CIRCULAR

GUIDING THE PAYMENT OF LAND RENT AND CONTRIBUTION TO JOINT VENTURE CAPITAL WITH THE VALUE OF LAND USE RIGHT BY ORGANIZATIONS IN THE COUNTRY AS PRESCRIBED IN DECREE No.85-CP OF DECEMBER 17, 1996 OF THE GOVERNMENT

In execution of Decree No.85-CP of December 17, 1996 of the Government detailing the implementation of the Ordinance on the rights and obligations of the organizations in the country which are assigned or leased land by the State, the Ministry of Finance hereby guides the payment of land rent and the contribution to the joint venture capital with the value of the land use right by organizations in the country, the handling of cases in which payment of land use is made with money not issued from the State budget before September 9, 1996 (date on which the Ordinance on amendment and supplement to the aforesaid Ordinance takes effect):

Part I

PAYMENT OF LAND RENT

I. SUBJECT TO LAND RENT PAYMENT:

1. Subjects which have to pay land rent:

1.1. Economic organizations in the country shall have to register and pay land rent:

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1.2. A number of other cases where registration and payment of land rent are mandatory.

a/ Enterprises engaged in agricultural production, forestry, aquaculture and salt making are allowed to use land to set up headquarters (offices), repair shops, processing shops, or to conduct business and services.

b/ The organizations which have been assigned land by the State do not have to pay land rent if the land is used for public utility purposes. However, if they use part of the land for production and business purposes, they must make declarations and register to pay rent on such area within the period the land is used for production and business purposes.

c/ State agencies, political and social organizations, people's armed forces units which are allocated land to build working offices or for defense and security purposes or build works in the branches and areas of economic, cultural, social, scientific, technical and diplomatic activities in which part of the assigned land is used for production and business purposes shall have to make declarations and register to pay the rent for this part of land.

d/ If a public utility works is assigned to the management of the enterprise for exploitation and use for production and business purposes, the enterprise shall have to pay the land rent for the area used for production and business purposes. Here are some concrete examples:

+ Regarding the ferries, sea ports, railway stations and bus stations, they shall have to pay only the rent of the land used for the building of the office of the organization, the waiting house, the ticket house, the parking lot, the catering area, the stands for the sale of commodities, souvenirs, storages ... directly used for production and business purposes (including the area assigned to the personnel on a contractual basis for the running of sales stands and shops...)

+ The airports shall not have to pay land rent for the runways, the flight safety areas (for civil airports) and for the whole of the area of the military airports managed by the Ministry of Defense.

+ The historical relics already recognized as such by the Government and the beauty landscapes shall have to pay the land rent for only the area used for service purposes such as the souvenir stands, the catering shops and other services.

+ The skate rolling and tennis courts, the gymnasiums for body building and aesthetic physical training directly managed by the administration of various levels in service of public welfare and without business purpose shall not have to pay land rent.

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In case the enterprise has been using the land without the land rent decision of the competent State agency, it shall have to temporarily pay the rent for the area already exploited (if it is not yet filled up to be returned to the State), the area under exploitation, the area occupied by workshops for production and business, yards and storage for materials, products, head office and constructions in service of exploitation.

An organization which is allowed to exploit minerals from the subsoil shall not have to pay land rent for the unused area on the ground.

f/ For a multi storeyed house used by many units, the land rent shall be calculated for each storey according to the coefficient defined in Decree No.61-CP of July 5, 1994 of the Government.

g/ If the house is intended as dwelling place for many households including apartment buildings within the compound of an organization, unless it lies in the planned population area of the State, the organization still have to pay land rent for the housing area.

In cases mentioned in Point 1.2 of this Section, the land using organization has to make a declaration itself to register for paying land rent. The tax agency shall together with the land administration agency check the declaration in necessary cases in order to ensure its conformity with reality.

2. Subjects not liable to land rent payment:

2.1. The economic organizations which are assigned land by the State and have to pay for the land use:

- Economic organizations which use land to build dwelling houses for sale to Vietnamese citizens or for rent;

- Economic organizations which use land for investment in infrastructure construction in order to assign or lease the right to use the land together with this infrastructure.

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- State agencies, political and social organizations, People's Army units using land to build working offices, for defense and security, or to build projects in the branches and domains of non - business activities in economy, culture, social welfare, science, technique and diplomacy outside production and business purposes.

- The enterprises and companies using land for public utility such as the construction of roads, bridges, culverts, pavements, water supply and drainage facilities, rivers, lakes, dykes, dams, schools, scientific research institutions, hospitals, markets, parks, flower beds, recreation places for children, public squares, stadiums, airports, sea ports and other public utility projects as prescribed by the Government;

- State enterprises, enterprises of political and social organizations, defense and security enterprises, stock enterprises, companies with limited liabilities, collective economic organizations using land for agricultural production, forestry, aquaculture and salt production.

2.3. The organizations using land which is originally under lawful family or individual use after the competent State agency has allowed the use of that land for the construction of office or workshop for production and business purposes.

3. If an organization in the country which uses land assigned by a competent State agency and which has to pay and has paid for the land use in conformity with the regime of payment to the State budget before January 1st, 1995, such a payment not originating from the State budget, now under Decree No.85-CP of December 17, 1996 of the Government if it is a land renter it has to pay land rent as from January 1st, 1997, and shall continue to pay as provided for by the Ordinance on house and land tax in force if it is assigned land to be paid for the use.

4. If the land organization is in the category of land users having to pay for the land rent, it has to make a declaration to register for payment of land rent with the local tax agency according to the form attached to this Circular (form No.1).

II. DETERMINATION OF LAND RENT AND ITS PAYMENT:

1. Determination of one-year land rent:

Land rent for one year
(Dong/year)

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Area of the land on rent
 (m²)

x

Unit price of one year 's rent
(Dong/m²/year)

in which:

- The area of rented land is the entire enclosure under the organization's management for use in production and business. This area is determined on the basis of the declaration for registration of the organization with reference to the existing area of land of the organization: the dossier on land assignment, the dossier of land assignment to the production or business establishment attached to the dossier on assignment of land for use, the dossier on land rent... The dossier shall be readjusted according to reality when it comes to officially determining the area.

- The unit price of land rent for 1 year shall be determined as follows:

Unit price of land rent for one year (Dong/m2/year)

=

Price of one square meter of land set by the People's Committee of provincial level under Decree No.87-CP of August 17, 1994 of the Government

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Coefficient for determining the land price applicable to each group of trades and businesses defined in Article 2 of the Regulation on Price Frame for Land Rent Applicable to the Organizations in the Country to Which the State Rents Land issued together with Decision No.1357 TC/QD/TCT of December 30,1995 of the Minister of Finance

The organization which is leased land by the State to build business infrastructure at the export processing zones and industrial parks shall have to pay land rent at the rate for material production lines, construction and transport services.

A land leasing organization, apart from the annual land rent to be paid at the above unit price, also has to pay compensation to the person whose land is recovered and leased to it according to State regulations.

In case the land for rent is allowed by the competent State agency to change the use purpose, the land price shall be determined at the price table having the same new use purpose as from the date of the change of the use purpose. However, the practical conditions of each plot of land shall be taken into consideration in order to determine an appropriate land price.

In case the plot is a large plot lying far from the road bed, the Tax Service shall report to the Tax Department so that the Tax Department might coordinate with the related branches to possibly divide it into many smaller plots to determine the price for each smaller plot or to determine an average price for the calculation of the price in conformity with the real price land in the locality.

In case the plot is used for business purpose in many branches and trades with different land rent, the land rent shall be determined on the basis of the use area for each branch or service. If the use area for each service or trade cannot be determined, the land rent for the whole plot shall be determined by the rent of the land used by the main business line. If such a business line cannot be determined, the overall land rent shall be the rent of the business line having the highest unit price of rent.

The rent on an area which the land assignee asks to return to the State shall be calculated up to the time of its return to the State. In case an organization has filed a written proposal to return the land to the State but the State has not acknowledged reception, the organization shall not have to pay land rent for this area within one month after the competent State agency receives the written proposal. The agency which directly collects the land rent has to check carefully each concrete case in order to avoid mistakes.

The land rent for the first and last years shall be determined as follows:

Land rent for the first or last year (Dong)

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Land rent for one year ( Dong )

x

Number of months of actual rent

12 months

2. The time to calculate the land rent shall be determined as provided for in Article 4 of the Regulation on the Price Frame for Land Rent Applicable to Organizations in the Country which are Leased Land by the State issued together with Decision No.1357-TC/QD/TCT of December 30, 1995 of the Minister of Finance. For cases which are temporarily exempted from land rent as instructed in Circular No.856-LB/DC-TC of the General Land Administration and the Ministry of Finance and which are now liable for land rent payment, the time for land rent payment shall be calculated from January 1, 1997.

3. Payment of land rent:

Land rent shall be paid annually and accounted for in the annual production and business cost of the land renting organization. In case of one-time payment for many years, the payment shall be staggered over these years and accounted in the production and business cost corresponding to these years.

In case the organization is rented land by the State prior to January 1st, 1996 and has not paid the rent, it shall have to make back payment.

If payment has been made for the rent in 1997 at the time of the payment, the payment already made shall be deducted from the rent as stipulated in this Circular.

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The land rent shall be paid into the State budget at the State Treasury on the current budget contents. The Treasury shall make the procedure of collecting land rent according to current regulations.

The land renting organization has the duty to pay the rent on time and fully into the State Treasury and submit itself to the guidance of the tax office directly managing the collection of land rent.

4. Land rent exemption and reduction:

4.1. If the land renting organization is in the process or carrying out survey for capital construction under the plan already approved by the competent level, it shall have to pay only 50% of the annual land rent and this shall be accounted for in the expenditures on capital construction.

4.2. The following reduction shall apply to the land rent payment at one time for many years:

- Reduction by 10% for a periodical payment over five years.

- Reduction by 10% for a periodical payment over the first five years and an additional 2% for each year from the 6th year according to the partially progressional method, but the maximum reduction shall not exceed 30% of the rent to be paid under the land rent contract.

For instance: Enterprise B is leased a plot of land for a rent of 100 million dong per year. The enterprise is paying land rent for the first 8 years right in the first year. The reduction shall be effected as follows:

- Reduction for the first five years:

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- Reduction for the 6th year:

100 million Dong x 1 year x 12% = 12 million Dong

- Reduction for the 7th year:

100 million Dong x 1 year x 14% = 14 million Dong

- Reduction for the 8th year:

100 million Dong x 1 year x 16% = 16 million Dong

Total reduction = 92 million Dong

Total payment at the beginning for 8 years:

(100 million Dong/year x 8 years) - 92 million Dong = 708 million Dong

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The supervision of the land rent reduction stipulated in this Point shall be decided by the Head of the General Tax Department after checking the annual statement of accounts of the organization.

Part II

ON THE CONTRIBUTION TO THE JOINT VENTURE CAPITAL WITH THE VALUE OF LAND USE RIGHT OF THE ORGANIZATIONS IN THE COUNTRY WHICH ARE ASSIGNED OR LEASED LAND BY THE STATE

1. For the economic organizations which are assigned land by the State for use in agriculture, forestry, aquaculture and salt production:

1.1. In case of joint venture with organizations and individuals in the country:

a/ If the joint venture still uses land for agriculture, forestry, aquaculture and salt production, the value of the land use right of the land contributor shall be agreed upon by the parties to the joint venture, but the land price used to determine the value of the land use right must not be lower than the land price prescribed by the People's Committee of the province according to the land price frame issued by the Government.

The value of the land use right used to contribute capital to the joint venture is the budget capital allocated by the State to the party contributing land to the joint venture capital.

Each year, the party which contributes land to the joint venture shall have to pay tax on agricultural land use as prescribed by law. It shall not have to pay land rent and to pay for the use of capital.

b/ In case the joint venture changes the land use purpose, the party contributing land to the joint venture capital shall have to change to the form of renting land from the State. The value of the land use right contributed to the capital of the joint venture shall be determined by the land rent paid to the State budget for the new use purpose corresponding to the term of the joint venture. It shall be calculated as follows:

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Area used to contribute to the joint venture
capital (m²)

x

Price unit of land rent for one year for the new use purpose
(Dong/m²/year)

x

Term of the joint venture
 (year)

1.2. Any joint venture with foreign organizations or individuals shall have to get the permission of the competent State agency stipulated in Decree No.12-CP of February 18, 1997 of the Government. The party having land to contribute to the joint venture capital shall have to change to the form of renting land from the State. The value of the land use right as contribution to the joint venture capital shall be determined by the rent price of the land, the water surface or sea area applicable to the forms of foreign investment in Vietnam within the period when the land use right is allowed to be contributed to the joint venture capital.

2. For the organizations which are assigned land by the State and which have to pay for the land use right:

2.1. For a joint venture with organizations and individuals in the country: The value of the land use right contributed to the joint venture capital shall be agreed upon by the parties but must not be lower than the land use payment to the State budget at the time of the contribution to the joint venture capital.

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2.2. In case of joint venture with foreign organizations or individuals: the value of the land use right as contribution to the joint venture capital shall also be agreed upon by the parties but in any case shall not be lower than the value of the land use right within the term of the joint venture based on the rate of land rent to foreign investors.

3. For the organizations to which the State leases land:

3.1. For the joint ventures with organizations and individuals in the country: The value of land use right as contribution to the joint venture capital shall be agreed upon by the parties but must not be lower than the value of land rent use right by multiplying (x) the land area contributed to the joint venture capital by the unit price of the land rent applicable to organizations in the country multiplied (x) by the joint venture term.

3.2. In case of joint venture with foreign organizations and individuals: the value of the land use right as contribution to the joint venture capital shall be agreed upon by the parties but must not be lower than the land rent rate issued by the State applicable to the forms of foreign investment in Vietnam within the term of the joint venture.

3.3. In case the organization has paid the rent in advance for the whole term of the rent after the time limit for the contribution of capital to the joint venture, the down payment shall be deducted from the land rent to be paid. In case the party which contributes land to the joint venture capital and which has paid for the land use right with money not originating from the State budget prior to September 9, 1996, then in term of the joint venture the party contributing land as capital to the joint venture shall be entitled to deduct the land use payment from the annual rent specified in Part III of this Circular.

The land contributing party specified at Clause b Point 1.1 and Point 1.2 Section 1, Point 2.2 Section 2, and Section 3 of Part II shall have to pay the land rent to the State as stipulated in Section 4 of Part II of this Circular.

4. Regulation for organizations and individuals inside and outside the country on the return of land rent to the organizations which are allowed to use the value of land to contribute to the capital of joint ventures.

4.1. Basing itself on the decision of the competent State agency allowing the use of the value of land use right to contribute to the joint venture capital and at the proposal of the parties to the joint venture, the Debt Acknowledgment Council headed by the Finance Service of the province or city directly under the Central Government in coordination with the Land Administration Service, the Tax Service and the Department for Management of State Capital and Property of the enterprise (for State enterprises) and the parent service shall check and examine in order to determine the total of the land rent to be contributed to the joint venture capital throughout the term of the joint venture. The party which contributes the value of the land use right to the joint venture capital shall have to sign the contract of debt acknowledgement to the Financial Service and must draw up the plan to return the rent in subsequent years. An organization shall not have to pay this money for the part it contributes to the joint venture capital with the land use right.

4.2. The time of returning the land rent takes effect right when the joint venture makes profit or when the profit under the project is ratified by the competent State agency, but it shall not exceed five years from the time the decision to rent land is taken.

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The land rent to be returned in a year (Dong or USD)

=

Value of land use right contributed to the capital of the joint venture (Dong or USD)

Time when the joint venture enterprise makes profit under the approved project (year)

4.4. The place and period of submitting the land rent shall be similar to the payment of land rent specified in Part I of this Circular.

Part III

REGULATIONS FOR HANDLING OF THE CASES WHEN AN ORGANIZATION WHICH HAS PAID FOR LAND USE WITH MONEY NOT DERIVED FROM STATE BUDGET AND WHICH IS NOW SUBJECT TO LAND RENT PAYMENT

1. The land which is considered having paid land use must be a land used by an organization which has paid fully and according to the regime and having all the necessary valid papers to demonstrate that it belongs to one of the following cases:

- Assigned land it has paid compensations for damage under Decision No.186-HDBT of May 31, 1990 of the Council of Ministers (now the Government) on compensations for damage on agricultural land and forest land when changed to other purposes;

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- It has paid for the land use to the State budget as prescribed in Circular No.60-TC/TCT of July 16, 1993 of the Ministry of Finance when it is assigned land in replacement of payment for the value of the project;

- It buys houses owned by the State or houses of Dwelling House Business Companies of the State as provided for in Decree No.61-CP of July 5, 1994 of the Government on buying and selling or conducting business in dwelling houses;

- It pays for land use as prescribed in Decree No.89-CP of August 17, 1994 of the Government on the collection of payment for land use and land administration fee.

2. An economic organization in the country which is assigned land by the State and which is now a subject renting land defined in Item 3, Article 1 of the Ordinance Amending and Supplementing a Number of Articles of the Ordinance of August 27, 1996 on the Rights and Obligations of the Organizations in the Country which are Assigned or Rented Land by the State, shall have to pay the land rent to the State Budget according to the following regulations:

a/ If it has not yet paid for the land use or if it has paid but with money originating from the State budget, it shall have to pay the land rent to the State as from January 1st, 1996 according to the guidance in this Circular.

b/ In case the organization has paid fully for land use and according to the regime with money not originating from the State budget, and now is a land renting subject (including the organizations which are assigned land by the State and which have to pay for land use and now use the value of the land use right to contribute to the capital of a joint venture with foreign organizations and individuals), the payment for land use shall be deducted from the land use payment according to the following cases:

- In case the land use payment is greater than or is equal to the land rent to be paid, the organization shall not have to pay the land rent throughout the term of the rent;

- In case the land use payment is smaller than the land rent to be paid within the rent term, the land use payment already made shall be amortized each year until it is used up, then the organization shall continue to pay the land rent as prescribed by law.

3. The organization which is using residential land originating from family or individual land which has been lawfully used, after getting permission from the competent State agency to use this land to build offices or workshops for production and business, they shall not have to change to land rent and still has to continue paying land tax as prescribed by the Ordinance on Land and House Tax currently in force.

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Part IV

HANDLING OF VIOLATIONS, COMMENDATIONS AND COMPLAINTS

1. An economic organization in the country which is assigned land by the State prior to September 9, 1996 and which makes false declarations on the sum of money already for land use paid shall be sanctioned as prescribed in the Ordinance on Handling of Administrative Violations.

2. An organization which is allowed by the competent State agency to use the value of land use right to contribute to the capital of a joint venture with an organization or individual inside and outside the country and which deliberately makes a wrong dealing about the value of the capital contributed to the joint venture and which does not comply exactly with the regime of the State, shall have to pay compensation to the State.

An organization which is allowed to contribute to the capital of the joint venture with the value of the land use right but which does not sign a debt acknowledgement contract for the value of the land use right as contribution to the capital of the joint venture, then the Finance Service in cooperation with the competent agencies shall base themselves on the related documents to set the time and sum which this organization shall have to refund each year and shall inform this organization thereof for implementation.

3. An organization which is using land of a subject which has to register for paying land rent but which does not carry out the declaration for registration properly in order to pay the land rent as instructed in this Circular, the Head of the Tax Service shall base himself on the investigative documents and the dossier on land use of the organization supplied by the People's Committee of the commune, ward, township or the land administration and has the right to decide the contents stipulated in Part II, Form 1 attached to this Circular, report to the Finance Service and the Tax Department and inform the organization thereof to pay the land rent.

If the organization does not pay the land rent or fine on time, apart from paying fully the rent and the fine as prescribed, it shall have to pay a fine representing 0.2% of the arrears per day.

If the land renting organization deliberately procrastinates in paying the land rent and the fine, the tax agency is entitled to ask the bank to make deduction from the bank deposits of this organization to pay the land rent and fine (if any) into the State treasury.

4. An organization or an individual that misuses its or his/her position and powers to appropriate or to embezzle or otherwise cause losses to the land rent shall have to pay compensations to the State for all the sum it/he/she has appropriated, embezzled or otherwise diverted and shall be disciplined or be examined for penal liability as prescribed by law depending on the extent of its violation.

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6. The organization which is rented the land has the right to complain about issues related to the local Tax Department; pending a settlement, the complainant shall have to pay fully and on time the land rent and the fine (if any) which has been notified to it. The organization which is allowed to use the value of the land use right as contribution to the joint venture capital has the right to complain about questions related to the local Finance Service. In case it does not agree with the decision of the handling agency, it may complain to the immediate higher level of the agency which has issued the handling decision. The decision of the Minister of Finance is final.

The agency receiving the complaint shall have to settle it within 30 days from the date of reception of the complaint. Past this limit, if it cannot hold out any idea on the solution, the person competent to solve the complaint shall have to bear responsibility for any consequence of the delay in the settlement.

Part V

ORGANIZATION OF IMPLEMENTATION

1. The People's Committees of the provinces and cities directly under the Central Government are responsible for guiding the Finance Service, the Tax Department, the Department for the Management of State Capital and Properties at Enterprises, the People's Committees of the districts, towns and cities under the provinces, the organizations which are using land on the territory to carry out fully the guidances in this Circular.

2. The General Department for the Management of State capital and Properties at Enterprises has the responsibility to direct the Departments for the Management of State Capital and Properties at the Enterprises to coordinate with the Finance Service to urge, guide and inspect the State enterprises in the localities to observe the regulations in this Circular.

3. The General Department of Taxation shall have to guide the Tax Departments and Services in the localities:

3.1. Within 15 days after receipt of the declaration and registration of the land renting organization sent by the Land Administration Service, the Tax Bureau shall inspect and fully calculate the entries in the registration declaration and draw up a general table of registration for paying the land rent to report to the Tax Department so that the latter may integrate it into an overall report to the local Finance Service. In waiting for the Land Administration Service to send this declaration, the Tax Bureau shall have to guide the organization to make the declaration of registration to send to the Tax Bureau.

3.2. For the organizations which have been using the land on the territory before January 1, 1995, the Tax Bureau shall have to check and verify the data in the registration declaration in order to determine the following subjects: those which rent land, those which are assigned land without having to pay for land use, those which are assigned land but have to pay for land use, so as to organize the collection of land rent and land tax annually; determine the land use payment already made as amortizement to the land rent for the organizations which rent land, make back collection of land use payment if it is a subject which is assigned land and has to pay for land use but has not paid fully according to the prescribed regime; handle the cases which are allowed to use the value of land use right as contribution to the joint venture capital and other related issues.

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Within 30 days after receiving the report of the Tax Department, the Land Administration Service and the Finance Service have to join the Tax Department in determining the different subjects of land use as directed above. Past this time limit, if they don't have any suggestion, this shall be construed as they have agreed with the results of the determination of the Tax Department.

Basing itself on the above result of the determination, the Tax Department shall temporarily direct the collection of land use payment annually and shall have to readjust the rate after a decision on land rent is issued by the competent State agency or when it is found out that the declaration does not conform with the reality of the land use.

For all the cases of land rent after January 1st, 1995, the collection of land rent shall comply with the decisions of the competent State agency.

3.3. The collection of land rent of the organizations that have to pay the rent and the tax exemption or relief of the land rent shall comply with the stipulations of this Circular.

4. The Finance Service of the provinces and cities directly under the Central Government shall have:

- To assume the main responsibility and coordinate with the related services to check and examine the agreement on the value of land use right for contribution to the joint venture capital of the organizations which are assigned or rented land by the State, on which basis to determine the value of the land use right contributed to the joint venture capital; to act as President of the Council of Debt Assignment and Acknowledgement, or as representative of the Council to sign the Contract on debt assignment and acknowledgement for the land rent with the organization which uses the value of the land use right to contribute to the joint venture capital;

- Basing itself on the report of the local Tax Department mentioned in Points 3.2, Section 3, Part V it shall make suggestion so that the Tax Department may organize the collection of the land rent; coordinate with the related services to submit to the People's Committee of the same level to ratify which organizations that are rented land or assigned land and which have to pay for the land use as basis for the tax agency to collect the land rent and land tax or the payment for land use.

5. The People's Committees of the wards, communes and townships shall have to provide for the Tax Bureaus information on the use of land by the organizations, including private enterprises in the locality.

6. The land in use which has paid land rent according to this Circular shall not have to pay land tax.

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All earlier instructions which are contrary to this Circular are now annulled.

In the process of implementation, any question that may arise should be reported to the Ministry of Finance for study and settlement.

THE MINISTER OF FINANCE




Nguyen Sinh Hung