In 2003, Ms. Tran Thi Lai's family carried out procedures to transfer a residential land plot and a contract was made by the People's Committee of Dien Bien Phu City for the transfer of land use rights, clearly stating the status of residential land. Before transferring the residential land use right, her family had paid the registration fee and the land use right transfer tax.

In September 2019, her family applied for a certificate of land use right, the People's Committee of Dien Bien Phu City required payment of 100% of the land use levy. She asked if that was right or wrong?

Regarding this issue, Lawyer Tran Van Toan, Khanh Hung Law Office - Hanoi Lawyer Association replied as follows:

According to Clause 21, Article 3 of the 2013 Land Law, land use levy means an amount of money that a land user shall pay to the State when being allocated land with land use levy by the State, permitted to change the land use purpose, or having land use rights recognized by the State.

Accordingly, the land use levy that a land user who is allocated or recognized by the State for land use rights (issuing a Certificate) must pay shall base on: The land area which is allocated, or of which land use rights are recognized; the land use purpose; the land price according to the land price list prescribed by the provincial-level People's Committee or the specific land price.

In Clause 3, Article 2 of Decree No. 45/2014/ND-CP dated May 15, 2014, of the Government on collection of land use levy (still valid) stipulates that households and individuals that are currently using residential land or non-agricultural land and have such land recognized by the State as land used for a long term before July 1, 2014, upon grant of certificates of land use rights and ownership of houses and other land-attached assets (referred to as the Certificate), shall fulfill financial obligations under Articles 6, 7, 8 and 9 of this Decree, as follows:

Collection of land use levy upon recognition of land use rights (grant of certificates) for households and individuals for land used stably since before October 15, 1993, without any of the documents specified in Clause 1, Article 100 of the Land Law.

Households and individuals that have used land with houses and other construction facilities since before October 15, 1993, and, at the time of starting the use of land, did not commit any of the violations specified in Article 22 of the Government’s Decree detailing some articles of the Land Law, upon grant of certificates, shall pay land use levy as follows:

- For land with houses, land users are not required to pay land use levy for the currently used residential land area within the recognition quota for residential land for each household or individual; for the residential land area exceeding the recognition quota for residential land (if any), land users shall pay 50% of land use levy calculated based on the land price specified at Point b or c, Clause 3, Article 3 of this Decree at the time of issuance of a decision on recognition of land use rights by a competent state agency;

- For land with non-residential construction facilities, land users are not required to pay land use levy upon grant of certificates of the rights to use non-agricultural production and business land as land allocated by the State with collection of land use levy for a long term.

Residential land-using households and individuals that, at the time of starting the use of land, committed one of the violations specified in Article 22 of the Government’s Decree detailing some articles of the Land Law, upon grant of certificates of residential land use rights, shall pay 50% of land use levy for the land area within the recognition quota for residential land calculated based on the land price specified in the land price table; or pay 100% of land use levy calculated based on the land price specified at Point b or c, Clause 3, Article 3 of this Decree for the land area exceeding the recognition quota for residential land at the time of issuance of a decision on recognition of land use rights by a competent state agency.

In case of using land with non-residential construction facilities, upon grant of certificates of the rights to use non-agricultural production and business land as land allocated by the State with collection of land use levy for a long term, land users shall pay 50% of land use levy calculated based on the land price specified at Point b or c, Clause 3, Article 3 of this Decree for the non-agricultural production and business land with the longest use term as prescribed in Clause 3, Article 126 of the Land Law at the time of issuance of a decision on recognition of land use rights by a competent state agency.

Collection of land use levy upon recognition of land use rights (grant of certificates) for households and individuals for land used between October 15, 1993, and before July 1, 2004, without the documents specified in Clause 1, Article 100 of the Land Law.

Households and individuals that are currently using land and, at the time of starting the use of land, did not commit any of the violations specified in Article 22 of the Government’s Decree detailing some articles of the Land Law, upon grant of certificates, shall pay land use levy as follows:

- In case of currently using land with houses, households and individuals shall pay 50% of land use levy for the land area within the allocation quota for residential land calculated based on the land price specified in the land price table; or 100% of land use levy calculated based on the land price specified at Point b or c, Clause 3, Article 3 of this Decree for the over-quota land area (if any) at the time of issuance of a decision on recognition of land use rights by a competent state agency.

- In case of using land with non-residential construction facilities, households and individuals shall, upon grant of certificates of the rights to use non-agricultural production and business land as land allocated by the State with collection of land use levy for a long term, pay 50% of land use levy calculated based on the land price specified at Point b or c, Clause 3, Article 3 of this Decree for the non-agricultural production and business land with the longest use term as prescribed in Clause 3, Article 126 of the Land Law at the time of issuance of a decision on recognition of land use rights by a competent state agency.

Residential land-using households and individuals that, at the time of starting the use of land, committed one of the violations specified in Article 22 of the Government’s Decree detailing some of the Land Law, upon grant of certificates of residential land use rights, shall pay 100% of land use levy calculated based on the land price specified in the land price table for the land area within the allocation quota for residential land; or pay 100% of land use levy calculated based on the land price specified at Point b or c, Clause 3, Article 3 of this Decree for the land area exceeding the allocation quota for residential land (if any), at the time of issuance of a decision on recognition of land use rights by a competent state agency.

In case of using land with non-residential construction facilities, land users shall, upon grant of certificates of the rights to use non-agricultural production and business land as land allocated with collection of land use levy for a long term, pay 100% of land use levy calculated based on the land price specified at Point b or c, Clause 3, Article 3 of this Decree for the non-agricultural production and business land with the longest use term as prescribed in Clause 3, Article 126 of the Land Law, at the time of issuance of a decision on recognition of land use rights by a competent state agency.

Collection of land use levy upon recognition of land use rights (grant of certificates) for households and individuals for land allocated ultra vires before July 1, 2004.

In case of land stably using with houses, upon grant of certificates by a competent state agency, land use levy shall be collected as follows:

- For users of land with houses since before October 15, 1993, that have documents proving their payment of money to related agencies or organizations for the use of land, it is not required to pay land use levy upon grant of certificates;

- For persons stably using land with houses between October 15, 1993, and before July 1, 2004, that have documents proving their payment of money for the use of land, land use levy shall be collected as follows:

If these documents prove land users’ payment of money exactly at the rate prescribed in the 1993 Land Law, land use levy shall not be collected;

If these documents show that the paid amount is lower than the rate prescribed in the 1993 Land Law, such amount shall be converted by using the percentage of the land area for which land use levy has been paid under the land policy and the land price at the time of payment; land use levy shall be collected for the remaining land area under the land policy and at the land price at the time of issuance of a decision on recognition of land use rights by a competent state agency.

- For persons stably using land with houses before July 1, 2004, that have no documents proving their payment of money for use of land, upon grant of certificates, land use levy shall be collected as follows:

In case of land used stably since before October 15, 1993, the land use levy shall be collected equivalent 40% of land use levy calculated based on the residential land price for the land area within the allocation quota for residential land in the locality specified in the land price table at the time of issuance of a decision on recognition of land use rights by a competent state agency; or 100% of land use levy calculated based on the residential land price for the land area exceeding the allocation quota for residential land (if any) specified at Point b or c, Clause 3, Article 3 of this Decree, at the time of issuance of a decision on recognition of land use rights by a competent state agency.

In case of land used stably between October 15, 1993, and before July 1, 2004, the land use levy shall be collected equivalent 50% of land use levy for the land area within the allocation quota for residential land calculated based on the land price specified in the land price table; or 100% of land use levy calculated based on the land price specified at Point b or c, Clause 3, Article 3 of this Decree for the land area exceeding the allocation quota for residential land (if any), at the time of issuance of a decision on recognition of land use rights by a competent state agency.

The remaining non-residential land area (if any) shall be determined as agricultural land based on its use status upon grant of certificates. Land users that request change to residential land and are granted by a competent state agency certificates of residential land use rights shall pay land use levy equal to the difference between land use levy calculated based on the residential land price and land use levy calculated based on the agricultural land price at the time of issuance of a decision on change of land use purpose by a competent state agency.

Collection of land use levy upon recognition of land use rights (grant of certificates) for households and individuals for land allocated ultra vires or encroached or occupied between July 1, 2004, and before July 1, 2014, that are now considered by the State for grant of certificates.

Households and individuals using land encroached or occupied or allocated or leased ultra vires between July 1, 2004, and before July 1, 2014, which now complies with the land use master plan, upon grant of certificates by a competent state agency under Clause 9, Article 210 of the Land Law, shall pay 100% of land use levy calculated based on the land price specified at Point b or c, Clause 3, Article 3 of this Decree at the time of issuance of a decision on recognition of land use rights by a competent state agency.

In case of using land with non-residential construction facilities, upon grant of certificates of the rights to use non-agricultural production and business land as land allocated with collection of land use levy for a long term, land users shall pay 100% of land use levy calculated based on the land price specified at Point b or c, Clause 3, Article 3 of this Decree for the non-agricultural production and business land with the longest use term as prescribed in Clause 3, Article 126 of the Land Law, at the time of issuance of a decision on recognition of land use rights by a competent state agency.

Regarding Ms. Tran Thi Lai's question, due to the incomplete information provided by Ms. Lai about the currently used ​​land area, the ​​residential land area that has been transferred; the land origin; having committed or not any violation of the land law at the time of starting the use of land; having or not any land document upon carrying out the procedures for granting a Certificate, it is not possible to answer exactly whether it is correct or not when the People's Committee of Dien Bien Phu City requires her family to pay 100% of the land use levy for being granted a Certificate under regulations.

It is suggested that Ms. Tran Thi Lai to base on the land area, the land origin, the time of starting the using of land, the land documents, compare with regulations on collection of land use levy in Articles 6, 7, 8, 9 Decree No. 45/2014/ND-CP (as above); 43/2014/ND-CP on the basis for determining the stable land use (Article 21), and the handling and grant of land use certificates for households and individuals using land having violated the land law before July 1, 2014 (Article 22); Circular No. 76/2014/TT-BTC dated June 16, 2014, of the Ministry of Finance guiding some of articles of Decree No. 45/2014/ND-CP on collection of land use levy (still valid); regulations on residential land allocation quotas in urban and rural areas; the recognition quotas of residential land in case the land plot has gardens, ponds, etc. in Dien Bien province, issued together with the Decision No. 28/2014/QD-UBND dated October 14, 2014, of the People's Committee of Dien Bien province (still valid) to clearly clarify the area within the residential land recognition quota, the area exceeding the residential land quota, and financial obligations upon the issuance of the Certificate.

In her letter, Ms. Lai stated that, in 2003, when transferring land use rights, she paid the registration fee and land use right transfer tax (currently applied personal income tax). That is the fee and tax applied when there is a transaction of transferring land use rights, not the land use levy payable to the State when the land use right is recognized or the land use purpose is changed.

Lawyer Tran Van Toan

Khanh Hung Law Office, Hanoi Layer Association