Guidance on Determining Land Rent in the Case of Land Users Proposing Adjustments to Detailed Construction Planning
Regulations on the Deadline for One-Time Land Rent Payment for the Entire Lease Period due to Planning Adjustment
According to Point b Clause 3 Article 18 of Decree 126/2020/ND-CP, the regulations are as follows:
Deadline for tax payment on revenues belonging to the state budget from land, water resource exploitation rights, mineral resources, marine area usage fees, registration fees, and license fees
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3. Land rent, water surface rent
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b) For the case of one-time land rent or water surface rent for the entire lease period:
b.1) First-time land rent or water surface rent payment deadline:
No later than 30 days from the date of issuance of the land rent or water surface rent payment notice, the lessee must pay 50% of the land rent or water surface rent according to the notice;
No later than 90 days from the date of issuance of the land rent or water surface rent payment notice, the lessee must pay the remaining 50% of the land rent or water surface rent according to the notice.
b.2) The deadline for land rent or water surface rent payment for the adjustment declaration is no later than 30 days from the date of issuance of the tax payment notice.
The General Department of Taxation issued Official Dispatch 2287/TCT-CS in 2022 with the following guidance:
For cases of detailed construction planning adjustments that increase the area for one-time land rent payment for the entire lease period (the area before adjustment is 1,000 m2, having fulfilled financial obligations, the area after adjustment is 2,500 m2), and have additional land rent arising due to planning adjustments, the deadline for one-time land rent payment arising due to planning adjustments shall apply according to the adjustment declaration deadline stipulated in Point b.2 Clause 3 Article 18 of Decree 126/2020/ND-CP mentioned above.
Guidelines for determining land rent in cases where land users request detailed construction planning adjustments. (Image from the Internet)
How is the offsetting of land levy and land rent arising from planning adjustment of a project guided?
Based on the regulations in Clause 5 Article 14 of Decree 45/2014/ND-CP (supplemented by Clause 7 Article 2 of Decree 123/2017/ND-CP), the regulations are as follows:
Procedure for determining and collecting land levy
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5. In cases where the basis for calculating land levy changes, the tax authority must reassess the land levy to be paid and notify the obligated person to comply.
If the land user has completed the financial obligations for land levy but requests detailed construction planning adjustments resulting in additional financial obligations, if any, they must additionally pay the land levy to the state budget.
If the land user has not completed the financial obligations for land levy and requests detailed planning adjustments resulting in additional financial obligations, if any, they must:
- Pay the full amount of land levy determined according to the detailed planning before adjustment plus late payment interest according to the law;
- Pay additional land levy equal to the difference between the land levy determined before and after the adjustment at the same time authorized by the competent state authority to allow planning adjustments (if any).
In addition, the General Department of Taxation bases on the following regulations:
- According to Clause 6 Article 12 of Decree 46/2014/ND-CP (amended by Clause 3 Article 3 of Decree 123/2017/ND-CP) regulating land rent collection when there are land use planning adjustments;
- Based on Clause 1 Article 10 of Circular 76/2014/TT-BTC;
- Based on Clause 5, Clause 7 Article 5 of Circular 77/2014/TT-BTC.
Official Dispatch 2287/TCT-CS in 2022, the General Department of Taxation guides the offsetting of land levy and land rent arising from planning adjustment of a project as follows:
Based on the above regulations, in principle, the current law already provides for cases where the land lessee has completed the financial obligations for land rent but due to state management requirements must adjust the detailed construction planning, reducing the land use coefficient (construction density, building height) leading to a reduction in land rent for cases where the state leases land with one-time land rent payment for the entire lease period, then the organization is refunded the difference between the land rent determined before and after the detailed planning adjustment at the same time authorized by the competent state authority to approve the planning adjustment.
Upon review, the current law does not have provisions for refunding or offsetting land levy or land rent in cases where the land user requests detailed construction planning adjustments that reduce the paid land levy or land rent (determined according to the pre-adjustment planning). Therefore, the proposal of the Da Nang Tax Department in Official Dispatch 918/CTDAN-HKDCN dated February 25, 2022, has no basis for implementation.
See detailed content of Official Dispatch 2287/TCT-CS in 2022: Here.
How to determine the area liable to land rent when there is no land lease decision yet?
According to the provisions of Clause 2 Article 4 of Circular 77/2014/TT-BTC on determining the area liable to land rent as follows:
Area liable to land rent
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2. For cases without a land lease decision or land lease contract but using land for purposes subject to land lease according to the Land Law, the area liable to land rent is the actual area being used.
Thus, according to the regulations, for cases without a land lease decision or land lease contract but using land for purposes subject to land lease according to the Land Law, the area liable to land rent is the actual area being used.
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