The current law on financial obligations of land users to the state in Vietnam

ion is used in all chapters of the dissertation to present the contents and problems in a coherent and rational layout. - The analytical method is used in all chapters of the dissertation to explain the problems raised from theory to practice about the financial obligations of the land uses to the State. - The comparative jurisprudence method is used in chapter 2 and chapter 4 of the dissertation. On the basis of the regulations of the countries in the world on the financial obligations of the land owners to the State, the dissertation draws similarities, differences, and comparisons to assess the advantages and disadvantages of the law on financial obligations of the land users to the State in Vietnam and then produces solutions to perfect the law. 5. New contributions of the dissertation On the basis of selective inheritance of research results related to financial obligations of the land users to the State, with independent and serious research, the dissertation has the following scientific contributions: - Firstly, the dissertation has synthesized and systematically built up theoretical issues about financial obligations and legal theories on 6 financial obligations of the land users to the State. The economic theories of ground rent by K. Mark, the theory of land taxation by Adam Smith and Henry Goerge are analyzed to explain the revenue base, the formation basis of the financial obligations of the land users to the State. Besides, the dissertation also clarifies the characteristics, legal content structure, criteria, legal sources and factors affecting the formulation and implementation of the law on the financial obligations of the land users to the State. Based on the theoretical basis, the dissertation proposes the basis for building legal content structure of the financial obligations of the land users and determines the content of the term "financial collection from land" in the current law, as a basis for the formulation of regulations on specific revenues. - Secondly, the dissertation has analyzed the legal status and the implementation of the law on the financial obligations of the land users to the State. Based on the formulation of legal content structure of the financial obligations of the land users, the dissertation assesses the current status of the law on the obligations to pay land use fee, land rent, land use tax, income tax from the transfer of land use right, land charges and fees. One of the new features of the dissertation is the way to approach the legal status of the land fees that land users must pay. The dissertation analyzes the legal content structure of the land user's financial obligations that the dissertation has built in the theoretical part. Legal regulations on the obligation to pay land use levy, land rental, land use tax, income tax from the transfer of land use rights and land fees must be clarified according to the structure: timepoint of obligations, scope of obligations (payment rate, land price, determination), collection base, deadline for performing obligations, implementation procedures, exemption policy ... From the above-mentioned reality of law implementation, the dissertation points out the shortcomings and limitations of the law on the financial obligations of land users to the State: (i) provisions on various types of financial obligations have not covered payment base, have not ensured stability, transparency, equity, and there are cheatment and loss in 7 collection of fee; (ii) loss of land use levy due to inadequate provisions on the obligation to pay land use fees; (iii) loss of land rent due to poor land management and lack of regulation; (iv) The current tax on income from the transfer of land use rights has an inconsistent tax basis between the Law on Corporate Income Tax and the Law on Individual Income Tax; (v) regulations on financial obligations of land users have not timely adjusted new estate products emerging on the market today. - Thirdly, the dissertation provides orientation and solutions to improve the law on the financial obligations of land users to the State, in line with the goals of land financial reform and perfect economic institutions. The market in Vietnam today: (i) the construction of all kinds of financial obligations with a collection base which is added value from land by tax instruments, additional tax on the added-value; (ii) additional sanctions in case of delay in determining financial obligations; (iii) completing regulations on land lease procedures to unify the timepoint of arising obligation to pay land rent; (iv) completing the regulation on price of annual land rental payment not through auction in the direction determined by each fiscal year; (v) solutions to avoid loss of land rental; (vi) land use tax must set the tax rate at a more reasonable rate, appropriate to the basis of collection; (vii) agree that the base of the income tax from the transfer of land use rights of individuals and businesses is the same in direction of imposing on net income to ensure consistency with this tax nature; (viii) perfecting the cadastral database and forms of payment in land transactions. The solutions offered by the dissertation cover from collection base to implementation procedures, from general regulations to specific regulations. 6. The theoretical and practical significance of the dissertation Firstly, theoretically, the dissertation is a scientific work that studies systematically issues from theoretical basis to the legal status of the land user's financial obligations to the State. The dissertation has synthesized and applied the theories of classical bourgeois economists such as the economic theory of land rent, the theory of land taxation to explain 8 the basis of forming land financial obligations of land users. Theoretical basis for the law on the financial obligations of land users to the State is also clarified by the dissertation. The theoretical researches of the dissertation can contribute to helping researchers build and perfect the principles and criteria of the land user's financial obligations to the State when amending and supplementing Land Law 2013. Secondly, in terms of practice, the research results of the current legal status and practice of the law implementation on the financial obligations of land users to the State of the dissertation have pointed out inadequacies, problems, gaps in current regulation. The dissertation has proposed solutions to improve the law and the efficiency of the law implementation on the financial obligations of land users with the State; suggests reference to lawmakers as a proposed perspective for the revision of the 2013 Land Law. 7. The structure of the dissertation The dissertation includes: Introduction; Four chapters; Conclusion and List of references; Chapter 1: Overview of research situation and theoretical basis of the dissertation Chapter 2: Theories about the financial obligations of land users and the law on the financial obligations of land users to the State Chapter 3: Current state of law and assessment of the implementation of the law on the financial obligations of land users to the State in Vietnam today Chapter 4: Orientations and solutions to improve the law and efficiency of law implementation on the financial obligations of land users to the State in Vietnam today 9 Chapter 1 OVERVIEW OF RESEARCH SITUATION AND THEORETICAL BASIS OF DISSERTATION 1.1 Overview of research related to the dissertation topic The author divided into the following groups of studies: The first group: Scientific researches related to theoretical issues of financial obligations of land users to the State The second group: The sciences related to law enforcement of the financial obligations of land users to the State 1.2. The related research content is inherited by the dissertation Firstly, the contents related to the theoretical basis of the land user's financial obligations to the State are inherited by the dissertation. First, the dissertation has received the basis of the economic theory of land rent, the theory of land taxation by the classical bourgeois economists K. Mark, Henry George. This is the basis for exercising economic rights over land of land owners. Second, the Law on Financial Obligations of Land Users is an important tool to have fair in accessing to land, and to provide economic incentives among land users. These works have helped the dissertation gain a basic understanding of the role of land finance in land management in the implementation of social justice and the development of a socialist-oriented market economy in Vietnam. Third, countries with forms of land tenure different from Vietnam has had different land finance policies, but in the end, they are all based on land value and added value from land. These studies also provide the dissertation with necessary information to compare with Vietnam and evaluate the problem in a comprehensive way. Secondly, the dissertation inherits the contents related to the current legal status and the real implementation of the law on the financial obligations of the land users to the State. 10 First, the value is added from land as profitability increases, expressed in terms of money. All value added from the land will belong to the State after subtracting the value of the land user. This is the State budget revenue source, which is distributed back to the whole society through the finance and budget law. Second, regulations on collection of land use fees for the case of changing land use purposes currently contribute to increasing budget revenues, effective land management; but the use of regulating tools of the primary market, direct distribution (land use fees, land rents) is not appropriate. Third, the tax policy on income tax from the transfer of land use rights has not yet effectively regulated the value added from land not created by land users. Fourth, in the legal status and implementation of the law on the financial obligations of land users, there are evasion and avoidance of financial obligations, land prices in determining financial obligations of land users which is not appropriate to the market value of the land. These research results are used by the dissertation to invoke and prove when analyzing, explaining, arguing or stating the point of view of the dissertation as a consensus or contrary opinion. Thirdly, the dissertation inherits the contents related to solutions and recommendations to improve the law on financial obligations of land users to the State. First, studies have suggested that the land price in the calculation of land allocation, lease, and tax is the land price in the market, avoiding loss of budget revenue from land. Studies often focus on principles and methods of land price determination in order to achieve a price that is asymptotic to the market price. The solutions of the above studies are of great value to the dissertation in determining the direction of completing the land price policy. Accordingly, the dissertation will not complete the land 11 price policy in the direction of focusing on principles and methods of pricing. Second, there are studies that propose building property taxes on land. From the perspective of the law and the studied theoretical basis, the dissertation still absorbs the views of the agency that developed the draft Law on Property Tax to develop a solution to perfect the law on financial obligations of the land users to the State. Third, there are 02 studies proposing to build up the land use change tax instead of collecting land use fees when the land use purpose is changed. This is also an suggestion for the dissertation in developing ideas to perfect the law on financial obligations of the land users in Vietnam nowadays. 1.3 The issues that need to be further studied in the dissertation The first issue is in the theory, the dissertation has to continue to study the open-ended contents related to the theoretical basis including: (i) The definition, characteristics, and the role of the financial obligations of the land users to the State; (ii) The definition and legal characteristics of financial obligations of the land users; (iii) The principles and criteria of the law on financial obligations of the land users to the State; (iv) Legal content structure of the financial obligations of the land users to the State; (v) Factors affecting the Law on financial obligations of the land users to the State and (vi) The legal source of the Law on financial obligations of the land users. The second one is regarding the current situation of law, the dissertation has to clarify the curent situation of law on the land revenues that the land users must pay according to the legal content structure of the financial obligations of the land users built up in the theoretical basis of the dissertation: time of the obligations arising, scope of obligations (payment level, land price, method of determination), collection base, time of obligation performance, implementation procedures, exemption policíe and others. 12 The third one is about the proposal for law improvement, the dissertation proposes completion solutions: Firstly, the dissertation proposes to complete the general regulations on land finance in the Land Law because specific revenues in the land finance have not been clarified in any research. Secondly, the dissertation proposes solutions to complete the legal regulations for each specific type of financial obligations based on shortcomings in two groups: (i) Amending the current regulations on payment of land use fees, land rent, land use tax, income tax from the transfer of land use right, land fees; (ii) Based on the base of collecting financial obligations, proposing to add new revenues and adjust inappropriate revenues. 13 Chapter 2 THEORY OF FINANCIAL OBLIGATIONS OF THE LAND USERS AND LAW ON FINANCIAL OBLIGATIONS OF THE LAND USERS TO THE STATE 2.1. Theory of financial obligations of the land users to the State 2.1.1 Definition and characteristics of the land users Starting from the land tenure regime, the land users in the multi- ownership mode and the land users in the single-ownership mode will have different legal status. In Vietnam, land users are the entities that are allowed by the State to participate in land use relations. Only when these subjects, by their own acts, participate in land use relations, will their obligation to the State arise, including financial obligations. A land user has the following characteristics: (i) being an entity who represents the land owner to assign or transfer land use right; (ii) not being at the same time be the land owner; (iii) having no right of determining of land which belongs only to the owner; (iv) the rights and obligations of land users are determined by the State. 2.1.2 Definition of land finance and financial obligations of the land users to the State Land finance in the current Vietnamese law is public finance on land, absolutely no corporate and personal finance on land. This is also the basis for forming the financial obligations of the land user to the State in Vietnam today. The financial obligations to the State of the land users is that the land users have to pay the State money in the forms of payment of land use fees, land rent, land use tax, income tax from transfer of land use right, land charges and fees. The financial obligation to the State of the land users is a type of statutory obligation and only arises to the land user, not being the obligation of the manager. 2.1.3 Bases for the formation of financial obligations of the land users to the State 14 * Economic theory of ground rent Overview of C.Marx’s ground rent theory to explain the bases for the formation of public financial policies on land in general and financial obligations of land users in particular in terms of the entire ownership of land in which the representative performing the right is the State. The State monopolizes the land distribution in the primary market through land allocation, land lease and forms the obligation to pay land use fees and land rents. * Theory of taxes by Adam Smith and Henry Goerge Adam Smith gives four statements about taxes used to build tax rights of the State in general. Besides, stemming from the fixed land supply and inelastic land supply curve, Henry George points out that the tax rate on fixed land does not change the ground rent to be paid by the land users. The land owners will be taxed on fixed land and the government will get net economic rents. 2.1.4 Characteristics of financial obligations of the land users to the - Firstly, the financial obligation of the land users to the State is statutory obligation. - Secondly, the financial obligation of the land users to the State is performed by money with a strict procedure regulated by the State. - Thirdly, the financial obligation of the land users to the State is part of the financial revenues from land of the State. 2.1.5 Role of financial obligations of the land users to the State in land management The financial obligations of the land users contribute to equitable access to land and rational distribution of benefits between the State and the land users; is an important tool for land management and real estate market regulation to make it consistent with the socialist-oriented market economy; is the basis for ensuring the State's interests over public property and creating a regular and stable source of revenue for the State budget. 2.2. Theory of law on financial obligations of the land user to the State 15 2.2.1. Definition, characteristics and role of the law on financial obligations of the land users to the State The Law on financial obligations of the land users to the State is a set of legal regulations promulgated by the State who regulates social relations arising in the process of determining and collecting land use fee, land rent, land use tax, income tax from transfer of land use right, land fees. It can be summarized that the law on financial obligations of the land users includes the following main groups: (i) a group of legal regulations that define the payment obligations of the land users on the collection basis of land value when the land use right is established; (ii) a group of legal regulations that define the payment obligations of the land users on the collection basis of added value and the value of land in use. The law on financial obligations of the land users has the following characteristics: (i) having administrative act and public power; (ii) besides the adjustment of the land law, there is also the regulation of tax law; (iii) being built up in the direction of ensuring the economic rights of the land owners and ensuring the interests of the land users. 2.2.2. Criteria for the law on financial obligations of the land users to the State Firstly, the law on financial obligations of the land users must be transparent and public. Secondly, the law on financial obligations of the land users must ensure fairness and equality among the land users. Thirdly, the law on financial obligations of the land users must be stable. Fourthly, the law on financial obligations of the land users must ensure the content to be simple and easy to understand, the formula to be easy to apply in order to gain wide acceptance of the people. Fifthly, the law on financial obligations of the land users must ensure the sustainable development. 2.2.3. Content structure of the law on financial obligations of the land users to the State 16 Firstly, the collection base of the financial obligations of the land users to the State Secondly, the scope of the financial obligations of the land users to the State Thirdly, the time when the financial obligations of the land users to the State arise Fourthly, the deadline for implementing the financial obligations of the land users to the State Fifthly, the procedures for implementing the financial obligations of the land users to the State 2.2.4 Legal source of the law on financial obligations of the land users to the State Firstly, the system of legal documents is the resource of the law on the financial obligations of land users to the state including legal documents, decrees, circulars and decisions of the People's Committee. Secondly, case law is one of the potential sources of the future for these legal relations, not a real legal resource. Thirdly, the internal guidance documents are not officially recognized but are an important source of adjustment to legal relations on the financial obligations of land users to the State. 2.3. Factors affecting the law on financial obligations of land users to the State Factors affecting the law on the financial obligations of land users to the State include: land ownership, the current situation of land price legislation, the informal land use right market, land management relationship, land databases, people's legal awareness and international integration issues. 17 Chapter 3 LEGAL SITUATION AND LAW IMPLEMENTATION ON FINANCIAL LIABILITIES OF LAND USERS TO THE STATE IN VIETNAM TODAY 3.1 The current legal situation on financial obligations of land users to the State in Vietnam today Based on the legal content structure of the financial obligations of the land user to the State, the current situation of legal provisions on financial obligations is presented and analyzed by each type of specific financial obligations, including : (i) current status of obligations to pay land use fees; (ii) current conditions of land rental obligations; (iii) the current status of regulations on the obligations to pay land use tax; (iv) the status of regulations on the obligation to pay income tax from the transfer of land use rights and (v) the status of regulations on the obligation to pay land fees. The legal status of the land user's financial obligations to the State still has the following limitations and shortcomings: First, the content of the term "financial obligations" towards the state of land users in the current law should be clearly defined and consistent with the content of financial collection on land. Second, the provisions on financial obligations to collect on the value added from land not by land users' investment are still inadequate. Third, regulations on specific types of financial obligations still do not cover all revenue bases. There are many frauds and losses. 3.2 Reality of implementing the law on financial obligations of land users to the State in Vietnam today 3.2.1 The current situation of implementing the law on financial obligations of land users to the State in Vietnam today 3.2.1.1 Result of collection of land use levy, rental, tax and fee According to the data of budget revenue from land of the Ministry of Finance, the results of collection of land use fees and rents in the period 18 2013-2018 accounted for a large proportion of the total revenue from land, increasing sharply after 2014. Each year collection of land use fees reached 88,568 billion VND, accounting for about 70.5% of total budget revenue from land. Average annual land rental revenue reached 17,299 billion, accounting for about 13.8% of the total revenue from the land. The results of tax collection on non-agricultural land use in the years from 2013 to 2018 fluctuated around 1,500 billion VND. Agricultural land use tax accounts for about 0.06% of total land revenue. Compared with domestic revenue, non-agricultural land use tax only accounts for 0.19%, income tax from real estate transfer averaged 13,299.8 billion per year, accounting for 13.6% of total revenue from the land. The above results pose a problem in the revenue structure from land. The collections with a stable and sustainable collection base, such as land use tax, have low incentives. The collections with no sustainable base,even one time collection have high incentives 3.2.1.2 Land users comply with the law on financial obligations to the State Land users implement the law mainly in the form of law compliance, enforcement. Failure to comply with the Laws on Financial Obligations of Land Users often are in the form of evasion an