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The Revenue Department has recently announced changes to the taxation of foreign-sourced income brought into Thailand by Thai tax residents. Previously, Thai tax residents who earned income abroad would not be subject to personal income tax if the taxable income was not brought in within the same tax year that it was earned.

Effective from 1 January 2024 onwards, foreign-sourced income brought into Thailand in any tax year will therefrom be subject to Thai personal income tax. Additionally, personal income tax on foreign-sourced income shall be applied for the foreign-sourced income incurred from this date onwards. Simply put, this means that only income generated and brought into Thailand from the start of 2024 will be subject to Thai personal income. If the income was generated before 2024 and brought into Thailand in 2024, or later years, it will not be subject to Thai personal income tax.

Key Points of the Revenue Department Order:

A Thai tax resident is defined as an individual residing up to 180 days or more in Thailand within a tax year. Under the new regulations, Thai tax residents who earned foreign-sourced income in the same tax year are required to include foreign-sourced income in their Thai Personal Income Tax calculations in the tax year in which the taxable income was brought into Thailand.

This includes income from employment, foreign business activities, or foreign property ownership brought into Thailand in the tax year. The combined income, including foreign sourced income, is subject to Thai Personal Income Tax at progressive rate of 0-35% of the net income.

Those who have experienced tax deductions or payments on their foreign-sourced income in another nation may have the opportunity to use these tax deductions or payments as tax credit against their Thai Personal Income Tax in Thailand or exemption, as the case may be. This option is available in accordance with the rules prescribed in the applicable Double Tax Treaties between Thailand and the respective foreign country.

These modifications represent a considerable transformation in the taxation of foreign-sourced income brought into Thailand, requiring thoughtful deliberation from individuals impacted by the updated regulations.

Seeking guidance from tax professionals is advisable to ensure proper compliance and tax optimization. Please reach out to law@ilct.co.th for any specific legal enquiries.

Personal Income Tax on foreign-sourced income brought into Thailand by Thai tax residents [please download]

In a significant legal development, the Minister of Interior, acting on the recommendations of the Hotel Business Promotion and Control Committee, has issued the “Ministerial Regulation on Hotel Business Types and Criteria (No. 2) B.E. 2566 (2023),” hereinafter referred to as the “New Regulation.” Published in the Royal Gazette on 30th August 2023.  This New Regulation is set to become effective on 29th October 2023, marking an amendment to the “Ministerial Regulation on Hotel Business Types and Criteria B.E. 2551 (2008).”

This article outlines the New Regulation’s three key provisions and their implications for the Thai hotel industry:

1. Revision of non-hotel accommodation criteria: The New Regulation broadens the definition of ‘Non-Hotel Accommodations’ from those with up to 4 rooms and 20 guests to those with up to 8 rooms and 30 guests. This change will mean that over 50,000 previously recognized small hotels will now be excluded from the Hotel Act classification (Section 4(3)). The amendment aims to preserve unique architectural and cultural characteristics in local community accommodations, which often exceed 4 rooms. These changes will reduce the burden on communities to conform to Building Control Regulations to obtain a Hotel Business License, preventing adjustments that could diminish cultural building uniqueness.

The New Regulation not only reclassifies many small hotels but also encourages community accommodations for tourism home stays. It mandates property owners (recognized in this context by the Ministry of Interior as individuals as opposed to companies or other juristic persons) intending such use to notify the hotel registrar. The registrar conducts inspections and, if compliant, issues a notification. Owners must inform the registrar if they cease such usage. This increases supervision of Non-Hotel Accommodations, complementing existing hotel regulations.

2. Revisions to Hotel Types: The revised hotel regulations introduce changes to the categorization of hotels. Under the previous regulations, ‘Type 1 hotels’ were defined as establishments with up to 50 rooms, while ‘Type 2 hotels’ were those offering guest rooms as well as a canteen room. This required hotel operators planning to construct hotels with more than 50 rooms to include a canteen room. However, the New Regulation redefines ‘Type 1 hotels’ as those with up to 50 rooms and ‘Type 2 hotels’ as those with more than 50 rooms or those with a canteen room. This modification effectively eliminates the requirement for hotels with over 50 rooms, that solely provide accommodations, to include a canteen room in their facilities. Notably, this modification complements the great demand for local street food in Thailand, making it unnecessary for hotels to provide a canteen room. Nevertheless, Type 3 and 4 hotels have remained the same.

3. Revisions to Buildings with Special Characteristics: The New Regulation is connected to the “Ministerial Regulation on Building Control Criteria and Security Systems for Hotel Businesses B.E. 2566 (2023),” having also been published on the same day. This regulation sets out specific rules for unique hotel buildings to be able to apply for construction certificates, which is the most significant qualification for the hotel operation license application
   According to the regulation, unique hotel buildings that can now operate as hotels include raft or boat hotels, tent hotels, modified wreck vehicles, container hotels, and hanging hotels with heights exceeding 2 meters from the ground, such as tree houses. The regulation sets specific requirements for these unique hotel buildings. For example, it acknowledges that these buildings cannot easily meet the standard hotel building requirements related to building structure and fire resistance materials. Therefore, the regulation removes these obstacles to preserve the distinctive character of each special hotel building.

Nevertheless, the regulation continues to ensure the safety of these unique hotel buildings. For instance, it mandates that each permitted unique hotel building must have one portable fire extinguisher for every 112 square meters of the hotel area. In essence, these buildings can now meet the criteria to apply for construction certificates, enabling hotel operators and potential investors to open these distinctive buildings as hotels.

As a result of the notable changes in these laws, it is advised that hotels seek legal guidance for specific queries. Reach out to law@ilct.co.th for any support.

Amendment to the “HOTEL” definition and criteria to accommodate operators with small unique accommodations (please download)

Digital Tax Ecosystem: Thailand’s Steps to Tax Compliance and Preventing Fraud

In pursuit of fully leveraging the Digital Tax Ecosystem by 2028, Thailand’s Revenue Department has rolled out regulations related to digital systems. The latest development in this endeavor is the release of Notification No. 438 by the Director-General on Income Tax, focusing on Tax Returns Concerning Withholding Tax at Source for Individuals, dated September 21, 2023.

This notification serves several pivotal objectives:

1. Simplifying Taxation for Individuals: The primary aim of this notification is to streamline the tax filing process for individual taxpayers. It enables them to conveniently access their income information through the “My Tax Account” platform while filing their personal income tax returns.
2. Preventing Tax Refund Fraud: A key focus of these regulations is to deter fraudulent claims for tax refunds by individuals.
3. Combatting False Expenses: The notification also seeks to prevent juristic persons or individuals, from fabricating expenses, thereby ensuring the accuracy and integrity of financial reporting related to taxes.

Notification No. 438 outlines specific provisions that employers and payers are obligated to adhere to:

Digital Filing Requirements: Employers and payers are required to submit their withholding tax returns, specifically P.N.D. 1 and P.N.D. 1 Kor, exclusively through designated digital channels. These channels include e-filing, e-withholding tax, and other digital media channels i.e., SWC user interface program.

Non-Digital Filing: In situations where employers or payers encounter challenges in filing tax returns via digital channels, they are required to formally notify the Director-General in writing. This notification must include a comprehensive explanation of the obstacles preventing the use of digital channels for tax return submissions.

Submission of Notification Letter: The notification letter, explaining the incapability to file digitally, must be submitted alongside the tax return to the Revenue Officer at the Area Revenue branch office.

Understanding P.N.D. 1 and P.N.D. 1 Kor:

• N.D. 1: Effective from the tax month of October 2023 onwards, employers shall file the monthly tax return for employees’ income via digital systems on a monthly basis by the 15th day of the following month. It encompasses various income sources, including salary, wage, per diem, bonus, pension, and house rent allowance. Moreover, it also encompasses income derived from a post or performance of work paid to individuals, such as commissions, subsidies, and meeting allowances.
• N.D. 1 Kor: Effective from the tax year of 2023 onwards, this annual tax return is utilized to consolidate income from employment and income from a post or performance of work over the course of a year.

As Thailand continues its transition toward full digital integration in taxation, stakeholders are urged to remain vigilant and well-informed about these evolving regulations to ensure compliance with the law. For specific inquiries, please contact law@ilct.co.th.

Digital Tax Ecosystem: Thailand’s Steps to Tax Compliance and Preventing Fraud

Introduction:

Thailand maintains its position as a popular destination for foreign investment, with a stable economy, favorable investment climate, and strategic location in Southeast Asia. In 2022, foreign investment increased by 56% to 129 billion baht. With 151 investors (or 26% of the overall foreign investors) investing a total amount of 39.5 billion Baht, Japan is the leading foreign investor in Thailand. For Japanese investors, Thailand offers a range of investment opportunities across various sectors, from manufacturing and electronics to tourism and renewable energy.

In this article, we will provide an in-depth guide to investing in Thailand for Japanese outbound investors. We will discuss the legal and regulatory framework governing foreign investment in Thailand, the industries and sectors that offer the most promising investment opportunities for Japanese investors, and the investment strategies and structures that are most effective in the Thai market.

By the end of this article, readers should have a fairly good understanding of the Thai investment landscape and the key considerations for Japanese investors looking to invest in the country. Whether you are a seasoned investor or new to the Thai market, this article will provide you with the insights and knowledge you need to make informed investment decisions and maximize your chances of success in Thailand.

Section 1: Understanding Thailand’s Legal and Regulatory Framework

Foreign investors need to seek advice on Thailand’s legal and regulatory framework prior to investing in Thailand for there are various investment structures available to be considered, from branches of overseas parents to subsidiaries and unincorporated joint ventures (popularly chosen for construction or fixed-term projects). Each structure has its own advantages and disadvantages, and it is important to carefully consider the specific needs and goals of the investment before deciding on a structure.

The country has a range of laws and regulations that govern foreign greenfield investments, including the Foreign Business Act and the Investment Promotion Act. In this regard, understanding Thailand’s legal and regulatory framework is crucial for foreign investors looking to invest in the country. By navigating these laws and regulations carefully, foreign investors can unlock the full potential of Thailand’s economy and maximize their chances of success in the country.

The Foreign Business Act (FBA), B.E. 2542 (1999) is the primary law regulating foreign investment in Thailand. It sets out the rules and procedures for foreign businesses operating in the country and defines the types of businesses that are restricted or prohibited from foreign ownership. Under the FBA, foreign ownership is restricted or prohibited in certain sectors, such as banking, telecommunications, and media. However, foreign investors may be allowed to invest in these sectors through incorporated joint ventures with Thai investors or by obtaining special permission from the relevant government agencies. The FBA also governs the establishment of foreign representative and regional offices in Thailand. While these procedures are optional, they can be beneficial for limited “non-trading” activities such as market surveys, quality control work, and the search for Thai products to be exported. However, if a foreign company engages in such activities, it will be required to obtain a Foreign Business License from the Department of Business Development, Ministry of Commerce. This process typically takes around three months, and if approved, the company will be entitled to receive up to two visas and work permits for a representative office and five for a regional office for its expatriate managers. Foreign banks, securities companies, and finance companies may establish representative offices under separate regulations.

The Foreign Business License (FBL) allows foreigners to own 100% of a company incorporated under Thai law, the FBL is required for all foreign-owned businesses operating in Thailand, except for those that are exempt under the FBA or the Investment Promotion Act (IPA). The application process for the FBL requires detailed information about the proposed business activities and shareholding structure and the key to successfully obtaining the FBL is to show that such foreigner can transfer knowledge and technology to the Thai people, including hiring Thai people. Once the FBL is obtained, the next step is to register the business with the Department of Business Development and obtain a company registration number. Foreign-owned companies must also obtain various licenses and permits, such as tax identification numbers, VAT registration, and work permits for foreign employees.

The IPA is another key piece of legislation that encourages and regulates foreign investment in Thailand. The IPA provides various incentives to foreign investors, such as tax holidays, exemptions on import duties, and permission to own land. The incentives offered by the IPA are intended to attract foreign investment to certain targeted industries and regions.

Section 2: Factors to be considered when establishing a business organization in Thailand

When establishing a business organization in Thailand, there are several factors to consider, including non-tax considerations and tax considerations. From a non-tax perspective, it may be advantageous to form a Thai limited company instead of a branch of a foreign corporation, as the former allows for more flexibility in terms of ownership, and may be easier to obtain registrations and licenses. When dealing with the Thai government, it is also generally advantageous to be a company incorporated in Thailand, as this may lead to the granting of certain privileges and permissions.

On the tax front, all companies incorporated under Thai law or incorporated under foreign law and carrying out business in Thailand are subject to Thai corporate income tax on net profit. However, net profits of branches operating business abroad will be subject to Thai corporate income tax if the head office is incorporated under Thai Law. The activities of representative offices and regional offices may not incur a corporate income tax liability if they are limited to some specific one. Dividends paid to foreign parent companies or shareholders are subject to a withholding tax. The withholding tax may be exempted under the mentioned IPA. The remittance of profits by a branch to the head office is also subject to a withholding tax. Interest, fees, and other amounts remitted to foreign corporate shareholders are subject to a withholding tax, but payments of such amounts by a branch to its head office may be treated as a taxable remittance of profit.

Foreign tax credits may be available in some cases. Moreover, double taxation may be eliminated with the methods specified in the Avoidance of Double Taxation Agreement between Thailand and relevant countries, i.e., underlying tax credit and tax sparing credit. It is recommended to consult with tax counsel to determine the availability of double taxation elimination agreements and the impact of any applicable treaties.

Section 3: Opportunities in Thailand’s Investment Landscape

The Japan-Thailand Economic Partnership Agreement (JTEPA) is a key factor that makes Thailand an attractive destination for Japanese investors. The JTEPA is a bilateral free trade agreement that was signed in 2007 and aimed at strengthening economic ties between Japan and Thailand. The agreement offers various benefits for Japanese investors, including reduced tariffs on goods and services, streamlined customs procedures, and protections for intellectual property rights. Consequently, the manufacturing sector offers attractive investment opportunities for Japanese investors, also considering that most manufacturing businesses are not on the restricted list and can be 100% Japanese-owned. Thailand offers a skilled workforce, a strategic location in Southeast Asia, and a favorable investment climate. It has a well-established manufacturing industry, with a strong focus on food processing, electronics, and automotive. Japanese companies, historically, have been among the largest investors in Thailand’s manufacturing sector, with a particular focus on automotive production and assembly. In addition, the Industrial Estate Authority Act also provides the benefit of allowing foreign investors to own a land provided that certain conditions are met.

Another sector that offers significant potential for Japanese investors is renewable energy. Thailand has set ambitious targets for renewable energy development, aiming to increase the share of renewable energy in its total energy mix to 30% by 2037. The country offers a range of incentives for renewable energy development, including tax incentives, feed-in tariffs, and soft loans. Japanese companies have already made significant investments in Thailand’s renewable energy sector, with projects in solar, wind, and biomass energy.

Tourism-related businesses also offer potential investment opportunities for Japanese investors. Tourism industry accounts for a significant share of the country’s GDP and Japan is one of the top sources of foreign tourists in Thailand, with millions of Japanese visitors traveling to the country each year. Several Japanese companies invested, subject to the FBA, in Thailand’s tourism sector, with projects in hotel and resort development, entertainment, and leisure. In the past few years, and with more strength after the Covid-19 pandemic, the Thai government has launched various initiatives to promote tourism all over the world, such as the “Amazing Thailand” campaign, which aims to boost the number of international visitors to the country.

Conclusion:

Thailand offers a promising investment destination for Japanese outbound investors, thanks to its strategic location, skilled workforce, and business-friendly environment. However, investing in Thailand requires a thorough understanding of the legal and regulatory framework, as well as the cultural nuances of doing business in the country.

It is important for Japanese investors to work with experienced legal counsel and seek out professional advice to maximize their chances of success in Thailand. By carefully evaluating potential investment opportunities, negotiating contracts effectively, understanding cultural differences, and selecting the appropriate investment structure, Japanese investors can successfully navigate the Thai market and realize significant returns on their investments.

We encourage readers to explore potential investment opportunities in Thailand and seek out the expertise of ILCT professionals to guide them through the investment process.

Authors:

• • Mallika E.S. Margherita, Partner, mallikam@ilct.co.th
  • Palawi Bunnag, Partner, palawib@ilct.co.th

LinkedIn: https://th.linkedin.com/company/ilct—international-legal-counsellors-thailand-ltd-

Facebook: https://www.facebook.com/ILCTBangkok/?locale=th_TH

Legal overview for Japanese investment in Thailand-download

Thailand’s Royal Decree Announces Tax Exemptions for Digital Token Corporate Transfers

On March 6, 2023, in a significant move, the Thai Cabinet approved tax measures pertaining to Digital Investment Tokens. Following this, Royal Decree No. 779 was unveiled, exempting tax on the transfer of Digital Investment Tokens, effective from August 16, 2023.

“Digital Investment Tokens” are specific digital tokens structured to represent the rights of individuals to invest in various projects or businesses under the Digital Asset Business Act B.E. 2561 (2018) as amended.

Key Points of the Royal Decree:

• Exemption in the Primary Market:
  • Companies and juristic partnerships will now be exempt from corporate income tax and VAT for revenues or taxable values derived from transferring digital investment tokens. This is applicable for tokens offered publicly according to the Digital Asset Business Act. This includes transactions as far back as May 14, 2018.
  • For hybrid digital tokens—those that function as both Investment Tokens and Utility Tokens or are designed for other purposes—the exemption is solely granted to the portion identified as Investment Tokens.
• VAT Implications in the Secondary Market:
  • Transfers of digital investment tokens conducted since May 14, 2018, are exempt from VAT.

This decree underscores the rising prominence of digital assets in the contemporary financial realm. Aiming to equate the tax treatments of digital investment tokens with traditional securities, the Thai Government is solidifying its dedication to an unambiguous and uniform regulatory architecture, encouraging heightened investments in the digital asset sector.

For additional information on this or any other aspect of the Digital Asset Business regulations in Thailand, please reach out to ILCT Co., Ltd. at law@ilct.co.th

Thailand’s Royal Decree Announces Tax Exemptions for Digital Token Corporate Transfers – download

The Cabinet recently approved a corporate income tax and VAT exemption on the public offering and trading of investment tokens in both primary and secondary markets. This tax exemption applies to companies or juristic partnerships that issue and offer investment tokens to the public in the primary market, as well as individuals, companies, or juristic partnerships that transfer or trade investment tokens in the secondary market.

The tax incentives include a corporate income tax exemption and VAT exemption for companies or juristic partnerships that offer investment tokens to the public in the primary market under the Emergency Decree on Digital Asset Businesses B.E. 2561 (2018) (“Digital Asset Businesses Law”).

For the transfer or trading of investment tokens in the secondary market, VAT is also exempted. This tax exemption is applicable to both companies and individuals.

In the event of hybrid tokens i.e., a mixture of both investment and utility tokens or tokens issued for other purposes under the Digital Asset Businesses Law, the tax base for investment tokens would be exempted from VAT if the investment tokens can be segregated from utility tokens or tokens issued for other purposes.

It is important to note that these tax incentives are subject to specific conditions as specified in the Notification of the Director-General of the Revenue Department. Moreover, the measure will apply retroactively from May 14, 2018. Therefore, it is advisable to consult a tax specialist to ensure compliance with all requirements before taking advantage of these tax exemptions.

In conclusion, this recent approval of corporate income tax and VAT exemptions on public offering and transfer or trading of investment tokens is a positive development for companies and individuals involved in digital asset businesses. These tax incentives provide a significant boost to the digital asset industry and further establish Thailand as a hub for digital asset businesses. Companies and individuals should seek professional advice to ensure compliance with all regulations and requirements. ILCT remains your preferred choice to seek tax advice relating to all businesses and industries.

Thailand Approves Tax Exemption on Investment Tokens-Download

Thailand’s Work from Home Bill introduces an amendment to the Labor Protection Act B.E. 2541, a critical labor law in the country. In particular, the amendment adds Section 23/1 to the Act, providing a clear regulatory framework for employers and employees who engage in remote work relationships, outlining their respective rights and obligations. The bill aims to offer additional options for work arrangements, elevate the level of labor protection, provide work stability, and enhance the quality of life for employees in Thailand.

According to the amendment, an employer and employee can reach an agreement on home and remote working in the employment contract or in the form of electronic information where it can be accessed and utilized without changing the meaning. The agreement may allow the employee to work outside the business premises using information technology, like computers and smartphones if the job nature permits. The agreement must be in writing, whether physical or electronic, and contain specifics such as the period of the agreement, working hours, rest periods, overtime work and holiday work criteria, leave types, work scope, and employer control and supervision.

Under the amendment, remote employees can refuse contact from their employers or supervisors beyond working hours, unless they gave prior written consent. Furthermore, the bill also requires employers to treat on-premises and remote employees equally. As such, it requires the adoption of policies to regulate every aspect of remote working, including the amendment of current work policies. Other topics that may be included in remote work policies would be the distribution of company supplies among all employees and related costs, the protection of company data, and IT security. In addition, employers shall ensure that remote working settings will not undermine teams’ collaboration and instead will support innovation.

It is worth noting that the amendment does not compel employers to allow remote work; it only provides the option and the regulatory guidelines to do so if mutually agreed. The amendment also does not impose any criminal penalties for violating its provisions. However, the employees who violate the consent letter and the employment contract may be penalized by the Company’s Work Rules.

The Work From Home Bill will be effective on April 18, 2023, 30 days after its publication. The regulation will significantly impact the labor landscape in Thailand, offering flexibility and added benefits to both employers and employees.

ILCT can support can advise and assist companies in all labor matters, including compliance with labor protection and labor relations law, preparation of work policies, and dispute resolution in the Labor Court.

Thailand’s Work from Home Bill introduces an amendment to the Labor Protection Act B.E. 2541-Download

On June 21, 2022, the Cabinet of the Royal Thai Government decided to exempt the Personal Income Tax (PIT) collection from foreign actors when working on films shot in Thailand in the next five years, with the expectation of increasing the revenue in Thailand, publicizing and promoting the image of Thailand through foreign films, and developing the skills and potential of personnel in Thai film industries. The regulation will be effective starting from August 2, 2023.

In general, foreign actors or actresses shall be liable to pay PIT in Thailand on income derived from shooting films in the Kingdom. The said income may be exempted from PIT under the Avoidance of Double Taxation Agreement between Thailand and the foreign country in which the foreign actor has its tax residency.

However, the new measures exempt actors and actresses from PIT under the conditions that the actor or actress is domiciled abroad, and receives an income due to his or her performance in a foreign film produced by a company or juristic partnership incorporated under foreign law which obtains a filmmaking permit under the law governing films and videos.

In addition, it is useful to remind that the Department of Tourism provides measures to promote foreign film shooting in the form of cash rebates at the rate of 15-20% of the expenses incurred in the country – with the ceiling being fixed at 75 million baht – when the funds are obtained from foreign sources and paid to Thai individuals or Thai juristic persons.

For any inquiries related to regulation on movie production in Thailand or taxation regulation, please contact ILCT Ltd. via email at law@ilct.co.th.

Foreign actors to be exempt from paying Personal Income Tax in Thailand Download