Quyết định 189/2000/QD-BTC

DECISION

ISSUING THE REGULATION ON THE LAND, WATER SURFACE AND SEA SURFACE RENTS APPLICABLE TO FORMS OF FOREIGN INVESTMENT IN VIETNAM

THE MINISTER OF FINANCE

Pursuant to the Law on Foreign Investment in Vietnam of December 11, 1996 and the June 9, 2000 Law Amending and Supplementing a Number of Articles of the Law on Foreign Investment in Vietnam;
Pursuant to the Land Law and the Law Amending and Supplementing a Number of Articles of the Land Law;
Pursuant to the Government’s Decree No.24/2000/ND-CP of July 31, 2000 detailing the implementation of the Law on Foreign Investment in Vietnam;
At the proposal of the director of the Public Property Management Department,

DECIDES:

Article 1.- To issue together with this Decision the Regulation on the land, water surface and sea surface rents applicable to forms of foreign investment in Vietnam.

Article 2.- This Decision takes effect 15 days after its signing and replaces the Finance Minister’s Decision No. 179/1998/QD-BTC of February 24, 1998 and Circular No.81/1999/TT-BTC of June 30, 1999.

Article 3.- The ministers, the heads of the ministerial-level agencies and agencies attached to the Government as well as the presidents of the People’s Committees of the provinces and centrally-run cities shall, depending on their respective functions, tasks and powers, have to direct the concerned units to implement this Decision.

REGULATION

ON THE LAND, WATER SURFACE AND SEA SURFACE RENTS APPLICABLE TO FORMS OF FOREIGN INVESTMENT IN VIETNAM
(Issued together with the Finance Minister’s Decision No. 189/2000/QD-BTC of November 24, 2000)

Article 1.- Payers of land, water surface or sea surface rents

Joint-venture enterprises, enterprises with 100% of foreign capital and parties to business cooperation contracts (hereafter referred to as foreign invested enterprises) which are leased land, water surface or sea surface by the Vietnamese State (collectively referred to as land lease) for project execution shall have to pay land rents according to this Regulation.

Article 2.- Non-payers of land rents

1. Joint-venture enterprises and foreign parties shall not have to pay land rents in the following cases:

- Joint-venture enterprises to which the Vietnamese parties contribute capital with land rents;

- Business cooperation contracts in the product-sharing form under which the land rent is already included in the portion of products to be shared to the Vietnamese parties.

- Foreign invested enterprises which do not rent land directly from the State but rent workshops, offices, warehouses or sub-rent land with infrastructure already built thereon from economic organizations licensed to sub-lease land by the competent State agencies.

2. The Vietnamese parties to joint ventures or business cooperation contracts shall have to determine the capital contribution to joint ventures with land rents according to the provisions of this Decision.

Article 3.- The land, water surface and sea surface rent rates:

1. Urban land:

1.1. Urban land is the land in the inner cities, provincial towns and district towns as prescribed in Article 55 of the Land Law. The urban land rent rates are prescribed as follows:

Calculation unit: USD/m²/year

1.2. For urban land in areas with extremely difficult socio-economic conditions, the land rent rates shall be equal to 50% of the rates prescribed in Clause 1.1 of this Article. Particularly for district towns in areas with difficult or extremely difficult socio-economic conditions, the applicable land rent rates shall be the minimum rates of the rate bracket prescribed in Clause 1.1 of this Article, without calculating coefficients.

The areas with difficult or extremely difficult socio-economic conditions are specified in Sections A and B, Part III of Appendix Ib on the List of the areas where investment is encouraged (not printed herein).

1.3. The urban land rent rate is determined as follows:

      The                The minimum                                                                         The
    annual                  rent rate                    The                       The                 production-
      land      =       prescribed for     x      location      x      infrastructure    x       business
   rent rate           each urban land         coefficient             coefficient                  line
    (USD/                 category                                                                       coefficient
   m²/year)            (USD/m²/year)

The coefficients are determined as follows:

a/ The location (site) coefficient:

- The coefficient of 4 shall apply to Location 1 land lots with their frontages facing major urban thoroughfares and with locations adjacent to intra-municipal communication links, which are very convenient for production, business and daily-life activities and capable of yielding the highest profits and have the actual highest land price;

- The coefficient of 3 shall apply to Location 2 land lots with their frontages not facing major thoroughfares or land plots in alleys directly linking to the main streets, which are convenient for production, business, service and tourist activities as well as for daily life, capable of yielding less profits than Location 1 land and have an actual land price lower than the actual price of Location 1 land;

- The coefficient of 2 shall apply to Location 3 land lots with their frontages not facing streets, which are relatively convenient for production, business and daily-life activities, capable of yielding profits less than Location 2 land and have an actual land price lower than the actual price of Location 2 land;

- The coefficient of 1 shall apply to Location 4 land lots without any sides facing any street or alley, which are less convenient for production, business and daily-life activities and have the lowest land price in urban areas.

On the basis of the above-mentioned provisions and depending on the characteristics of each urban area, when determining land rent rates for those land lots that have conditions falling in between the conditions of two kinds of location, a coefficient in between the two coefficients of these two kinds of location may be applied.

b/ The infrastructure coefficient:

- The coefficient of 2 shall apply to land lots that fully meet the following conditions:

+ Convenient communications;

+ With power supply stations locating near the project execution sites, which can meet the projects’ demand;

+ With water supply systems near the project’ fences which can be used for the projects.

- The coefficient of 1.7 shall apply to land lots that lack one of the above-mentioned conditions.

- The coefficient of 1.4 shall apply to land lots that lack two of the above-mentioned conditions.

- The coefficient of 1 shall apply to land lots that lack all of the three above-mentioned conditions.

c/ The production-business line coefficient:

- The coefficient of 1.0 shall apply to Group 1 production-business lines other than those mentioned in Group 2 below;

- The coefficient of 1.5 shall apply to Group 2 production-business lines, including trade and tourism, hotels, restaurants, financial leasing, consultancy, brokerage, real estate (except for infrastructure businesses and construction of dwelling houses for sale or lease), finance, banking, insurance and auditing;

In cases where a project involves various production-business lines with different coefficients, the land rent rate shall be calculated for each production-business line on the basis of the land area used for such line so as to determine the aggregate land rent rate. If the land area used for each production-business line cannot be determined, the production-business line coefficient applicable to the total land area rented by the project shall be the coefficient of the project’s principal production-business line.

1.4. For the land used to be the non-urban land, which now becomes urban land due to the establishment or merger of urban districts, wards or district townships, within 5 years from the year the establishment decision is issued, the president of the provincial-level People’s Committee may decide the land rent rates applicable thereto according to the pre-establishment or pre-merger land rent rates, then adjust such rates in conformity with the infrastructure development level.

2. Non-urban land:

Non-urban land is the land not defined in Clause 1 of this Article, the non-urban land rent rates are prescribed as follows:

2.1. For residential land, special-purpose land, agricultural land, forestrial land, land with water surface for aquaculture, unused land (which can be used for agriculture, forestry, aquaculture or salt-making).

a/ For land of rural communes adjacent to inner urban areas:

Calculation unit: USD/m²/year

b/ Remaining areas:

Calculation unit: USD/m²/year

c/ Plain communes in areas with difficult or extremely difficult socio-economic conditions may apply the rent rates for the midland communes.

d/ The non-urban land rent rate is determined as follows:

  The annual           The minimum
   non-urban               rent rate                   The                     The
    land rent      =    prescribed for     x     location     x     infrastructure
  rate (USD/           each category         coefficient           coefficient
    m²/year)             of communes

2.2 The coefficients are prescribed as follows:

a/ The location (site) coefficient:

+ The coefficient of 3 shall apply to Location 1 land lots that have at least one side adjacent to an urban area, to key communication links or along a major axis road or adjacent to an industrial zone, a trading or service area, which are convenient for production, business, service and tourist as well as daily-life activities, and capable of yielding highest profits and with the highest actual land price;

+ The coefficient of 2 shall apply to Location 2 land lots other than those of Locations 1 and 3;

+ The coefficient of 1 shall apply to Location 3 land lots that are far from roads, less convenient for production, business, service, tourist as well as daily-life activities and with the lowest average land price.

For those land lots with conditions that falling in between the two kinds of location, a coefficient in between the two coefficients for these two kinds of location may be applied.

b/ The infrastructure coefficient:

- The coefficient of 2 shall apply to land lots that fully meet the following conditions:

+ Convenient communications;

+ With power supply stations located near the project execution sites, which can meet the projects’ demand;

+ With water supply systems located near the projects’ fences which can be used for the projects.

- The coefficient of 1.5 shall apply to land lots that lack one or two of the above-mentioned conditions.

- The coefficient of 1 shall apply to land lots that lack all of the three above-mentioned conditions.

c/ The production-business line coefficient: shall not be calculated.

2.3. With regard to non-urban land which is neither residential land nor special-purpose land and can be used for agricultural production, forestry or aquaculture only if investment is made to improve it, the land rent rate shall range from USD 50 to 600 per hectare/year and the specific rate applicable to each project shall be determined according to Clauses 2.1 and 2.2. of this Article. Particularly for land of rock mountains, bare hills and unusable poor land, if it is used for projects outside the fields of industrial production, service, tourism, trade or mineral exploitation, the land rent rate shall range from USD 30 to 100 per hectare/year;

2.4. In cases where land is used for agricultural production, forestry or aquaculture, the land rent rate shall be equal to 50% of the rate prescribed in Clauses 1 and 2 of this Article.

3. Water surface and sea surface rents:

3.1. The rent rate applicable to river, lake or bay water surface shall range from USD 75 to 525 per hectare/year. Particularly for architectural works constructed on water surface in inner urban area, the land rent rate applicable to urban land prescribed in Clause 1 of this Article shall apply.

3.2. The rent rate applicable to sea surface shall range from USD 150 to 600 per km²/year. In cases where an unfixed area of sea surface is rented, the rent rate of between 1,500 and 7,500 USD/year shall apply.

4. The land rent rate applicable to industrial parks, export-processing zones and hi-tech parks

The land rent rate applicable thereto shall be equal to 80% of the rate prescribed in Clauses 1, 2 and 3 of this Article.

5. For the following projects, the land rent rate shall be equal to the minimum rate prescribed for each land category, without calculating coefficients:

- Projects that do not use land surface (not affecting on-land production activities) but use the space above the land (except for aviation operations) such as construction of fly-overs, conveyors and other similar cases;

- Mineral prospection, exploration and exploitation projects involving regular use of land.

- Projects using land for the construction of dwelling houses for workers (including foreign workers), schools, hospitals, scientific research institutions and other infrastructure works outside industrial parks’ fences.

6. The following cases shall not be subject to land-rent payment:

- Mineral prospection and exploration, construction of underground works without affecting the current use of land by organizations and individuals, but any damage caused thereby must be compensated in accordance with the Law on Minerals;

- Underground mineral exploitation activities without using land surface; but any damage caused thereby must be compensated in accordance with the Law on Minerals.

Article 4.- Obligations of land-renting organizations and individuals

Apart from paying land rents at the land rent rates prescribed in this Regulation, the land-renting organizations and individuals shall have to compensate losses of land and property affixed thereto to the people who have their land recovered for lease to them in accordance with the provisions of Vietnamese law.

Article 5.- Adjustment of land rent rates

The land rent rate applicable to each project shall be stable for at least 5 years. When being increased, such rent rate must not exceed the previously prescribed rate by 15%; if the lease duration remains under 5 years counted from the time of determining the previous applicable rent rate, such land rent rate still applies for the rest of the 5-year term before the application of the new rate.

Any adjustment to increase land rent rates shall not apply to the following cases where:

1. The rent has been paid in lump sum at the beginning for the whole operation duration of the project and the rent rate has already been determined and the rent has been paid in advance before the time of adjustment;

2. The rent has been paid in lump sum for each multi-year leasing period right in the first year of such period, during which the rent rate is increased.

3. The Vietnamese parties are permitted by the State of Vietnam to use land rents as capital contribution to the joint ventures or to business cooperation contracts with foreign organizations and/or individuals and the land rent rate has been determined before the time of adjustment.

Article 6.- Competence to determine land rent rates

Basing themselves on this Regulation and at the proposals of the directors of the provincial/municipal Finance-Pricing Departments, the People’s Committees of the provinces and centrally-run cities shall decide or adjust the land rent rate applicable to each investment project.

 In case of divergence of opinions on land rent rates between the land renters and the agencies competent to decide the land rent rates, the handling decisions of the Finance Ministry shall be the final ones.

Article 7.- Time for starting to calculate land rents

The time for starting to calculate a land rent is the time an enterprise is assigned land for use.

Article 8.- Land rent exemption and reduction

1. Investment projects in the forms of Build-Operate-Transfer (BOT), Build-Transfer-Operate (BTO) or Build-Transfer (BT) shall be entitled to land rent exemption or reduction as stipulated by the Government.

2. The land rent shall be exempt during the period of project’s capital construction. Where a project is composed of different items or the construction stages are independent from each other, the capital construction duration shall be calculated for each item or each separate construction stage; if not, it shall be calculated according to the item with the largest investment capital percentage.

For forestation projects, they shall enjoy the 90% reduction of the payable land rent during their business period.

3. The land rent exemption shall apply from the date the capital construction is completed and the projects are put into use as follows:

3.1. Seven (7)  years for projects of investment in the areas with difficult socio-economic conditions, and those on the lists of projects with special investment encouragement and projects with investment encouragement.

3.2. Eleven (11) years for projects of investment in the areas with extremely difficult socio-economic conditions.

The lists of projects with special investment encouragement, projects with investment encouragement, areas with difficult socio-economic conditions and areas with extremely difficult socio-economic conditions shall comply with the provisions in Appendix Ib to this Regulation (not printed herein).

4. For projects concurrently eligible for different land rent reduction levels or exemption prescribed in Clauses 1 and 2 of this Article, they shall enjoy either the exemption or the highest reduction level.

5. For projects meeting with difficulties, thereby having to suspend their operations or capital construction, the land rent exemption shall apply as follows:

5.1. Projects that have to suspend the capital construction shall, in the suspension duration, be entitled to the land rent exemption for the project construction land area according to certification by the investment licensing bodies.

5.2. Projects that are conducting production and/or business operations but have to suspend such operations shall, in the suspension duration, be entitled to the land rent exemption according to certification by the investment-licensing bodies.

6. In cases where the land rent is paid in lump sum for many years right in the first year, it shall be reduced as follows:

6.1. A 5% reduction of the five-year land rent, if the rent is fully paid for the whole 5 years; if it is paid in lump sum for a period of more than 5 years, each additional year shall be entitled to 1% reduction of the total land rent payable for the period (payment for 6 years shall be entitled to 6% reduction, payment for 7% shall be entitled to 7% reduction...) but the total reduction amount must not exceed 25% of the land rent to be paid for such period; In cases where the land rent is paid in lump sum for a period of more than 30 (thirty) years, a 30% reduction of the payable land rent shall apply.

6.2. Projects that have enjoyed the land rent reduction or exemption according to the provisions in Clauses 1, 2, 3 and 5 of this Article, if having the land rent paid in lump sum, shall further enjoy the land rent reduction prescribed at Point 6.1, Clause 6 of this Article. The additional land rent reduction shall be calculated in prescribed percentage (%) over the land rent amount payable for such time.

7. The land rent exemption or reduction under this Decision shall apply to all foreign investment projects in Vietnam.

For the already licensed projects that are in the period of capital construction and enjoying the land rent reduction under Decision No.179/1998/QD-BTC of February 24, 1998, they shall now be entitled to the land rent exemption according to the provisions in Clause 2 of this Article for the remaining duration of capital construction.

For projects that have been put into operation from the date of capital construction completion till the effective date of this Decision but the time for land rent exemption under the provisions in Clause 3 of this Article has not expired, they shall still be entitled to land rent exemption for the remaining duration.

Article 9.- Provisions on land rent payment

1. The land rent payment is prescribed as follows:

1.1. Enterprises shall have to submit the land rent payment declaration and relevant documents to the land-rent collecting agencies within one month from the time of calculating the land rent under the provisions of Article 7 of this Regulation.

1.2. The basis for calculating land rent shall be the leased land area, the lease duration and the land rent rate, of which:

- The land area subject to the rent calculation is the actually assigned land area;

- The land lease duration is the duration stated in the land lease decision issued by a competent State agency;

- The land rent rate is determined according to the decision issued by a competent State agency defined in Article 6 of this Regulation.

1.3. The land rent shall be calculated on the yearly basis. Particularly for the first and last years of the land lease duration, it shall be calculated for the number of months of actual use of land in such years.

1.4. The land rent shall be paid twice a year, with 50% of the payable land rent each time on June 30 and December 31 at the latest.

1.5. The land rent shall be paid either in the US dollar or Vietnam dong; If it is paid in the Vietnamese currency, it shall be converted into the US dollar (USD) at the average exchange rate on the inter-bank foreign currency market, announced by State Bank at the time of payment.

1.6. The land rent shall be paid into the State Budget at the State Treasury designated by the collecting agency and according to the current State budget index. In cases where the land rent is overpaid or reimbursed, the excess amount or the reimbursement shall be deducted from the land rent to be paid for the following period, if there is no following period, such amount shall be refunded from the State budget.

2. In cases where foreign organizations and individuals cooperate with Vietnamese organizations permitted to lease the State-owned land for construction of dwelling houses, they shall have to pay the land rent till the houses are sold. Organizations and individuals that purchase such houses shall have to pay the land use levy in accordance with the provisions of Vietnamese law. Where dwelling houses are built for lease, the land rent must be paid to the end of the land lease terms under the land-leasing contracts.

Article 10.- Land rents in a number of special cases

1. In special cases, for land in downtown areas that may yield special profits and have commercial advantages, a land rent rate higher than the rate set forth in this Regulation may be set for such urban land given that it is so agreed upon by the foreign party.

2. For Vietnamese organizations that are permitted by the State to use their land use right value (land rents) for capital contribution to joint ventures or business cooperation contracts with foreign organizations and/or individuals, the land rent rates shall be agreed upon by the involved parties but must not be lower than the land rent rate prescribed in this Regulation.

2.1. For Vietnamese organizations that are permitted by the State to use their land use right value (land rents) for capital contribution to joint ventures with foreign parties, the land rent amounts contributed as capital to the joint ventures shall be the State’s capital amounts invested in enterprises (the Vietnamese parties) and the enterprises shall have to pay charge for capital use as currently prescribed. The time for calculation and payment of charge for capital use shall be counted from the time the land rents are used for capital contribution to joint ventures.

Particularly for organizations that are leased land by the State and have paid the land rents for the whole lease term, when they are permitted by the State to use their land use right value for capital contribution to joint ventures, such land use right value shall be considered the organizations’ own capital.

2.2. For organizations that have been transferred the lawful land use right from others or assigned land by the State with the collection of land use levy of non-State budget origin or that have used land of households or individuals with the lawful land use right, but such land is not leased by the State, when they are permitted to use the land use right value for capital contribution to joint ventures, such contributed capital amount shall belong to the organizations (enterprises). Organizations having land contributed as capital to joint ventures shall annually have to pay the land use levy to the State according to current law provisions.

2.3. For organizations which are leased land by the State and have to pay compensation for damage, the land use right value contributed as capital to joint ventures shall include also the expenses for damage compensation.

3. For cases that were previously permitted to use the land use right value for capital contribution to joint ventures, such land use right value (land rents) calculated for the whole joint-venture capital contribution period shall be converted into the State’s capital invested in the enterprises or enterprises’ own capital as prescribed in Clause 2 of this Article. The time for starting the calculation and paying charge for capital use shall comply with the provisions at Clause 2.1 of this Article.

3.1. For organizations being subjects defined at Clause 2.1 of this Article, if they have paid the land rents to the State, the paid land rent amount shall be deducted from the payable charge amounts for capital use for the whole period of using the land rents for capital contribution to joint ventures; if the land rents remain outstanding, they shall from now on pay charge for capital use for the whole period subject to land-rent debiting duration.

3.2. For organizations being subjects defined at Clause 2.2 of this Article, if they have paid the land rents to the State, the paid land rent amount shall be deducted from the payable land use levies calculated from the time the land is assigned to them; if the land rents remain outstanding, they shall from now on pay the land use levy for the whole period subject to land-rent debiting duration.

Article 11.- Provisions on handling of violations; commendation and settlement of complaints

1. Handling of violations

- Violations of the regulations on the registration, declaration and payment of land, water surface and sea surface rents shall be sanctioned according to the provisions of the Government’s Decree No. 22/CP of April 17, 1996 on sanctions against administrative violations in the field of taxation;

- For failure to pay land rents or fines on time, a fine of 0.2% of the late paid amount for each day of late payment shall be imposed.

2. Complaints:

Enterprises are entitled to lodge complaints about matters related to land rent (excluding those related to the determination of the leased land areas) to agencies that decide land rent rates and collect land rents.

In cases where an enterprise disagrees with the decision of the People’s Committee or the agency competent to collect land rents, it shall be entitled to lodge its complaints to the Finance Ministry. Within 30 days after the receipt of the complaint, the receiving agency shall have to settle it; for complicated cases, the settlement time limit shall not exceed 45 days. The Finance Ministry’s decision on a complaint settlement shall be the final one.

3. Any organizations or individuals that abuse their position or power to appropriate or cause losses of land rents shall have to compensate the whole appropriated or lost amount and shall, depending on the seriousness of their violations, be disciplined, administratively sanctioned or examined for penal liability in accordance with the provisions of law.

4. People who help detecting the violations prescribed in this Regulation shall be commended or rewarded according to general regulations of the State.

Article 12.- Implementation provisions

1. Foreign-invested enterprises and parties to business cooperation contracts shall have to strictly abide by this Regulation.

2. The General Department of Tax shall have to direct the local Tax Departments to organize the collection of land rents and charge for capital use; determine the already paid land rents to be deducted from the payable land use levies as well as the outstanding land rent amounts in order to collect charge for capital use for the land-rent debiting duration.

The directors of the provincial/municipal Tax Departments shall decide the land rent exemption and reduction according to the provisions of Article 8 of this Regulation.

3. The Finance-Pricing Departments of the provinces and centrally-run cities shall have to:

- Determine the land rent rates and submit them to the People’s Committees of the provinces and centrally-run cities for decision;

- Determine the land use right value contributed as capital to joint ventures and the proportion of the State’s capital being the land use right value at enterprises, including cases where the land has been rented and the contracts on the hand-over and receipt of land-rent debts have been signed, which are now subject to the contribution of the land use right value as capital to joint ventures.

- Periodically report to the Finance Ministry the land rent rates applicable to the licensed investment projects operating in their respective localities.

4. The land, water surface and sea surface rent rates stipulated in this Regulation shall apply to all foreign investment projects operating on the Vietnamese territory.

The People’s Committees of the provinces and centrally-run cities shall decide to adjust the land rent rates for projects with the land rent rates higher that the rates set forth in this Regulation at the proposals of the directors of the Finance-Pricing Departments of the provinces and centrally-run cities.

Any problems arising in the course of implementation should be reported to the Finance Ministry for study and settlement.