALUE OF LAND FUNDS FOR PAYMENT

Article 3. Land fund for payment to investors

The land fund for payment to investors as stipulated in Clause 2, Article 4 of Decision No. 23/2015/QĐ-TTg includes:

1. Uncompensated land within the planning and land use plan approved by the People's Committee of the province or centrally governed city (hereinafter referred to as provincial People's Committee) for economic development purposes, which the State will reclaim according to laws on land.

2. Compensated land within the planning and land use plan approved by the provincial People's Committee for economic development purposes according to laws on land.

3. Land of state-owned real estate facilities at the original location used to settle BT projects for constructing works at new locations.

Article 4. Determination of the value of BT projects

1. The value of the BT project recorded in the BT contract includes all compensation, support, and resettlement costs (if applicable); construction costs; equipment costs; project management costs; investment and construction consulting costs; interest on borrowed funds for investment; other costs (excluding contingency costs for additional work volumes and price escalation). The determination of these costs shall be carried out in accordance with laws on investment and construction and related laws.

2. The value of the BT project shall not change from the date it is determined by the competent state agency. Exceptions are made if there is a document from a competent state agency approving adjustments to the scale and technical design of the BT project, leading to changes in the value of the BT project due to interest rates in the financial plan of the BT contract.

a) The adjusted value of the BT project is determined in accordance with laws on investment and construction and related laws at the time the competent state agency issues a document adjusting the scale and technical design of the BT project. The adjusted value is recorded in an appendix to the BT contract signed between the competent state agency (or authorized agency) and the investor (hereinafter referred to as the contracting parties of the BT contract);

b) The adjusted value of the BT project recorded in the appendix to the BT contract is included in the total value of the BT project for settlement and final accounting of the BT contract as stipulated in Article 53 of Decree No. 15/2015/NĐ-CP.

3. The value of the BT project for payment is the settled value of the BT project according to regulations on final accounting of capital investment in construction projects funded by the state budget (hereinafter referred to as the final accounting value of the BT contract).

Article 5. Determining the value of the land fund for settlement

1. For the land fund specified in Clause 1 and Clause 2, Article 3 of this Circular, the value of the land fund for settlement shall be the land use fee and the one-time payment of land rent for the entire rental period. The determination of the value of the land fund for settlement shall be carried out in accordance with the laws on collecting land use fees, land rent, and water surface rent.

2. For the land fund specified in Clause 3, Article 3 of this Circular, the value of the land fund for settlement shall be the value of the land use right and the re-evaluated value of assets on the land (after deducting costs related to determining the value of the land fund for settlement as prescribed). The determination of the value of the land fund for settlement shall be conducted by the Department of Finance, which will submit it to the People's Committee of the province for decision in accordance with the laws on managing and using state assets.

3. The value of the land fund for settlement shall not change from the date when the competent state agency determines it. Except in cases where there is a document from the competent state agency approving the adjustment of the land use plan or construction plan leading to a change in the value of the land fund for settlement.

a) The adjusted value of the land fund for settlement shall be determined according to the laws on collecting land use fees, land rent, and water surface rent or the laws on managing and using state assets at the time the competent state agency issues a document adjusting the land use plan or construction plan. The adjusted value shall be recorded in the Appendix of the BT Contract signed between the parties to the BT Contract.

b) The adjusted value of the land fund for settlement recorded in the Appendix of the BT Contract shall be included in the total value of the land fund for settlement to be paid to the Investor.

4. The actual value of the land fund for settlement is the value of the land fund for settlement after being adjusted according to the Appendices of the BT Contract as stipulated in Clause 3 of this Article (if applicable).

Section 2

PAYMENT PROCEDURE AND PROCEDURES

Article 6. Payment procedure for the land fund that has been cleared

1. Within five working days from the date the People's Committee of the province issues the decision to allocate land or lease land, the parties to the BT Contract shall have the responsibility to determine the interest on borrowed capital investment in the financial plan of the BT Contract up to the date the People's Committee of the province issues the decision to allocate land or lease land; sign the Appendix of the BT Contract recording the adjusted value of the BT Project due to the cessation of interest on borrowed capital investment.

2. The payment procedure for the difference between the value of the land fund for settlement and the adjusted value of the BT Project due to the cessation of interest on borrowed capital investment as determined in Clause 1 of this Article shall be as follows:

a) In case the value of the land fund for settlement is greater than the adjusted value of the BT Project due to the cessation of interest on borrowed capital investment, the Investor must pay the difference in cash into the State budget. The collection and payment of the difference shall be based on the Notice of Payment issued by the Tax Authority and carried out in accordance with the laws on collecting land use fees, land rent, and water surface rent.

When the BT Project is completed and approved by the competent state agency for final settlement of the construction project investment cost, based on the Appendices of the BT Contract, the parties to the BT Contract shall determine the difference between the total adjusted value of the land fund for settlement recorded in the Appendices of the BT Contract as stipulated in Clause 3 of Article 5 of this Circular and the total adjusted value of the BT Project recorded in the Appendices of the BT Contract as stipulated in Clause 2 of Article 4 of this Circular to implement the final settlement as follows:

- In case the total adjusted value of the land fund for settlement is greater than the total adjusted value of the BT Project, the Investor must pay the difference in cash into the State budget;

- In case the total adjusted value of the land fund for settlement is less than the total adjusted value of the BT Project, the State shall pay the difference in cash to the Investor.

After completing the settlement as prescribed herein, the parties to the BT Contract shall sign a confirmation record of completion of the settlement, serving as the basis for terminating the BT Contract in accordance with the law.

b) In case the value of the land fund for settlement is less than the adjusted value of the BT Project due to the cessation of interest on borrowed capital investment, the difference shall be settled by offsetting when the competent state agency approves the final settlement of the construction project investment cost of the BT Project. Specifically, as follows:

Based on the final settlement value of the BT Contract and the actual value of the land fund for settlement, the parties to the BT Contract shall determine the difference between the final settlement value of the BT Contract and the actual value of the land fund for settlement; sign the Appendix of the BT Contract recording the difference to implement the offset settlement:

- In case the actual value of the land fund for settlement is greater than the final settlement value of the BT Contract, the Investor must pay the difference in cash into the State budget;

- In case the actual value of the land fund for settlement is less than the final settlement value of the BT Contract, the State shall pay the difference in cash to the Investor.

In case the State cannot allocate the budget to make the payment, it may negotiate with the Investor to settle the difference by another land fund in accordance with point a, Clause 2, Clause 3 of Article 4 of Decision No. 23/2015/QĐ-TTg.

Article 7. Payment procedure for undeveloped land funds

1. In cases where the land transfer or lease to pay to the Investor before the approval of the final settlement of construction investment capital for the BT Project, the payment procedure shall be implemented according to the provisions of Article 6 of this Circular.

2. In cases where the land transfer or lease to pay to the Investor simultaneously or after the approval of the final settlement of construction investment capital for the BT Project,

Based on the final settlement value of the BT Contract and the actual value of the land fund for settlement, the parties to the BT Contract shall determine the difference between the final settlement value of the BT Contract and the actual value of the land fund for settlement; sign the Appendix of the BT Contract recording the difference to implement the offset settlement:

a) In cases where the actual value of the land fund for payment exceeds the value of the final settlement of the BT Contract, the Investor must pay the difference in cash into the state budget. The collection and payment of the difference shall be based on the Notice to Pay Money issued by the Tax Authority and carried out in accordance with the laws on land use fee collection, land rental fee collection, and water surface rental fee collection;

b) In cases where the actual value of the land fund for payment is less than the value of the final settlement of the BT Contract, the State shall pay the difference in cash to the Investor.

In case the State cannot allocate the budget to make the payment, it may negotiate with the Investor to settle the difference by another land fund in accordance with point a, Clause 2, Clause 3 of Article 4 of Decision No. 23/2015/QĐ-TTg.

Article 8. Using the land fund of state-owned premises and land at the old location to settle the BT Project for constructing works at the new location as stipulated in Article 6 of Decision No. 23/2015/QĐ-TTg

1. The use of the land fund of state-owned premises and land at the old location to settle the BT Project for constructing works at the new location shall be carried out when there is a written approval from the competent authority as specified in Clause 3, Article 6 of Decision No. 23/2015/QĐ-TTg; specifically:

a) The Ministry of Finance for administrative agencies, public service units, and state-owned enterprises under central management holding 100% of the charter capital (hereinafter referred to as state-owned enterprises);

b) Provincial People's Committees for administrative agencies, public service units, and state-owned enterprises under local management.

2. The process of examining the use of the land fund of state-owned premises and land at the old location by administrative agencies, public service units, and state-owned enterprises under central management to settle the BT Project for constructing works at the new location is as follows:

a) Administrative agencies, public service units, and state-owned enterprises directly managing and using premises and land at the old location shall submit a written report on the need and necessity to implement the BT Project for constructing works at the new location and to use the land fund of premises and land at the old location to settle the project; send it to:

- The central supervisory agency (Ministry, agency equivalent to a ministry, agency under the Government, other central agencies) for administrative agencies and public service units;

- The direct representative of the owner at the state-owned enterprise holding 100% of the charter capital (hereinafter referred to as the direct representative of the owner) for state-owned enterprises.

b) The supervisory agency, the direct representative of the owner as specified in point a of this clause shall examine and provide written opinions to the Ministry of Finance requesting to implement the construction project at the new location through a BT Contract and to settle the BT Contract with the land fund of premises and land at the old location.

Within twenty days from the date of receipt of the opinion of the supervisory agency, the direct representative of the owner, based on the regulations of the law on the management and use of state assets, the Ministry of Finance shall examine and seek the opinion of the provincial People's Committee (where the premises and land at the old location are located) on land use planning and construction planning;

c) The provincial People's Committee shall provide opinions on land use planning and construction planning within twenty days from the date of receipt of the document seeking opinions from the Ministry of Finance so that the Ministry of Finance can examine and provide written opinions to the supervisory agency (for administrative agencies and public service units) or the direct representative of the owner (for state-owned enterprises).

3. The process of examining the use of the land fund of state-owned premises and land at the old location by administrative agencies, public service units, and state-owned enterprises under local management to settle the BT Project for constructing works at the new location is as follows:

a) Administrative agencies, public service units, and state-owned enterprises directly managing and using premises and land at the old location shall submit a written report on the need and necessity to implement the BT Project for constructing works at the new location and to use the land fund of premises and land at the old location to settle the project; send it to:

- The local supervisory agency (Department, main management sector, superior agency under the provincial People's Committee) for administrative agencies and public service units;

- The direct representative of the owner for state-owned enterprises.

b) The supervisory agency, the direct representative of the owner as specified in point a of this clause shall examine and provide written opinions to the Department of Finance requesting to implement the construction project at the new location through a BT Contract and to settle the BT Contract with the land fund of premises and land at the old location.

Within twenty days from the date of receipt of the opinion of the supervisory agency, the direct representative of the owner, based on the regulations of the law on the management and use of state assets, the Department of Finance shall take the lead in coordinating with relevant agencies to examine and submit to the provincial People's Committee for approval and provide written opinions to the supervisory agency (for administrative agencies and public service units) or the direct representative of the owner (for state-owned enterprises).

4. Documents for requesting the use of the land fund of state-owned premises and land at the old location to settle the BT Contract include:

a) A written request from the administrative agency, public service unit, or state-owned enterprise directly managing and using premises and land at the old location requesting to use the land fund at the old location to settle the BT Contract (original);

b) A written request from the supervisory agency or the direct representative of the owner (original);

c) Legal documents regarding premises and land at the old location (copy);

d) Other related documents (copy).

5. The payment procedure for cases where the land fund of state-owned premises and land at the old location is used to settle the BT Project for constructing works at the new location shall be carried out according to the provisions of Article 7 of this Circular.

6. The payment of the difference between the value of the land fund for payment and the adjusted value of the BT Project due to the cessation of interest on borrowed investment capital (in cases where the final settlement of construction investment capital for the BT Project has not been approved) or the value of the final settlement of the BT Contract shall only be carried out in cash.

Article 9. Documents and Payment Procedures

1. Payment Documents The parties to the BT Contract shall establish, manage, and store payment documents in accordance with the laws on investment and construction.

2. Payment Procedures

a) Based on the actual progress of the BT Project and the date when the provincial People's Committee issues the decision to allocate land or lease land for payment to the Investor, the parties to the BT Contract shall be responsible for implementing payments in accordance with this Circular and reporting to the competent authority for approval of payment as follows:

- For payment by state-owned land fund at the original location managed by central administrative agencies, public institutions, and state-owned enterprises, the competent authority shall be the principal agency under the central government or the direct representative of the owner.

- For payment by state-owned land fund at the original location managed by local administrative agencies, public institutions, and state-owned enterprises, and other cases specified in Clause 1 and Clause 2, Article 3 of this Circular, the competent authority shall be the provincial People's Committee.

b) The competent authority as stipulated in point a of this clause shall submit the payment request to the financial agency (Ministry of Finance for cases involving state-owned land fund at the original location managed by central administrative agencies, public institutions, and state-owned enterprises; Department of Finance for other cases).

Within seven working days from the date of receipt of the payment request from the competent authority, the financial agency shall notify the State Treasury to make payment to the Investor in cash or collect the payment from the Investor into the state budget.

In the case where the Investor makes payment into the state budget in accordance with the laws on land use fee collection, land lease fee collection, and water surface lease fee collection, the financial agency shall notify the Tax Authority of the difference amount for the Tax Authority to issue a notification of payment to the Investor in accordance with the laws on land use fee collection, land lease fee collection, and water surface lease fee collection, and notify the State Treasury to collect the state budget.

Article 10. Accounting of State Budget Revenue and Expenditure for the Value of Land Fund Payment in the BT Contract

1. The accounting of state budget revenue and expenditure for the value of land fund payment in the BT Contract shall be carried out by the financial agency in accordance with the laws on accounting and state budget management. Specifically, as follows:

a) The Ministry of Finance shall record the central state budget for the corresponding payment value of the BT Contract in cases where the payment is made by state-owned land fund at the original location managed by central administrative agencies, public institutions, and state-owned enterprises.

In the case where the land fund payment is state-owned land managed by the Ministry of National Defense, the accounting of the state budget shall be carried out in accordance with Joint Circular No. 138/2015/TTLT-BTC-BQP dated September 1, 2015, issued by the Ministry of Finance and the Ministry of National Defense.

b) The Department of Finance shall record the local state budget for cases where the payment is made by state-owned land fund at the original location managed by local administrative agencies, public institutions, and state-owned enterprises, and other cases specified in Clause 1 and Clause 2, Article 3 of this Circular.

2. Based on the date when the provincial People's Committee issues the decision to allocate land or lease land for payment to the Investor and the date when the competent authority approves the final settlement of the project investment capital of the BT Project, the financial agency shall carry out the accounting of state budget revenue and expenditure as follows:

a) In the case where the provincial People's Committee has not approved the final settlement of the project investment capital of the BT Project at the time it issues the decision to allocate land or lease land for payment,

- Based on the value of the land fund payment (excluding adjustment values as stipulated in Clause 3, Article 5 of this Circular) approved by the competent authority, record the state budget revenue from land use fee and land lease fee for the value of the land fund payment; simultaneously record the temporary advance expenditure from the state budget for the adjusted value of the BT Project due to the cessation of interest on borrowed investment capital.

The recovery of the temporary advance and the payment of the temporary advance shall be implemented when the principal agency or the direct representative of the owner submits a payment request for the completed and accepted works of the BT Project in accordance with the laws on investment and construction.

Annually at the end of the fiscal year, the competent authority signing the BT Contract (or the authorized agency) shall report to the principal agency or the direct representative of the owner the total amount of state budget expenditure for the payment of the BT Project investment capital in that year and send it to the financial agency.

When the competent authority approves the final settlement of the project investment capital of the BT Project, based on the report from the competent authority signing the BT Contract (or the authorized agency) regarding the final settlement value of the BT Contract, the financial agency shall record the state budget expenditure for the payment of the remaining value of the BT Project investment capital that has been settled.

- Record the state budget revenue from land use fee and land lease fee for the increased adjustment value of the land fund payment (if any) when the Investor pays the money into the state budget.

b) In the case where the provincial People's Committee has approved the final settlement of the project investment capital of the BT Project at the time it issues the decision to allocate land or lease land for payment, based on the actual value of the land fund payment after consolidating the adjustment values as stipulated in Clause 3, Article 5 of this Circular, record the state budget revenue from land use fee and land lease fee and record the state budget expenditure for the payment of the BT Project investment capital, specifically as follows:

- In case the actual value of the land fund for settlement is greater than the settled value of the BT Contract, record income and expenditure based on the settled value of the BT Contract. When the Investor pays money into the state budget, record the state budget revenue from land use fees and land rental fees corresponding to the difference between the actual value of the land fund for settlement and the settled value of the BT Contract.

- In case the actual value of the land fund for settlement is less than the settled value of the BT Contract, record the state budget revenue from land use fees and land rental fees corresponding to the actual value of the land fund for settlement, and record the state budget expenditure for settling the investment capital of the BT Project corresponding to the settled value of the BT Contract.

Section 3

 DETERMINATION OF THE LAND AREA OF THE SETTLEMENT LAND FUND

CORRESPONDING TO THE COMPLETED FINANCIAL OBLIGATIONS

Article 11. Determination of the land area of the settlement land fund corresponding to the completed financial obligations

1. The land area of the settlement land fund corresponding to the completed financial obligations serves as the basis for issuing the Certificate of Land Use Right, House Ownership Right, and Other Property Rights Attached to the Land to the Investor according to point d, Clause 2, Article 5, Clause 10, Article 6 of Decision No. 23/2015/QĐ-TTg, including:

a) The portion of the land area of the settlement land fund corresponding to the completed value of the BT Project according to the progress determined by the competent state agency in accordance with the laws on investment and construction.

Periodically, the parties to the BT Contract shall confirm the volume and value of the completed BT Project in accordance with the laws on investment and construction. The time period for confirming the volume and value of the completed BT Project is stipulated by the parties to the BT Contract in the BT Contract.

b) The portion of the land area of the settlement land fund corresponding to the completed financial obligations of the differential value that the Investor has paid into the state budget as prescribed in point a, Clause 2, Article 6, Clause 1, and point a, Clause 2, Article 7 of this Circular.

2. Based on the value of the project components of the completed BT Project as prescribed in point a, Clause 1 of this Article, the amount of money the Investor has paid into the state budget as prescribed in point b, Clause 1 of this Article, and the actual situation of the settlement land fund, the People's Committee of the province shall direct relevant local agencies to determine the location and area of the settlement land fund to issue the Certificate of Land Use Right, House Ownership Right, and Other Property Rights Attached to the Land to the Investor in accordance with the laws on land.

Chapter III

IMPLEMENTATION

Article 12. Transitional Provisions

1. BT Contracts that settle by transferring a land fund to the Investor to implement another Project, concluded in accordance with the law before the effective date of Decision No. 23/2015/QĐ-TTg, shall be implemented in accordance with the provisions of the signed BT Contract and related laws; they shall not be applied or adjusted according to the guidance provided in this Circular.

2. BT Contracts that settle by transferring a land fund to the Investor to implement another Project, concluded from August 15, 2015, shall be implemented in accordance with Decision No. 23/2015/QĐ-TTg and the guidance provided in this Circular.

Article 13. Effective Date

1. This Circular takes effect from January 1, 2016.

2. During the implementation process, if there are any difficulties, agencies, organizations, and units are requested to promptly report them to the Ministry of Finance for coordination in resolving them./.