Peculiarities of setting rent rates for land plots of state and communal property on which industrial park is being created
Part 1 Article 7 of the Law of Ukraine № 5018-VI as of 21.06.2012 "On industrial parks" (with changes) (hereinafter referred – Law) stipulates that industrial parks may be created on leased land plots at the initiative of tenants after making appropriate changes to land lease agreement and the lessor's decision to approve industrial park concept.
If there is a winner of electronic auction for lease land plot of communal property, who plans to create industrial park on this land plot (hereinafter – Park), legality of making changes to the land plot lease agreement and establishing preferential rent rate (hereinafter – Payment) arises, according to Paragraph 284.6 Article 284 of the Tax Code of Ukraine (hereinafter – Code).
Basis for calculating Payment for land plot is a lease agreement for such land plot. Size and payment terms are established in the lease agreement between the lessor (owner) and the lessee (Sub-paragraph 288.1 Paragraph 288.4 Article 288 of the Code).
Sub-paragraph 288.5.3 Paragraph 288.5 Article 288 of the Code stipulates that in case of determining the tenant on a competitive basis, annual amount of payment may exceed the maximum amount of Payment established in Sub-paragraph 288.5.2 Paragraph 288.5 Article 288 of the Code, namely 12 percent of the regulatory monetary evaluation.
At the same time, according to Paragraph 284.6 Article 284 of the Code in terms of the land payment for land plots included in territory of industrial parks, included in Register of industrial parks, normative monetary evaluation of which has been carried out, used by the initiators of creation of industrial park, management company of industrial park and participants of industrial parks, local self-government bodies can:
1) set the land tax rates and Payment in amount smaller than the amount of land tax established by the decision of relevant local self-government body for a certain category of land paid in relevant territory;
2) exempt from the land tax payment.
Taking into account above specified, basis for application of norm of Paragraph 284.6 Article 284 of the Code is:
changes to the lease agreement in terms of determining that the land plot was provided specifically for creation of the Park;
approval of the local self-government body of the Park concept;
inclusion of the Park in Register of industrial parks;
acquisition of the initiator’s status, management company or the Park participant by the lessee of land plot.
Herewith, it should be noted that according to Article 23 of the Law of Ukraine № 161-XIV as of 06.10.1998 "On land leasing" (with changes) Payment for land plots owned by individuals and legal entities are revised upon the agreement of parties. Payment for land plots of state and communal property leased at land auctions cannot be reduced by the agreement of parties during the lease agreement term, as well as in case of its renewal (except in cases of conservation of such land plots, as well as recognition of land plots as contaminated (potentially contaminated) with explosive objects).
If there is a winner of electronic auction for the lease of land plot of communal property, Payment rate specified in the land plot lease agreement is determined by the bidding result, not by the decision of local self-government body. Therefore, norm of Paragraph 284.6 Article 284 of the Code cannot be applied to the lease agreement.
