Legal Subjectivity:

Measures for the Management of Land Transfer Funds: The main contents of the "Measures for the Management of Land Transfer Funds" include the establishment of a special account for the receipt and expenditure of land transfer fees, and the full payment of land transfer fees to the local government budget, land transfer fee distribution methods, etc. Among them, the distribution and management mechanism of state-owned land transfer income is the core issue. Land transfer fees are incorporated into local land transfer fee management measures: There have always been two approaches to land transfer fees: central and local management. Among them, the opinion of the Ministry of Land and Resources is to establish a special national land fund and central government departments to uniformly manage land transfer fees. This land transfer fee reform is to establish a special account for land transfer fees, cancel the special account for extra-budgetary revenue and expenditure, incorporate all total land transfer revenue into the local fiscal budget, and completely separate the two lines of collection and expenditure. Integrating local finance into the budget will increase the financial department’s say in land management. Experts said that the Ministry of Land and Resources will still play an important role in issues such as land use, overall planning, land consolidation, and compensation. Different from the Ministry of Land and Resources' idea of ??uniformly collecting land transfer fees, establishing a special fund account, and centrally allocating land transfer fees, the core of the plan proposed by the Ministry of Finance at that time was for local governments to arrange the use of land transfer fees on their own. However, it stipulates the proportion of funds used for "agriculture, rural areas and farmers" and social security, and incorporates them into local fiscal budget management to supervise their use. Due to the large fluctuations in land transfer revenue, the Ministry of Finance's plan also stipulates that 40% of the current year's land transfer revenue shall be included in the fiscal budget of the following year, and stipulates that local governments shall not be used for current revenue arrangements, and the remaining part shall be included in the fiscal budget of the following year. It is up to local governments to exercise discretion in relevant areas. In terms of the land transfer fee management system, the management method clarifies the principle that it is still managed by local governments and supervised by the central government. The difference is that in the past it was only generally stated that land transfer fees were the responsibility of local governments, but now it has been clarified that the top leaders of provincial, district and municipal governments are responsible. Experts say that the central government’s central allocation of part of the land transfer fee may curb local governments’ impulse to grant land. It is reported that according to the land transfer fee management regulations, each city must withdraw a portion of the land transfer proceeds of the current year and include it in the fiscal budget of the following year. Local governments are not allowed to use it for current revenue arrangements. The remaining part is to be used by local governments in relevant fields according to regulations. . Incorporating land transfer proceeds into the next year's budget will further increase transparency. Industry experts believe that this will help prevent local governments from "sitting on the budget" and divert local governments from short-term benefits of generating wealth from land to focus on long-term benefits. Establishing a special account Before the land transfer fee management measures, land transfer was mainly based on agreement. The two parties negotiated the price, and the transfer was directly used for municipal construction. In many places, the Development and Reform Commission and the Finance Bureau had no way to inquire about the transfer price and use. In the mid-1990s, it was discovered that 10 billion yuan in land transfer fees had been used for illegal urban construction, including building guesthouses. The central government began to pay attention to the use of land transfer fees. Experts said that the land transfer fee management regulations stipulate that land transfer funds are fiscal funds and should be managed by a special fiscal account. However, before the local government transfers this funds to the special fiscal account, there is a transitional account, which is directly controlled by the land department and used to pay land development companies for land consolidation and farmer compensation. Before entering the special account, the finance department still does not know the specific income and expenditure of this fund. After the special financial account for land transfer fees is stipulated, all land transfer fees must enter this account. For example, if a piece of land is sold for 10 million yuan, the 10 million yuan must enter the financial account and be controlled by the financial department. As for the later period, The distribution of benefits is all carried out by the financial department, which not only ensures the integrity of finance, but also reflects the characteristics of national land finance. Measures for the management of land transfer fees to support rural construction: The distribution of total land transfer proceeds in the future is: 50%-60% will be used for demolition compensation and primary land development, 15% will be used for rural land development and rural infrastructure construction, 5 % will be used for low-rent housing construction, and the rest will be used for urban infrastructure construction and urban land development. Some provinces and cities have already taken the lead. Starting from May 1, Chongqing has stipulated that the proportion of agricultural land development funds calculated from land transfer fees will be adjusted from 15% to 20% of the average net income from land transfers approved by the state. "In the previous land transfer fee management regulations, the proportion of land transfer fee income in various regions used for public projects such as compensation for landless farmers, agricultural land development, and low-rent housing construction was relatively low. Most of it was used for urban infrastructure construction and urban land development. , This has become an issue that the central government has to pay attention to. "Experts said, "Such rigid regulations are mainly to support the construction of new rural areas. "With the introduction of new regulations and the gradual improvement of relevant laws and regulations, our country's land management system will gradually appear." A pattern of sound system, clear division of labor and multi-departmental coordination. The “free space” of local governments in the land field will be narrowed, which will help curb land violations and violations. Nature of transfer fee Land transfer fee is actually the sum of the land rent for a certain number of years when the land owner transfers the land use right. The essence of the current land transfer fee can be summarized as it is a contradictory complex that has the nature of land rent accumulated for several years, and has the nature of a one-time collection of tax-like but non-tax properties. Land transfer fees are in the nature of land rent rather than tax. Taxation is the economic obligation of the state as administrator to taxpayers to pay for the state, which is mandatory, free and fixed.

The land transfer fee will be accumulated as the total land rent for several years and collected in one lump sum, which seems to have the non-rental nature of taxation. The land transfer fee itself is such a complex of inherent contradictions. In other words, the land transfer fee is a lease but not a lease, and it is like a tax but not a tax. Land transfer fees have become the main source of extra-budgetary revenue for local governments. To be precise, the land transfer fee is the transaction price of land use rights; it can also be simply understood as the land price, the price of which depends on the supply and demand relationship in the land market. The "Land Management Law" clearly stipulates the scope of use of land transfer fees. Land transfer income is mainly used for land acquisition and demolition compensation expenditures, land development expenditures, agricultural support expenditures and urban construction expenditures. In the case of state-owned land, land transfer fee management measures, the state transfers land use rights to land users within a certain period of time as the land owner (the Ministry of Land and Resources requires developers to develop within 1 or 2 years, such as hoarding land Land users are required to pay fines or take back land use rights, but most local governments do not implement this and most favor developers, resulting in tight housing supply and skyrocketing housing prices). A certain amount of monetary payment paid by land users in one time or in installments is called land transfer fee. The level of land transfer is closely related to the use, location and land transfer period. Land transfer fees are generally paid in one lump sum. However, the transfer fee for some land is huge and the transfer procedures take a long time, so there are also forms of multiple payments. It can be seen that this kind of multiple payments is still different from the now fashionable "annual rent system". Legal objectivity:

Currently, there are four ways to transfer state-owned land use rights in my country: agreement, bidding, auction, and listing. Among these four methods, bidding, auction, and listing are open and competitive. Generally, there is no phenomenon of transferring state-owned land use rights at low prices. Since agreement transfer does not introduce a competition mechanism, who will use the land, especially the land transfer fee? The determination has subjective factors. Illegal low-price (including gratuitous) transfer mainly occurs when land is transferred by agreement, so it is crucial to standardize the minimum price standard for agreement transfer. It can be seen from the above regulations that the land transfer fee for the negotiated transfer of state-owned land use rights shall not be lower than the lowest agreed transfer price. The lowest agreed transfer price is the standard to measure whether the state-owned land use rights are transferred at a low price. However, in actual work, due to differences in the type and purpose of the land transferred, and the use status of the acquired land, it is no longer enough to rely on the lowest price standard for agreed transfer determined by the above principles to measure whether state-owned land is transferred at a low price. On the one hand, the operability is low, and the land transfer may be a direct agreement to transfer new construction land; on the other hand, it may also be the payment of land transfer fees for the original allocated land use rights; furthermore, it may also be land involved in enterprise restructuring. Transfer etc. Land prices have different connotations in different situations, and the standards for paying land transfer fees should also be very different. First of all, the minimum price standard for negotiated transfers, which is determined only based on a certain proportion of the benchmark land price for different uses, cannot meet the needs of land transfer prices for different land conditions and is difficult to operate. As a result, the minimum price standards for negotiated transfers announced in some places are useless. Second, the connotation of the land price for the specific land transfer is often inconsistent with the connotation of the lowest price for the land transfer under the agreement. The two are not comparable. If the land transfer fee is determined based on the agreement, it may not only lead to the loss of state-owned land assets, but also often lead to infringement. The rights and interests of the original land users. Third, according to the Ministry of Land and Resources’ “Notice on Reforming the Measures for the Approval of Confirmation of Land Valuation Results and the Disposal of Land Assets”, the price of allocated land use rights can be included in corporate assets as corporate equity. If the allocated land needs to be converted into paid-use land, the price of allocated land use rights will be calculated as transferred. The transfer fee is calculated based on the difference between the price of land use rights and the price of allocated land use rights. This is no longer applicable to the minimum price standard for agreed transfers determined in accordance with the provisions of the above documents. Minimum Price Confirmation Method The minimum price for agreed transfer cannot simply be determined by a certain proportion of the benchmark land price. Standards should be formulated for specific types of land to be transferred and the connotation of land prices. The lowest price for the agreement to transfer new construction land has been determined. If new construction land is transferred by agreement, the land obtained may be raw land, rough land or mature land. Raw land mainly refers to land that has completed land use approval procedures but has not undergone infrastructure development and land leveling. Land acquisition fees such as land compensation fees, resettlement subsidies, taxes and fees incurred during land acquisition, etc. are paid by those who apply to use the land. The assessment of the land transfer price under the agreement should be the land value-added fee generated by converting agricultural land into construction land, or land ownership income and net land income. Of course, land transfer fees are different from the paid use fees for new construction land. Land transfer fees are the transfer of land use rights to land users by the land administration departments of the municipal and county people's governments, and the land users pay the fees to the land users according to the prescribed standards. The entire land transfer price paid by the state. The paid land use fee for newly added construction land refers to the average land fee collected by the State Council or the provincial people's government from the municipal and county people's governments that have obtained newly added construction land through transfer or other paid use methods when approving the conversion of agricultural land or land acquisition. Net income. Although the entities and nature of payment are different, since the collection standards for newly added construction land are determined by the Ministry of Land and Resources in accordance with the national urban land classification, urban land levels, benchmark land price levels, etc., the standard formulation methods and collection purposes are The land transfer fees are similar. Therefore, the minimum price for new construction land transfer agreements can be determined based on this.

According to the "Administrative Measures for the Collection and Use of Paid Land Use Fees for Newly Used Construction Land", the collection standards for various regions are set so that the proportion of newly added construction land included in paid land supply according to law is approximately 60%, thereby determining the average net income collection quota standard. Therefore, The determination of the lowest price for agreed transfer can be calculated according to the following formula: The lowest price for agreed transfer = the collection standard of paid land use fees for newly added construction land ÷ 60% of the gross land and mature land with construction conditions, the lowest price for agreed transfer can be determined based on the benchmark The land price and the lowest price for raw land transfer plus the corresponding land development fees are comprehensively considered. Land price is an organic whole. Separating land transfer fees based on land composition is one-sided and has limitations in use. It is generally only applicable to industrial land and is not applicable to commercial, residential and other land. However, it is an effective method to establish the minimum price standard for the agreement to transfer new construction land (for industrial purposes). For new construction land used for commercial and residential purposes, the lowest agreed transfer price shall be determined based on the benchmark land price; if raw land or gross land is transferred, the corresponding average land acquisition fee and development fee shall be deducted from the benchmark land price. wait. Enterprise restructuring involves the determination of the lowest price for the transfer of allocated land use rights agreements. According to the Ministry of Land and Resources' "Notice on Reform of the Approval Methods for the Confirmation of Land Valuation Results and the Disposal of Land Assets", when an enterprise is restructured and the allocated land needs to be converted into paid-use land, the difference between the price of the transferred land use rights and the price of the allocated land use rights shall be calculated transfer fee. The land transfer fee calculated based on this may be lower than 40% of the denominated land price. For the back-payment of land transfer fees involved in enterprise restructuring, it cannot be regarded as "not less than 40% of the denominated land price" as a measure of low-price transfer of state-owned land. standard.