Decision No. 23/2015/QD-TTg stipulates the state mechanism for paying investors with land funds when implementing construction-transfer investment projects.

Pursuant to …;

Article 24regarding the mechanism for the state to settle with land fundsfor investors when implementing investment construction projectsunder the build-transfer model°

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

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;

Pursuant to the Law on Legislative Acts of 03 June 2008;

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

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

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

At the proposal of the Minister of Finance,

The Prime Minister issues this Decision to regulate the mechanism for the State to settle with land funds for Investors when implementing Investment Construction Projects under the Build-Transfer model.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Decision regulates the mechanism for the State to settle with land funds for Investors when implementing Investment Construction Projects for works under the Build-Transfer Contract (hereinafter referred to as BT Project).

Article 2. Applicability

1. The competent state agency signs the Build-Transfer Contract (hereinafter referred to as BT Contract).

2. The Investor implementing the BT Contract (hereinafter referred to as the Investor).

3. Other agencies, organizations, and individuals related to the implementation of the BT Project.

Article 3. Principles for settling the BT Project with land funds

1. The value of the BT Project is determined according to the laws on investment and construction.

2. The value of the land fund for settling the Investor is determined according to the laws on land.

3. Settling the BT Project with land funds shall be carried out on the principle of equal value, offsetting the difference between the value of the BT Project and the value of the land fund for settlement.

4. The time for settling the BT Project with land funds is the time when the People's Committee of the province or centrally governed city (hereinafter referred to as the Provincial People's Committee) issues the decision to allocate land or lease land to the Investor. The issuance of the decision to allocate land or lease land can be implemented simultaneously or after the completion of the BT Project according to Clause 3, Article 43 of the Government Decree No. 15/2015/NĐ-CP dated February 14, 2015 on investment under the public-private partnership model.

Chapter II

SPECIFIC PROVISIONS

Article 4. Land fund for settling the Investor

1. The land fund for settling the Investor shall apply the form of allocating land with payment for land use rights or leasing land with one-time payment for the entire lease period.

2. The land fund for settling the Investor includes:

a) Land determined in the planning and land use plan approved by the competent state agency for economic development purposes according to the laws on land;

b) Land from the existing facilities at the old location used to settle the BT Project for constructing works at the new location.

3. The competent state agency selecting the land fund for settling the Investor as stipulated in Point a, Clause 2 of this Article must ensure the following two conditions simultaneously:

a) Compliance with the planning and land use plan approved by the competent state agency;

b) The value of the land fund for settlement is equivalent to the approved value of the BT Project.

Article 5. Using the land fund to settle the BT Project

1. For the land fund that has not yet been cleared of surface rights, based on the position and area of the land fund proposed for settlement by the Provincial People's Committee, taking into account the proposal of the competent state agency signing the BT Contract and the proposal of the Investor, the Provincial People's Committee shall issue a commitment letter to the Investor regarding the use of the land fund to settle the BT Project; at the same time, instruct relevant local agencies and the Investor to carry out the following tasks:

a) Prepare detailed planning at a scale of 1/500 for approval by the competent state agency;

b) Prepare compensation and clearance plans for approval by the competent state agency;

c) Advance compensation and clearance funds according to regulations;

d) Organize the implementation of compensation and clearance according to the approved plan. Based on the results of compensation and clearance, the Provincial People's Committee will issue a decision to allocate land or lease land to the Investor. The determination of the value of the land fund for settlement and the settlement of the BT Project shall be carried out according to Clause 2 of this Article.

2. For the land fund that has completed clearance of surface rights

a) The Provincial People's Committee will issue a decision to allocate land or lease land to the Investor to determine the value of the land fund for settlement. The determination of the value of the land fund for settlement shall be carried out as follows: - In the case of allocating land with payment for land use rights, the value of the land fund for settlement is the land use fee determined at the time of the allocation decision according to the laws on land use fees; - In the case of leasing land with one-time payment for the entire lease period, the value of the land fund for settlement is the land rent paid in one lump sum for the entire lease period determined at the time of the lease decision according to the laws on land rent and water surface rent.

b) The settlement of the BT Project with land funds shall be carried out as follows: Settlement shall be carried out on the principle of equal value. The value of the BT Project is determined according to the laws on investment and construction; the value of the land fund for settlement is determined according to the laws on land. - In the case where the value of the land fund for settlement is higher than the value of the BT Project, the Investor must pay the difference in cash to the state budget according to the laws on land use fees, land rent, and water surface rent. - In the case where the value of the land fund for settlement is lower than the value of the BT Project, the State shall settle the difference for the Investor in cash or with another land fund meeting the conditions stipulated in Point a, Clause 3, Article 4 of this Decision at the time of final settlement of the BT Project according to the laws on investment and construction. The value of the BT Project and the value of the land fund for settlement shall not change from the date the competent state agency determines the value of the BT Project and the value of the land fund for settlement according to the laws. Except in cases where there is a document from the competent state agency approving adjustments: - Adjusting the scale, technical design of the BT Project, interest on loans in the financial plan of the BT Contract leading to changes in the value of the BT Project; - Adjusting the planning leading to changes in the area, purpose of use, and duration of use of the land fund for settlement. The adjusted value shall be settled through offsetting at the time of final settlement of the BT Project according to the laws on investment and construction.

c) The interest on loans in the financial plan of the BT Contract ceases from the date the Provincial People's Committee issues the decision to allocate land or lease land.

d) The provincial People's Committee shall issue a land use right certificate to the Investor in accordance with the laws on land for the area of the land fund corresponding to the value of the completed BT Project according to the progress determined by the competent state agency in accordance with the laws on construction investment and for the financial obligation already fulfilled by the Investor for the difference in value as stipulated at Point b Clause of this Article (if applicable).

Article 6. Using the land fund from the old site to settle the BT Project for constructing works at the new site

The use of the land fund from the old site to settle the BT Project for constructing works at the new site shall be carried out in accordance with the laws on managing and using state assets, specifically as follows:

1. Administrative agencies, public service units, and state-owned enterprises (hereinafter referred to as SOEs) holding 100% of the charter capital shall submit a report on the need and necessity to implement the BT Project for constructing works at the new site and to use the land fund from the old site to settle the project to the following entities:

a) The supervisory authority (Ministry, ministry-level agency, government agency, other central agencies) for administrative agencies and public service units under central management; the direct representative of the owner (hereinafter referred to as the direct representative of the owner) for SOEs under central management;

b) The provincial department or sector supervisory authority, higher-level agency under the provincial People's Committee for administrative agencies and public service units under local management; the direct representative of the owner for SOEs under local management.

2. Based on the report of the administrative agencies, public service units, and SOEs mentioned in Clause 1 of this Article, the supervisory authority and the direct representative of the owner shall examine the implementation plan of the BT Project for constructing works at the new site and the use of the land fund from the old site to settle the project and send a written document to:

a) The Ministry of Finance (for administrative agencies, public service units, and SOEs under central management) so that the Ministry of Finance sends it to the provincial People's Committee (where the old site is located) for their opinion on land use planning and construction planning;

b) The provincial Department of Finance (where the old site is located - for administrative agencies, public service units, and SOEs under local management) so that the provincial Department of Finance coordinates with relevant departments and sectors to examine and report to the provincial People's Committee on the policy of implementing the BT Project, land use planning, and construction planning at the old site.

3. Based on the opinions of the provincial People's Committee on land use planning and construction planning, the Ministry of Finance shall consider and provide written comments on the request of the supervisory authority (for administrative agencies and public service units under central management), the direct representative of the owner (for SOEs under central management), and the provincial People's Committee shall consider and provide written comments on the request of the supervisory authority (for administrative agencies and public service units under local management), the direct representative of the owner (for SOEs under local management).

4. The selection of investors to implement the BT Project for constructing works at the new site and to use the land fund from the old site to settle the project shall be carried out in accordance with the laws on bidding.

5. The provincial People's Committee shall issue a decision allocating land or leasing land at the old site to the Investor in accordance with the time specified in Clause 4 of Article 3 of this Decision.

6. Determining the value of the land fund settlement for the old site (including the value of land use rights and the value of property on the land) shall be carried out as follows:

a) Land use fees and lease fees paid once for the entire lease period shall be implemented in accordance with Point a Clause 2 Article 5 of this Decision;

b) The value of property on the land must ensure consistency with the remaining actual value based on the revaluation result, not lower than the new construction cost of the same type issued by the provincial People's Committee multiplied by (x) the remaining quality ratio at the time of the decision to allocate land or lease land for the old site.

7. The payment time to the Investor is the time when the provincial People's Committee issues a decision allocating land or leasing land at the old site to the Investor.

8. Settling the BT Project with the land fund shall be carried out as follows: Settlement shall be made on an equal-value basis. The value of the BT Project shall be determined in accordance with the laws on construction investment; the value of the land fund settlement shall be determined in accordance with the laws on land.

a) In case the value of the land fund settlement is greater than the value of the BT Project, the Investor must pay the difference in cash into the state budget in accordance with the laws on collecting land use fees, collecting land lease fees, and water surface lease fees;

b) In case the value of the land fund settlement is less than the value of the BT Project, the State shall pay the difference to the Investor in cash or with another land fund ensuring the conditions stipulated at Point a Clause 3 Article 4 of this Decision at the time of final settlement of the BT Project in accordance with the laws on construction investment.

9. The loan interest in the financial plan of the BT Contract shall terminate from the date the provincial People's Committee issues a decision allocating land or leasing land at the old site.

10. The provincial People's Committee shall issue a land use right certificate to the Investor in accordance with the laws on land for the area of the land fund corresponding to the value of the completed BT Project according to the progress determined by the competent state agency in accordance with the laws on construction investment and for the financial obligation already fulfilled by the Investor for the difference in value as stipulated at Point a Clause 8 of this Article (if applicable).

Chapter III

IMPLEMENTATION

Article 7. Transitional Provisions

For Build-Transfer (BT) Contracts that provide for payment to the Investor through the transfer of land funds to implement other Projects, which were concluded in accordance with the provisions of the law before the effective date of this Decision, such contracts shall be implemented in accordance with the terms of the BT Contract already signed and relevant legal provisions; this Decision's provisions shall not be applied or adjusted.

Article 8. Effective Date

1. This Decision takes effect from August 15, 2015.

2. The Ministry of Finance shall guide the implementation of the procedures and formalities for the State to pay the Investor through the transfer of land funds as prescribed.

3. The Ministers, Heads of ministerial-level agencies, Heads of central-affiliated agencies, Chairpersons of provincial People's Committees under the direct jurisdiction of the Central Government, and Heads of related agencies and units are responsible for implementing this Decision./.