Thông tư 48/2012/TT-BTC hướng dẫn việc xác định giá khởi điểm và chế độ tài chính trong hoạt động đấu giá quyền sử dụng đất để giao đất có thu tiền sử dụng đất hoặc cho thuê đất do Bộ Tài chính ban hành

CIRCULAR

ON GUIDING THE DETERMINATION OF THE RESERVE PRICES AND FINANCIAL REGULATIONS IN LAND USE RIGHT AUCTIONS FOR ALLOCATION OF LAND SUBJECT TO LAND LEVIES OR LAND LEASE

Pursuant to the Government’s Decree No. 17/2010/N-CP of March 04, 2010 on property auction;

Pursuant to the Government's Decree No. 120/2010/ND-CP of December 30, 2010 amending, supplementing a number of articles of the Government's Decree No. 198/2004/ND-CP of December 03, 2004 on land levy collection;

Pursuant to the Government's Decree No. 121/2010/ND-CP of December 30, 2010 amending, supplementing a number of articles of the Government's Decree No. 142/2005/ND-CP of November 14, 2005 on the collection of land rents, water surface rents;

Pursuant to the Government's Decree No. 57/2002/ND-CP of June 03, 2002 detailing the implementation of the Ordinance on Charges and fees; the Government's Decree No. 24/2006/ND-CP of March 06, 2006 amending, supplementing a number of articles of the Government's Decree No. 57/2002/ND-CP of June 03, 2002;

Pursuant to the Government's Decree No. 118/2008/ND-CP of November 27, 2008 providing for functions, tasks, powers and the organizational structure of the Ministry of Finance;

Pursuant to the Prime Minister’s Decision No. 216/2005/QD-TTg of August 31, 2005 on the promulgation of the Regulation on land use right auction for allocation of land subject to land levies or land lease;

The Ministry of Finance guides the determination of the reserve prices and the financial regulations in land use right auctions for allocation of land subject to land levies or land lease as follows:

Chapter I

GENERAL PROVISION

Article 1. Scope of regulation

1. This Circular guides the determination of the reserve prices and financial regulations in land use right auctions for allocation of land subject to land levies or land lease in accordance with law provisions on land.

2. The determination of the reserve prices and financial regulations in auctions of rights to use land with properties attached to State-owned land is implemented in accordance with the Ministry of Finance’s Circular No. 137/2010/TT-BTC of September 15, 2010 providing for the determination of the reserve prices of State-owned properties put up for auction and financial regulations of the Property Auction Council (hereinafter referred to as the Circular No. 137/2010/TT-BTC) shall not be subject to this Circular.

Article 2. Subjects of application

1. Land funds development organizations or agencies assigned by People’s Committees at competent level to handle land use right auctions (hereinafter referred to as agencies assigned to handle land use right auctions).

2. Property Auction Service Centers, property auction enterprises prescribed in the Government's Decree No. 17/2010/ND-CP of March 04, 2010 on property auctions (hereinafter referred to as professional auction organizations), Land Use Right Auction Councils.

3. Organizations, individuals participating in land use right auctions.

4. Other subjects relating to land use right auction for allocation of land subject to land levies, land lease.

Chapter II

DETERMINATION OF THE RESERVE PRICES OF RIGHTS TO USE LAND PUT UP FOR AUCTION

Article 3. Principle of reserve price determination

1. The reserve prices of the land use right auction for allocation of land subject to land levies or land lease with lump-sum payment of land rents is determined so as to be close to the actual prices of land use right transferring on the market in normal conditions at the time the competent state agency make the decision on the land auction by the new use purpose of the land plot put up for auction; such prices must not be lower than the prices in the Land price list that provincial People’s Committees promulgated as prescribed by law (hereinafter referred to as land prices prescribed by provincial People’s Committees).

2. The reserve prices of the land use right auction for land lease with annual payment is the unit prices of land rents calculated by the land prices close to the actual prices of land use right transferring on the market in the normal conditions at the time the competent state agency makes the decision on the land auction by the new use purpose of the land plot put up for auction multiplied (x) by the rate (%) of the unit prices prescribed by provincial People’s Committees.

Article 4. Methods for determining the reserve prices

1. The reserve price determination is implemented in accordance with the Government’s provisions on the methods for land price determination (direct comparison method, collection method, deduction method, surplus method).

2. Other methods apart from methods prescribed in clause 1 of this Article for determining the reserve prices of land use rights must comply with the State provisions on methods for valuation in the Vietnam’s Valuation Standard

Article 5. Order, authority to determine the reserve prices

1. Order, authority to determine the reserve prices in case of land use right auction for allocation of land subject to land levies, land lease with lump-sum payment is implemented as follows:

a) Agencies assigned to handle land use right auctions are responsible to send the dossiers requesting the reserve price determination to the Service of Finance. A dossier includes:

- A written request for reserve price determination;

- The Decision on approving the land use plan;

- The Decision on approving land funds put up for auction;

- The Decision on withdrawing land;

- Price survey results (if any)

b) The Service of Finance shall cooperate with Services, branches relating to reserve price determination to submit to the President of the provincial People’s Committee for decisions as follows:

- For land prices prescribed by the provincial People’s Committee that are already close to the actual prices of land use right transferring in the normal conditions, apply the land prices prescribed by the provincial People’s Committee to the reserve prices.

- For land prices prescribed by the provincial People’s Committee that are not close to the actual prices of land use right transferring in the normal conditions, the reserve prices shall be determined by one of the following two forms:

+ The Service of Finance shall hire organizations eligible to conduct valuation to determine the land prices; on the basis of the land prices determined by the valuation organization, the Service of Finance shall preside over and cooperate with the Service of Natural Resources and Environment, the Department of Tax and relevant agencies to valuate and submit to the President of the provincial People’s Committee to determine the reserve prices. The selection of valuation organizations is implemented in accordance with law provisions on valuation.

+ In case the locality is not able to hire a organization to valuate the price or the value of a small land plot (calculated in accordance with the Price list promulgated by the provincial People’s Committee by the types of land put up for auction): below 15 billion VND regarding centrally-affiliated cities; below 5 billion VND regarding highland provinces, below 10 billion VND regarding the other provinces, the Service of Finance shall report to the President of the provincial People’s Committee for approving the cooperation with the Service of Natural Resources and Environment, the Department of Tax and relevant agencies to determine and submit to the President of the provincial People’s Committee to decide.

2. Order, authority to determine the reserve prices for land use right auction for land lease with annual payment:

a) Agencies assigned to handle land use right auction are responsible to send the dossiers requesting the reserve price determination to the Service of Finance. A dossier includes:

- A written request for reserve price determination;

- The Decision on approving the land use plan

- The Decision on approving land funds put up for auction;

- The Decision on withdrawing land;

- Price survey results (if any)

b) The Service of Finance shall cooperate with relevant agencies to consider the suitability of the land prices prescribed by the provincial People’s Committee in comparison with actual prices on the market in normal conditions, determine the land prices used as the reserve prices to organize auction and submit to the President of the provincial People’s Committee for decisions as follows:

- For land prices prescribed by the provincial People’s Committee that are already close to the actual prices of land use right transferring on the market in normal conditions, the reserve prices shall be determined based on the land prices prescribed by the provincial People’s Committee and the rate (%) of the unit prices of land lease prescribed by the provincial People’s Committee.

- For land prices prescribed by the provincial People’s Committee that are not close to the actual land use right transferring prices in normal conditions, the reserve prices shall be determined by one of the following two forms:

+ The Service of Finance shall hire organizations eligible to conduct valuation; on the basis of prices determined by the valuation organization, the Service of Finance shall preside over and cooperate with the Service of Natural Resources and Environment, the Department of Tax and relevant agencies to valuate and submit to the President of the provincial People’s Committee to determine the reserve prices. The selection of valuation organizations is implemented in accordance with law provisions on valuation.

+ In case the locality is not able to hire an organization to valuate the price or the value of a small land plot (calculated in accordance with the Price list promulgated by the provincial People’s Committee by the types of land put up for auction): below 15 billion VND regarding centrally-affiliated cities; below 5 billion VND regarding highland provinces, below 10 billion VND regarding the other provinces, the Service of Finance shall report to the President of the provincial People’s Committee for approving the cooperation with the Service of Natural Resources and Environment, the Department of Tax and relevant agencies to determine and submit to the President of the provincial People’s Committee for decisions.

Article 6. Re-determining the reserve prices

For unsuccessful auctions due to the high reserve prices, the agency assigned to handle land use right auctions shall send written report to the Service of Finance to report to the President of the provincial People’s Committee for considering and deciding the re-determination of the reserve prices to organize another auction. Principles, methods and order to re-determine the reserve prices are implemented in accordance with the provisions on the first reserve price determination.

Chapter III

LAND USE RIGHT AUCTION COUNCIL

Article 7. Conditions for establishing the land use right auction council

The land use right auction council is established in the following conditions

1. Rights to use land of high value:

a) For centrally-affiliated cities: the reserve prices for the entire project or the entire land is from 1,000 billion VND and above.

b) For highland provinces: the reserve prices for the entire project or the entire land is from 300 billion VND and above.

c) For the other provinces: the reserve prices for the entire project or the entire land is from 500 billion VND and above

The above value rates are minimum rates. Basing on the actual conditions of the locality, the provincial People’s Committee shall decide the specific value rates to form the basis for establishing the Council but such values must not be lower than the corresponding value rates stipulated above.

2. Rights to use complicated land as prescribed by law.

3. Land plots that do not meet the conditions prescribed in clause 1 and clause 2 of this Article without being able to hire professional auction organizations to implement.

Article 8. Authority to decide and establish the land use right auction council

1. The President of the People’s Committee at the competent level making decisions on land use right auction shall make the decision on establishing the land use right auction council to conduct land use right auctions in special cases prescribed in Article 7 of this Circular.

2. The composition of a Council includes: The leader of the People’s Committee at the same level (or an authorized person) is the President of the Council; the members are representatives of agencies: Natural Resources and Environment, Finance, Justice, Inspection, Construction, agencies assigned to conduct land use right auctions and representatives of relevant agencies, organizations, units.

Chapter IV

FINANCIAL REGULATION IN LAND USE RIGHT AUCTIONS

Article 9. Budget funding sources ensuring land use right auctions

1. Budget funding sources ensuring land use right auctions include:

a) State budget estimates allocated to the Service of Finance and agencies assigned to handle land use right auctions;

b) Fees for land use right auction participation collected from auction participant prescribed in Article 10 of this circular;

c) The deposits of people registering to participate in the auction but fail to participate in the auction without being subject to force majeure, people who deny to purchase the property after being announce the auction winners or violate the Regulation on auction as prescribed in the Government's Decree No. 17/2010/ND-CP of March 04, 2010 on property auction;

d) Other valid budget funding sources as prescribed by law.

2. Professional auction organizations, auction councils are responsible to collect fees from participants in land use right auctions, deposits of people registering to participate in the auction prescribed in clause 1 of this Article, and such collected fees and deposits are used to defray allowed expenses prescribed in clause 2 Article 11 of this Circular in accordance with the Records on auction contract liquidation; the remaining shall be transferred to agencies assigned to handle land use right auctions to defray the other contents as prescribed in Article 1 of this Circular.

Article 10. Fee rates for participating in land use right auctions

1. For land use right auctions for investments in building residential houses for individuals, households:

2. For land use right auctions not subject to clause 1 of this Article:

In case the auction is not held, organizations, individuals participating in property auction are reimbursed all the fees paid within 02 working days as from the date scheduled to hold the auction.

3. Depending on the specific conditions of each locality, provincial People’s councils shall specifically determine the appropriate fee rates for participating in land use right auctions but must not exceed the fee rates prescribed in clause 1 and clause 2 of this Article.

Article 11. Spending contents

1. Spending contents of the Service of Finance of central-affiliated cities and provinces:

a) Expenses on land price survey;

b) Expenses on hiring valuation organizations to determine the reserve prices;

c) Expenses on land price determination and re-determination;

d) Expenses on land valuation.

2. Spending contents for organizing land use right auctions:

a) Spending contents of professional auction organizations: means the service expenses that the agency assigned to handle land use right auctions must pay for the professional auction organization to conduct the auction from the signing of the auction contract, including: Establishing the land use right auction dossier, publicly posting, announcing, receiving the dossier registering to participate in auction, organizing property observation and answering relevant enquiries; organizing the auction and complete the result dossier of the land use right auction.

b) Spending contents of the land use right auction council:

- Expenses on establishing the land use right auction dossier, publicly posting, announcing, receiving the dossier registering to participate in auction, organizing property observation and answering relevant enquiries;

- Expenses on the auction and completing the result dossier of the land use right auction.

3. Spending contents of agencies assigned to handle land use right auctions:

a) Expenses on measuring, plotting, determining landmarks

b) Expenses on planning the land use right auction;

c) Expenses on establishing the dossier and implement procedures to handover land, relevant documents to the auction winners in order to register the land use right certificate ;

d) Other expenses directly relating to land use right auctions conducted by agencies assigned to handle land use right auctions.

Article 12. Expense rates

1. For expenses that already have standards, norms, unit prices prescribed by competent State agencies, implement in accordance with current provisions.

2. Expenses on reserve price determination:

a) Expenses on price survey must comply with prescribed regulations on expenses on investigation appertaining to non-business capital sources from the State budget;

b) Expenses on hiring valuation organizations must comply with the contract between the Service of Finance and the valuation organization or the results of valuation service tender;

c) For expenses without standards, norms, unit prices prescribed by competent State agencies, the Director of the Service of Finance shall make the decision on the spending but must be in accordance with current financial management regulations of the State and shall be responsible for such decisions.

3. Service expenses on the professional auction organization must comply with provisions in Article 13 of this Circular.

4. For other expenses without standards, norms, unit prices prescribed by competent State agencies, the Heads of agencies assigned to handle land use right auctions shall make the decision on the spending, except for the spending contents for the reserve price determination, but must be in accordance with current financial management regulations of the State and shall be responsible for such decisions.

Article 13. Expenses on land use right auction services paid to the professional auction organization

Expense rates for land use right auction services paid to the professional auction organizations in cases of successful auctions are prescribed as follows:

2. The expense rates prescribed in clause 1 of this Article are included the value-added tax, and are the maximum rates for an auction contract. The determination of specific expenses on each auction shall be based on the expense rates registered by the professional auction organizations when registering to organize land use right auctions (in case of no tender) or based on the tender results (in case of tenders). The total amount of expense rates for a successful auction contract must not exceed 300 million VND. The selection of professional auction organizations shall be implemented in accordance with current provisions of tender law and guidance of competent State agencies.

3. For unsuccessful land use right auctions, the professional auction organizations shall be paid for the actual and reasonable expenses prescribed in clause 1 Article 43 in the Government's Decree No. 17/2010/ND-CP of March 04, 2010 on property auction, but such expenses must not exceed the expense rates of a successful auction.

4. For an auction contract that includes many land plots that a part thereof is not successful, it is necessary to determine the rate (%) of successful auction and the rate (%) of unsuccessful auction according to the reserve prices to determine the expenses paid to the professional auction organization as prescribed in clause 2 and clause 3 of this Article

5. Expenses of auction services paid for professional auction organizations are determined in the Records on property auction contract liquidation.

Article 14. Establishing budget estimates, using and balancing expenses on land use right auctions

1. The Service of Finance (regarding expenses on determining the reserve prices), agencies assigned to handle land use right auctions (regarding other expenses) shall base on the income rates, spending contents, expense rates prescribed in Articles 9, 10, 11, 12 and 13 of this Circular and the estimated work load to establish budget estimates for the expenses of land use right auctions, submit to the President of the People’s Committee at the competent level for approval.

2. The Service of Finance, agencies assigned to handle land use right auctions are responsible to manage, utilize the expenses on land use right auctions as prescribed by law.

3. The Service of Finance, agencies assigned to handle land use right auctions are responsible to report the balance of expenses on land use right auctions in accordance with law provisions on managing, utilizing the State budget.

Article 15. Managing deposits of people registering to participate in land use right auctions

1. Professional auction organizations, Councils of land use right auction shall only collect deposits of people registering to participate in land use right auctions within 04 working days before the date of the auction.

2. Professional auction organizations, Councils of land use right auction must return all of the deposits of unsuccessful bidders right after the auction finishes, two (02) working days at the slowest as from the date of finishing the auction and remit to the state budget the deposits of auction winners within two (02) working days as from the date of receiving the decision on approving the auction results by competent State agencies.

3. During the time keeping the deposits, the professional auction organizations or the Councils of land use right auction are responsible for ensuring the security of the deposits.

Depending on the specific conditions, the professional auction organization shall apply preserving methods: keeping at the auction organization, in transaction bank account of the auction organization or send to the State Treasury. The Council of land use right auction shall implement preserving measures: keeping at the standing agency of the Council or send to the State Treasury.

For deposits kept in the transaction bank account of the auction organization, the arising interest (if any) and transaction expenses paid to the bank relating to the deposits shall be managed, utilized in accordance with financial regulations applying to non-business units (regarding Property Auction Service Centers) or financial mechanism applying to enterprises (regarding property auction enterprises).

Article 16. Remitting money collected from land use right auctions

Organizations, individuals winning land use right auctions for allocating land subject to land levies or land lease are responsible to remit the auction winning money to the State budget in accordance with law provisions on collecting land levies and collecting land rents.

Chapter V

IMPLEMENTATION ORGANIZATION

Article 17. Implementation organization

1. This Circular takes effect on May 01, 2012

2. Organizations, individuals are recommended to promptly send feedbacks on any obstructions during the implementation to the Ministry of Finance for resolutions in cooperation./.

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