Công văn 4125/TCT-CS của Tổng cục Thuế về việc giải đáp chính sách tiền thuê đất

To: Department of Taxation of Nam Dinh province

Answering official dispatch No. 4339/CT-QLCKTTD dated July 31, 2012 of the Department of Taxation of Nam Dinh province on the annual land rent payable. In this regard, the General Department of Taxation has the following opinions:

-In Clause 2, Article 9, Decree 142/2005/ND-CP dated November 14, 2005 by the Government on land rent or water surface rent requires the application of the land and water surface rent rate as follows:

“2. The land and water surface lease project before January 01, 2006 and its land rent is paid annually, and now the land rent rate is redefined as specified in Article 4, Article 5, Article 6 of this Decree and applies from 01 January 01, 2006.

In Clause 7, Article 2 of Decree No. 121/2010/ND-CP dated December 30, 2010 of the Government amending and supplementing a number of articles of Decree No. 142/2005/ND-CP dated November 14, 2005 of the Government on collection of land and water surface rent as follows:

"2. The land and water surface lease project before January 01, 2006 with the rent paid annually but the land lease rent rate has not been adjusted, the determination of land rent rate is made as follows:

a) Investment projects in which one of the following three documents: Certificate of investment (investment License), Decision on land lease, land lease Contract issued by competent state agencies (signed) has specified land and water surface rent rate and principles of rent rate adjustment shall be continued to implement the principle of adjustment of the rent rate stated in the investment License, Decision on land lease and land lease Contract.

b) Investment projects not specified at Point a, Clause 2 of this Article shall be adjusted their rent rate as provided for in Article 5a, Article 5, Article 6 of this Decree. "

- In Article 4 of Decision No. 2093/QD-TTg dated November 23, 2011 on the reduction of land rent in 2011 and 2012 for some economic organizations specified as follows:

"Article 4. For cases where the economic organizations are operating in production sectors (excluding organizations operating in the area of trade and services) and have land lease Contract to competent state agencies in accordance with the provisions of law for the collection of land rent, if the contract specifies the land lease rent to be paid annually, the enterprises shall continue to perform the signed land lease Contract. "

- In Article 5 of Circular No. 94/2011/TT-BTC dated June 29, 2011 of the Ministry of Finance amending and supplementing Circular No. 120/2005/TT-BTC dated December 30, 2005 of the Ministry of Finance guiding the implementation of Decree No. 142/2005/ND-CP dated November 14, 2005 of the Government on collection of land and water surface rent specified as follows:

"1a. The land and water surface lease project before January 01, 2006 with the rent paid annually but the land lease rent rate has not been adjusted as specified in clause 2, Article 9 of Decree No. 142/2005/NĐ-CP, the determination of land rent rate is made as follows:

1.1. Investment projects with decision on land lease and land handover for use prior to January 01, 2006 with land rent paid annually shall be continued to implement the principles of land rent rate adjustment specified in the investment License, decision on land lease of the competent state agencies issued to the investors or land lease Contract signed between the competent state agencies with the lessee as follows:

Investment projects in which one of the following three documents: Certificate of investment (investment License), Decision on land lease, land lease Contract issued by competent state agencies (signed) under the provisions of Law on foreign Investment, domestic Investment Law and relevant laws specifying land and water surface rent rate and the principles of lease rent rate adjustment in accordance with the regulations on land and water surface rent rate of the Ministry of Finance (Decision No. 210A-TC/VP dated April 1, 1990, Decision No. 1417TC/TCDN dated December 30, 1994, Decision No. 179/1998/QD-BTC dated February 24, 1998, decision 189/2000/QD-BTC dated November 24, 2000, Decision No. 1357TC/QD-TCT dated December 30, 1995) shall be:

a. Be continued to implement land and water surface rent rate specified in the Certificate of investment (investment License); Decision on land lease or land lease Contract if less than a stable period of 05 years. Upon expiration of 05 year period, the adjustment of rent rate on the principle of adjustment of the rent rate stated in the Certificate of investment (investment License); Decision on land lease or land lease Contract.

b. The order and procedures for the adjustment of land and water surface rent shall comply with the provisions of Clause 2, Article 17 of Decree No. 142/2005/ND-CP and the guidance at Point 2, Section I, Part D of Circular No. 120 /2005/TT-BTC.

1.2. Other cases not subject to the conditions specified at Point 1.1 above, including: projects whose land and water surface rent are being paid annually but in Certificate of investment (investment License); Decision on land lease or land lease Contract, there is no regulation on rent rate and principles of adjustment of land rent. If in a stable period, the land rent shall not be adjusted. Upon the expiration of stable period, the adjustment of land and water surface shall be made under provisions of Article 5 of Decree No.142/2005/ND-CP land rent rate as provided for in Article 5a of Decree No. 142/2005/ND-CP (supplemented by provisions in Clause 3, Article 2 of Decree No. 121/2010/ND-CP) and the guidance in Article 1, Article 4 of this Circular.

1b. In case the adjustment is made under provisions of Clause 2, Article 9 of Decree No. 142/2005/ND-CP, the rent rate adjusted shall be implemented until the end of the stable period. After that adjustment shall be made under the provisions of Decree No. 121/2010/ND-CP and the guidance in this Circular. "

Based on provisions above mentioned, in case the Project whose land and water surface is leased by the State prior to January 01, 2006 with payment of land and water surface rent made annually, the adjustment of land rent rate from January 01, 2006 under the provisions of Decree No. 142/2005/ND-CP, the stable period is 5 years from January 01, 2006 to December 31, 2010. From January 01, 2011, the adjustment of land rent rate shall be made for the next cycle as prescribed in Decree No. 142/2005/ND-CP above mentioned and rent rate as specified in Decree No. 69 / 2009/ND-CP dated August 13, 2009.

In case the Project whose land is leased prior to January 01, 2006 with payment of land and water surface rent made annually but the adjustment of land rent rate has not been made as prescribed in Clause 2, Article 9 of Decree No. 142/2005/ND-CP but in one of three type of papers ( Certificate of investment, Decision on land lease and land lease Contract) with regulation on rent rate and principles of adjustment shall be continued to comply with the principles of adjustment of rent rate specified in one of the three above-mentioned papers.

In case the land lease Project prior to January 01, 2006 with the payment of land rent made annually but in the Decision on land lease and land lease Contract specifying the land rent to be paid annually is a fixed amount but not specifying land rent rate (calculated by the percentage of land price for the purpose of leased land use prescribed by the provincial-level People s Committees) and the principles of adjustment of land rent rate shall not comply with provisions at Point a, Clause 7, Article 2 of Decree No. 121/2010/ND-CP. Therefore the adjustment of rent rate must be made as prescribed at Point b, Clause 7, Article 2 of Decree No. 121/2010/ND-CP mentioned above.

Above is the answer from the General Department of Taxation to the Department of Taxation of Nam Dinh province./.