Decision No 23/2015/QD-TTg dated June 26, 2015 of the Prime Minister providing the mechanism whereby the State uses land to make payment to investors implementing construction investment projects in the form of build-transfer

DECISION

Providing the mechanism whereby the State uses land to make payment to investors implementing construction investment projects in the form of build-transfer[1]

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the December 16, 2002 Law on the State Budget;

Pursuant to the June 3, 2008 Law on Management and Use of State Property;

Pursuant to the June 3, 2008 Law on Promulgation of Legal Documents;

Pursuant to the November 29, 2013 Land Law;

Pursuant to the November 26, 2014 Law on Investment;

Pursuant to the Government’s Decree No. 15/2015/ND-CP of February 14, 2015, on investment in the form of public-private partnership;

At the proposal of the Minister of Finance,

The Prime Minister promulgates the Decision providing the mechanism whereby the State uses land to make payment to investors implementing construction investment projects in the form of build-transfer.

Chapter I

GENERAL PROVISIONS

Article 1.Scope of regulation

This Decision provides the mechanism whereby the State uses land to make payment to investors implementing construction investment projects in the form of build-transfer contract (below referred to as BT projects).

Article 2.Subjects of application

1. State agencies competent to conclude build-transfer contracts (below referred to as BT contracts).

2. Investors performing BT contracts (below referred to as investors).

3. Other agencies, organizations or individuals involved in the implementation of BT projects.

Article 3.Principles of using land to make payment for BT projects

1. The value of BT projects shall be determined in accordance with the law on construction investment.

2.  The value of land areas used to make payment to investors shall be determined in accordance with the land law.

3. The use of land to make payment for a BT project shall adhere to the principle of parity and difference offsetting between the value of the BT project and the value of the land area used to make payment.

4. The time of making payment for a BT project with land is the time the People’s Committee of the province or centrally run city (below referred to as provincial-level People’s Committee) issues a decision to allocate or lease land to the investor. Such decision shall be issued upon or after completion of the BT project as prescribed in Clause 3, Article 43 of the Government’s Decree No. 15/2015/ND-CP of February 14, 2015, on investment in the form of public-private partnership.

Chapter II

SPECIFIC PROVISIONS

Article 4.Land areas used to make payment to investors

1. Investors may be allocated land with collection of land use levy or leased land with one-off rental payment for the entire lease period.

2. Land areas used to make payment to investors include:

a/ Land areas for economic development already determined in land use master plans or plans approved by competent state agencies in accordance with the land law;

b/ Old premises, for BT projects to built facilities at new locations.

3. Competent state agencies shall select land areas used to make payment to investors as prescribed at Point a, Clause 2 of this Article, provided the following two conditions are fully met:

a/ Being conformable with approved land use master plans or plans;

b/ The value of a land area used to make payment is equivalent to the value of the approved BT project concerned.

Article 5.Use of land to make payment for BT projects

1. For uncleared land

Based on the location and area of land to be used to make payment to investors by provincial-level People’s Committees and at the proposal of state agencies competent to conclude BT contracts and of investors, provincial-level People’s Committees shall make written commitments with investors on use of land to make payment for BT projects; and concurrently request local functional agencies and investors to:

a/ Formulate detailed plans of a 1:500 scale and submit them to competent state agencies for approval;

b/ Formulate compensation and ground clearance plans and submit them to competent state agencies for approval;

c/ Pay in advance funds for compensation and ground clearance according to regulations;

d/ Carry out the compensation and ground clearance according to approved plans.

Based on the results of compensation and ground clearance, provincial-level People’s Committees shall issue decisions to allocate or lease land to investors. The valuation of land areas used to make payment and the payment for BT contracts must comply with Clause 2 of this Article.

2. For cleared land

a/ Provincial-level People’s Committees shall issue decisions to allocate or lease land to investors to serve the valuation of the land areas used to make payment. A land area used to make payment shall be valuated as follows:

- In case of allocation of land with land use levy, the value of the land area is the land use levy determined at the time of obtaining the decision on land allocation according to regulations on collection of land use levy;

- In case of lease of land with one-off rental payment for the entire lease period, the value of the land area is the land rental fully paid for the entire lease period determined at the time of obtaining the decision on land lease according to regulations on collection of land rental or water surface rental.

b/ The use of land areas to make payment for BT projects is as follows:

The payment shall be made on the principle of parity. The value of BT projects shall be determined in accordance with the law on construction investment; the value of land areas used to make payment shall be determined in accordance with the land law;

- In case the value of a land area used to make payment for a BT project is higher than the value of such project, the investor shall pay the difference in cash into the state budget according to regulations on collection of land use levy, land rental and water surface rental;

- In case the value of a land area used to make payment for a BT project is lower than the value of such project, at the time of making final settlement for the project as prescribed by the law on construction investment, the State shall pay a sum of money or use another land area to pay for the difference, provided the condition prescribed at Point a, Clause 3, Article 4 of this Decision is met;

After the payment is made according to regulations, the value of a BT project and of the land area used to make payment for such project, which are determined by competent state agencies, must not be changed, except cases when competent state agencies issue a document permitting:

- The adjustment of the project’s scale or technical design or the loan interest amount included in the project’s financial plan, resulting in a change in the project’s value;

- The adjustment of the land use master plan, resulting in a change in the area, use purposes or use duration of the land area used for payment;

The difference resulting from such adjustment shall be offset when the BT project is completed and finalized in accordance with the law on construction investment.

c/ The loan interest amount included in a BT project’s financial plan shall no longer exist after the provincial-level People’s Committee issues a decision on land allocation or land lease;

d/ The provincial-level People’s Committee shall grant a certificate of land use rights to the investor in accordance with the land law for the land area used to make payment equivalent to the value of the completed BT project under the progress determined by the competent state agency in accordance with the law on construction investment and the difference (if any) already paid by the investor under Point b of this Clause.

Article 6.Use of old premises to make payment for BT projects to build facilities at new locations

The use of old premises to make payment for BT projects to build facilities at new locations must comply with the law on management and use of state property, specifically as follows:

1. An administrative agency, a non-business unit or an enterprise in which  the State holds 100% of charter capital (below referred to as state enterprise), that is assigned to manage old premises, shall make a written report on the need and necessity to implement a BT project to build facilities at the new location and use of the old premises to make payment for such project; and send the report to:

a/ Its managing agency (which may be ministry, ministerial-level agency, government-attached agency or another central agency), for administrative agencies or non-business agencies managed by central agencies; or the direct representative of the owner at the enterprise in which the State holds 100% of charter capital (below referred to as the owner’s direct representative), for state enterprises managed by central agencies;

b/ Its managing department or sector or its superior agency under the provincial-level People’s Committee, for administrative agencies or non-business units managed by local agencies; or the owner’s direct representative, for state enterprises managed by local agencies.

2. Based on the written report of the administrative agency, non-business unit or state enterprise prescribed in Clause 1 of this Article, the managing agency or the owner’s direct representative shall consider the plan on use of old premises to make payment for a BT project to build facilities at the new location and propose in writing:

a/ The Ministry of Finance (for administrative agencies, non-business units and state enterprises managed by central agencies) to consult in writing the provincial-level People’s Committee (where exist the old premises) about the land use and construction planning;

b/ The provincial-level Department of Finance (of the locality where exist the old premises, for administrative agencies, non-business units and state enterprises managed by local agencies) to coordinate with related departments and sectors in considering and reporting to the provincial-level People’s Committee on the BT project as well as land use and construction planning at the location of the old premises.

3. Based on the provincial-level People’s Committee’s opinions on land use and construction planning, the Ministry of Finance shall consider and give its written opinions on the proposal of the managing agency (for administrative agencies and non-business units managed by central agencies) or the owner’s direct representative (for state enterprises managed by central agencies). The provincial-level People’s Committee shall consider and give its written opinions on the proposal of the managing agency (for administrative agencies and non-business units managed by local agencies) or the owner’s direct representative (for state enterprises managed by local agencies).

4. The selection of investors to implement BT projects to build facilities at the new locations and the use of old premises to make payment for such projects must comply with the bidding law.

5. The time when provincial-level People’s Committees issue decisions on allocation or lease of land at the old locations to investors must comply with Clause 4, Article 3 of this Decision.

6. The value of the old premises (including the value of land use rights and the value of land-attached assets) used to make payment for BT projects shall be determined as follows:

a/ The land use levy or land rental fully paid for the entire lease period must comply with Point a, Clause 2, Article 5 of this Decision;

b/ The value of land-attached assets must be consistent with its re-valuated residual actual value, which must not be lower than the construction price applicable to works of the same type, issued by the provincial-level People’s Committee, multiplied by (x) the residual quality percentage at the time of obtaining the decision on allocation or lease of land at the old location.

7. The time of making payment to investors is the time provincial-level People’s Committees issue decisions on allocation or lease of land at the old locations to investors.

8. The use of land areas to make payment for BT projects is as follows:

The payment shall be made on the principle of parity. The value of a BT project shall be determined in accordance with the law on construction investment; the value of a land area used to make payment shall be determined in accordance with the land law.

a/ In case the value of a land area used for payment is higher than the value of a BT project, the investor shall remit the difference in cash into the state budget under regulations on collection of land use levy, land rental and water surface rental;

b/ In case the value of a land area used for payment is lower than the value of a BT project, the State shall pay the difference to the investor in cash or with another land area provided the condition prescribed at Point a, Clause 3, Article 4 of this Decision is met at the time of finalization of the project in accordance with the law on construction investment.

9. The loan interest amount included in a BT project’s financial plan shall no longer exist after the provincial-level People’s Committee issues a decision on land allocation or land lease at the old location.

10. The provincial-level People’s Committee shall grant a certificate of land use rights to the investor in accordance with the land law for the land area used to make payment equivalent to the value of the completed BT project under the progress determined by the competent state agency in accordance with the law on construction investment and the difference (if any) already paid by the investor under Point a, Clause 8 of this Article.

Chapter III

ORGANIZATION OF IMPLEMENTATION

Article 7.Transitional handling

BT contracts concluded in accordance with law before the effective date of this Decision, under which investors shall receive payment in the form of land allocation for implementation of other projects, shall be further implemented according to relevant laws without having to be modified according to this Decision.

Article 8.Effect

1. This Decision takes effect on August 15, 2015.

2. The Ministry of Finance shall guide the order and procedures for using land to make payment to investors according to regulations.

3. Ministers, heads of ministerial-level agencies, heads of government-attached agencies and other central agencies, chairpersons of provincial-level People’s Committees, and heads of related agencies and units shall implement this Decision.-

Prime Minister
NGUYEN TAN DUNG