Thông tư 216/2012/TT-BTC

CIRCULAR

GUIDING THE CALCULATION OF THE LAND RENTS APPLICABLE TO RUBBER PLANTATIONS

Pursuant to the Law on Land dated November 26^th 2003;

Pursuant to the Government's Decree No. 142/2005/NĐ-CP dated November 14^th 2005 on the rent for land and water surface;

Pursuant to the Government's Decree No. 69/2009/NĐ-CP dated August 13^th 2009 on additional regulations on the land planning, land prices, land revocation, compensation and support for resettlement;

Pursuant to the Government's Decree No. 121/2010/NĐ-CP dated December 30^th 2010, amending and supplementing a number of articles of the Government's Decree No. 142/2005/NĐ-CP dated November 14^th 2005 on the rent for land and water surface;

Pursuant to the Government's Decree No. 118/2008/NĐ-CP dated November 27^th 2008, defining the functions, tasks, powers and organizational structure of the Ministry of Finance;

At the proposal of the Director of the Department of Public Property Management;

The Minister of Finance issues a Circular guiding the calculation of the land rent applicable to rubber plantations.

Article 1. Scope and subjects of application.

1. Subjects of application: This Circular guide the calculation of the land rent applicable to rubber plantations, including: the calculation of land rent, the exemption and reduction of land rent, the order and procedure for collecting and paying land rent.

2. Subjects of application:

a) Business organizations; households, and individual that rent land for planting rubber trees;

b) The Vietnamese residing overseas, foreign organizations and individuals (including business organizations in joint ventures among domestic and foreign investors) that rent land for planting rubber trees;

c) The State agencies in charge of land management.

Article 2. The calculation of land rents.

1. The calculation of land rents applicable to the annual collection of land rent (applicable to the subjects prescribed in Point a and Point b Clause 2 Article 1 of this Circular)

The land rent in a year equals (=) the land price multiplied by (x) the percentage (%) for calculating land rent.

a) The percentage (%) for calculating land rent is decided by the provincial People’s Committees at 0.75% of the land price that is used for land rent calculation.

b) The land price for land rent calculation.

The land price for calculating the rent of land for rubber plantation: is the price of local land for perennial lands, decided by the provincial People’s Committees based on the local net income from rubber plants. When a project leases land on multiple districts, the land price is determined according to the overall level of the whole project

2. The calculation of land rents applicable to the lump-sump payment of land rent (applicable to the subjects prescribed in Point b Clause 2 Article 1 of this Circular)

The land rent paid in a lump sum is the land levy payable which is similar to the location of land subject to land levy of which the use purpose and the use term are the same.

The lease term of land of which the land rent is paid in a lump sum is the lease period allowed by the competent authorities (in the Decision on land lease or the Land lease contract) If the land rent is exempted, the lease term of land of which the land rent is paid in a lump sum is the lease period allowed by the competent authorities minus the period of the land rent exemption.

Article 3. The rules for adjusting land rent.

1. When the State leases land and collects land rent annually, the land rent of each project is stable for 05 years. After this period, if the land prices decided by the provincial People’s Committees vary less than 20% of the land price for calculating land rent at the previous time of calculating the land rent, the list of land prices provided by the provincial People’s Committees at the time of adjusting the land rent for calculating the land rent during the next 5-year stable period shall apply, but must not be lower than the land rent of the last stable period.

2. When the land prices decided by the provincial People’s Committees vary more than 20% of the land prices for calculating land rent at the previous time of determining the land rent, the Services of Finance shall determine the coefficient for adjusting the land prices as guided in the Circular No. 94/2011/TT-BTC dated June 29^th 2011 of the Ministry of Finance, amending and supplementing the Circular No. 120/2005/TT-BTC dated December 30^th 2005 of the Ministry of Finance, guiding the implementation of the Government's Decree No. 142/2005/NĐ-CP dated November 14^th 2005 on the collection of the rent for land and water surface, and submit it to the provincial People’s Committees for approval. The Services of Finance (when the land is rented to the overseas Vietnamese or economic organizations, or foreign organizations or individuals), or the district-level People’s Committees (when the land is rented to households and individuals) shall decide the adjustment of the land rent of the next 5-year stable period.

3. After this 5-year period, if the land rent is not able to be adjusted due to some objective reasons, the renter shall keep applying the land rent of the previous stable period to temporarily pay the land rent in such period. When the competent agency adjust the land rent, the land rent shall be paid off according to the adjusted amount.

Article 4. The land price at auctions for the right to rent land

1. At an auction for the right to rent land in the form of annual payment, the land rent is the successful bid. The reserve price of the auction is guided in Clause 2 Article 3 of the Circular No. 48/2012/TT-BTC dated March 16^th 2012 of the Ministry of Finance, guiding the calculation of the reserve price and the financial regime during the land use right auction for allocating land subject to land levies or renting land, and the documents that amend or supplement this Circular.

The land rent in this case is stable for 10 years. After the stable period, the land price shall be adjusted for calculating land rent as follows:

a) If the land prices decided and announced by the provincial People’s Committees After at the time of adjustment vary less than 20% of the successful bid or the land prices for calculating land rent during the previous stable period, the list of land prices provided by the provincial People’s Committees at the time of adjusting the land rent for calculating the land rent during the next 10-year stable period shall apply, but the land rent of this stable period must not exceed 30% of the successful bid or the land rent of the pervious stable period.

b) When the land prices decided and announced at the time of adjustment by the provincial People’s Committees vary more than 20% of the successful bid or the land prices for calculating land rent during the previous stable period, the Services of Finance shall determine the coefficient for adjusting the land prices as guided in the Circular No. 94/2011/TT-BTC dated June 29^th 2011 of the Ministry of Finance, and submit it to the provincial People’s Committees for approval. The Services of Finance (when the land is rented to the overseas Vietnamese or economic organizations, or foreign organizations or individuals), or the district-level People’s Committees (when the land is rented to households and individuals) shall then decide the adjustment of the land rent of the next 10-year stable period, but the land rent of the current stable period must not exceed 30% of the successful bid or the land rent of the previous stable period.

2. At an auction for the right to rent land in the form of lump sum payment, the land rent is the successful bid. The land rent payable is the successful bid multiplied by the rented area. The land rent payable is proportional to the land rent payable in a successful auction for land subject to land levies.

The reserve price of the auction for the right to rent land is guided in Clause 2 Article 3 of the Circular No. 48/2012/TT-BTC dated March 16^th 2012 of the Ministry of Finance, and the documents that amend or supplement this Circular (if any).

Article 5. The deduction of compensation for land clearance.

1. When the renter make advance payment of the compensation, support for settlement, and the cost of compensation for land clearance as prescribed in the Government's Decree No. 197/2004/NĐ-CP dated December 03^rd 2004 on the compensation, supports, and resettlement upon land revocation, the Government's Decree No. 84/2007/NĐ-CP dated May 25^th 2007 on the additional regulation on the issue of the Certificates of land use right, land revocation, the exercise of land use right, the order and procedure for compensation, support, and resettlement upon land revocation, and the settlement of complaints about land (before the effective date of the Government's Decree No. 69/2009/NĐ-CP dated August 13^th 2009 on the additional regulations on the land planning, land prices, land revocation, compensations, supports, and resettlement), he or she shall have the compensation and support deducted from the land rent payable according to the plan approved by competent authorities. The deducted amount must not exceed the land rent payable.

2. When the renter make advance payment of the compensation, support for settlement, and the cost of compensation for land clearance as prescribed in the Government's Decree No. 69/2009/NĐ-CP dated August 13^th 2009, he or she shall be refunded from the State budget by deducting the entire advanced amount from the land rent payable according to the plan approved by competent authorities. The deducted amount must not exceed the land rent payable.

3. When the person who is renting land from the State and collecting annual land rent has deducted the amount of compensation and land clearance according to the plan approved by competent authorities as prescribed in the Government's Decree No. 142/2005/NĐ-CP dated November 14^th 2005 on the collection of the rent for land and water surface, he or she may keep deducting the compensation for land clearance as prescribed in the Government's Decree No. 142/2005/NĐ-CP dated November 14^th 2005 (the deducted amount shall be distributed to the annual land rent payable).

4. From March 01^st 2011 (the date of effective of the Government's Decree No. 121/2010/NĐ-CP dated December 30^th 2010, amending and supplementing a number of articles of the Government's Decree No. 142/2005/NĐ-CP dated November 14^th 2005 on the collection of the rent for land and water surface), the payment of the compensation for land clearance made by the person who is renting land from the State and collecting annual land rent must comply with Clause 5 Article 2 of the Decree No. 121/2010/NĐ-CP and the guidance in Article 3 of the Circular No. 94/2011/TT-BTC dated June 29^th 2011. In particular:

The advance payment of the compensation, support for settlement, and the cost of compensation for land clearance according to the plan approved by competent authorities shall be deducted from the land rent payable, and converted into the period of paying land rent at the time of determining the land rent payable in the first period, an considered the time of paying off the annual land rent.

Article 6. The exemption and reduction of land rent

1. The renters of land for rubber plantations shall have the land rent exempted and reduced as follows:

a) The land rent is exempted and reduced as prescribed in Article 14 and Article 15 of the Government's Decree No. 142/2005/NĐ-CP dated November 14^th 2005 (amended and supplemented in Article 10 Clause 2 of the Government's Decree No. 121/2010/NĐ-CP dated December 30^th 2010);

b) The incentive policies for enterprises investing in agriculture and rural areas prescribed in the Government's Decree No. 61/2010/NĐ-CP dated June 04^th 2010 on the incentive policies for enterprises investing in agriculture and rural areas, and the documents that amend and supplement this Decree (if any);

c) The policies on employing the ethnics legally residing in the central highland provinces in accordance with the Prime Minister’s Decision No. 75/2010/QĐ-TTg dated November 29^th 2010, on the support for the organizations that employ the ethnics legally residing in the central highland provinces, and the documents that amend and supplement this Decision (if any).

2. The rules for the exemption and reduction of land rent are prescribed in Article 13 of the Government's Decree No. 142/2005/NĐ-CP dated November 14^th 2005 (amended and supplemented in Clause 9 Article 2 of the Government's Decree No. 121/2010/NĐ-CP) and guided in Section VI of the Circular No. 141/2007/TT-BTC dated December 30^th 2007 of the Ministry of Finance, guiding the amendment and supplementation of the Circular No. 120/2005/TT-BTC dated December 30^th 2005, guiding the implementation of the Government's Decree No. 142/2005/NĐ-CP dated November 14^th 2005 on the collection of the rent for land and water surface.

Article 7. The order, procedure, and authority for the exemption and reduction of land rent

1. The order, procedure, and the dossier of application for the exemption and reduction of land rent

a) The order and procedure for land rent exemption and reduction are provided in the Law on Tax administration No. 78/2006/QH11 dated November 29^th 2006 of the National Assembly of the Socialist Republic of Vietnam, and the amended and supplemented the Law on Tax administration (if any), the Circular No. 28/2011/TT-BTC dated February 28^th 2011 of the Ministry of Finance, guiding the goods of a number of articles of the Law on Tax administration, guiding the implementation of the  Decree No.  85/2007/NĐ-CP dated May 25^th 2007, and the Decree No. 106/2010/NĐ-CP dated October 28^th 2010 of the Government, and the documents that amend and supplement this Circular (if any).

b) The dossier of application for  land rent exemption and reduction is specified in Clause 6 Article 39 of the Circular No. 28/2011/TT-BTC dated February 28^th 2011 of the Ministry of Finance, including:

- The written application for land rent exemption or reduction, specifying the area, the lease term, the reason for exemption or reduction, the period of exemption and reduction (the original)

- The declaration of land rent (the original).

- The decision on land lease, the decision on changing from allocating land without collecting land levies into renting land made by competent agencies; the land lease contract (an authenticated copy).

- An authenticated copy of the Investment certificate (investment license) or the Certificate of business registration.

- An authenticated copy of the project of investment approved by competent authorities (unless the subjects of land rent exemption or reduction is not a project of investment).

c) Apart from the papers above, the following papers are compulsory for some cases of land rent exemption or reduction:

- For the exemption of the land rent for rubber plantation during the period of  fundamental construction of the rubber plantation, the following papers are required:

+ An authenticated copy of the project approved by competent State agencies as prescribed by laws on investment, specifying the period of fundamental construction of the rubber plantation; if the land is rented by households or individuals, the provincial People’s Committees or a functional agency authorized by the provincial People’s Committees shall approve.

+ The original written certification of the actual area of rubber plantation under the fundamental construction in each year as prescribed by the provincial People’s Committees

- For the exemption of land rent for rubber plantations as prescribed by the laws on land: the papers about the investment incentives that specify the land rent incentives such as: the certificate of investment incentives, the investment license, or the Investment certificate issued by competent State agencies (authenticated copy)

- For the exemption of the land rent for rubber plantations prescribed in the Government's Decree No. 61/2010/NĐ-CP dated June 04^th 2010: the certificate investment incentives issued by the provincial People’s Committee about the agricultural projects eligible for special investment incentives, agricultural projects eligible for investment incentives, and agricultural projects eligible for investment promotions prescribed in the Circular No. 06/2011/TT-BKHĐT dated April 06^th 2011 of the Ministry of Planning and Investment, guiding the dossier, order, and procedure for issuing the certificate of additional investment support and incentives to the investors in agriculture and rural areas prescribed in the Government's Decree No. 61/2010/NĐ-CP dated June 04^th 2010 (the original)

- For the exemption of the land rent for rubber plantations prescribed in the Prime Minister’s Decision No. 75/2010/QĐ-TTg dated November 29^th 2010: the dossier of application for the exemption or reduction of land rent is specified in the Circular No.  203/2011/TT-BTC dated December 30^th 2011 of the Ministry of Finance, guiding the support for the organizations that employ the ethnics legally residing in central highland provinces, and the documents that amend and supplement this Circular (if any).

- For the land rent exemption and reduction decided by the Prime Minister at the request of Ministers, Heads of ministerial-level agencies or Governmental agencies, the Presidents of People’s Committees of central-affiliated cities and provinces, the dossier must include the Decision of the Prime Minister (authenticated copy).

- For the land rent reduction given to the renters that suffer from natural disasters, fire, or force majeure:

+ The data about the actual yield in the previous year in the financial statement (authenticated copy).

+ The written determination of the damage caused by natural disasters, fire, or force majeure, certified by the local People’s Committee or relevant State management agencies (the original).

d) The submission of dossiers of application for land rent exemption and reduction.

The renter shall submit the dossier of application for land rent exemption or reduction together with the land rent at the land use right registration office or a Natural Resources and Environment agency. If the application for the land rent exemption or reduction is not submitted together with the land rent, the dossier shall be submitted at the direct taxation agency.

2. The authority for deciding the land rent exemption and reduction.

The taxation agency shall base on the dossier of application for the exemption or reduction and the land survey dossier (when the application of exemption or reduction is submitted together with the land rent) or the dossier of application for land rent exemption or reduction (when the application is not submitted together with the land rent) to determine the land rent payable and the amount of reduction or exemption.

The Director of the Department of Taxation shall decide the exemption and reduction of the rent for land and water surface for foreign organizations and individuals and Vietnamese citizens residing overseas.

The Director of the Sub-department of Taxation shall decide the exemption and reduction of the rent for land and water surface for households and individuals.

For the exemption of land rent during the fundamental construction of the rubber plantation: the taxation agency shall temporary give the land rent exemption during the years of fundamental construction (except for the ending year); at the end of the fundamental construction of the rubber plantation, the taxation agency shall officially decide the land rent exemption in the fundamental construction period of the rubber plantation.

Article 8. The order for calculating, collecting, and paying land rent.

The order for calculating, collecting, and submitting the land rent is specified in Article 17 and Article 19 of the Government's Decree No. 142/2005/NĐ-CP dated November 14^th 2005, Clause 11 Article 2 of the Government's Decree No. 121/2010/NĐ-CP dated December 30^th 2010, the Law on Tax administration and its guiding documents.

Article 9. Resolving the

For the land lease contracts in which the land rent is annually collected, and the land rent during the stable period (5 years) has been determined, and enjoying the incentives prescribed by laws on land rent collection, after the stable period and incentive period, the land rent prescribed in this Circular shall apply.

Article 10. Implementation organization.

1. Provincial People’s Committees shall direct the financial agencies, taxation agencies, and State Treasuries to cooperate with relevant local agencies in determining the land rent payable, exempted, and reduced, and the collection of land rent applicable to rubber plantation as guided in this Circular, and the policies on the collection of the rent for land and water surface;

2. This Circular takes effect on February 01^st 2013.

People’s Committees of central-affiliated cities and provinces, organizations and individuals are recommended to send feedbacks on the difficulties arising during the course of implementation to the Ministry of Finance for consideration and settlement./.