Tag Archive: thailand

  1. Thailand’s Import Procedures

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    All goods that are imported into Thailand must be reported to the Thai Customs Department. The steps required to import products into Thailand legally are outlined below.

    Step 1 – E-Customs system registration

    As of January 1st, 2007, the procedures for importing goods into Thailand have been centralized into the online e-Customs system. In order to register for the e-Customs system, the importer must first obtain a „digital certificate“ prior to registration. A digital certificate is an electronic signature file used to confirm the identity of the sender of electronic documents and the authenticity of said documents.

    Once a digital certificate is obtained, the importer may then proceed to register for the e-Customs system. Companies can either register with the system directly (i.e. at their own office) or through an agent. If a company decides to register through an agent, the agent will handle all aspects of the registration process. If a company decides to register to use the e-Customs system directly, the following steps must be taken:
    e-Customs software must be installed on the company’s IT system, and digital certificates must be verified;

    • the importer must register with Thai Customs at one of the following places:
      • The Registration and Customs Privileges Sub-Division;
      • Customs Procedures and Valuation Standard Bureau;
      • or the General Administration Division at each Customs office;
    • the accuracy and readiness of message exchange with the e-Customs system must be tested;
      • once tests are completed successfully, the Communication and IT Bureau will issue an e-Customs registration ID, and the process is complete.

    Step 2 – Review of controlled goods

    Two separate checks must be made before goods are imported: first, products that require an import permit (if any) must be identified. A range of goods requires import permits issued by different agencies before the date of arrival. Second, it must be ascertained if products are considered ‚red line‘ goods (as opposed to green line). Red line goods are goods found to be at high risk or requiring additional certification and verification upon arrival. When importing red line goods, it is necessary to provide the following supporting documents:

    • Bill of Lading (B/L) or Air Waybill
    • Invoice
    • Packing List
    • Import License (if required)
    • Certificates of origin
    • Other relevant documents (e.g. list of ingredients, technical standards certificates, etc.)

    There is no definitive list of red line goods. However, the e-Customs system will inform the importer once the Import Declaration has been submitted (see Step 3) whether the goods are considered red line or green line. As such, it is crucial to ensure the correct paperwork is prepared for all imports in order to be prepared for a shipment being flagged as being red line.

    Step 3 – Submission and verification of the declaration

    Once all correct documentation is prepared, an Import Declaration can be submitted to the e-Customs system together with an arrival report with the information of the vessel carrying the shipment of goods. The e-Customs system will then check and verify the submission, identify any discrepancies, and specify whether the shipment is considered green line or red line.

    Step 4 – Payment of taxes and duties

    Thai Customs Tariff Decree B.E. 2530 (1987) stipulates that „goods imported or brought into, exported, or taken out of the Kingdom shall be chargeable with and liable to duty“. Some items are exempt from import duties.

    For goods that are subject to import duties, payment can be made at either the Customs Department of the port of entry or via the e-Customs system’s e-Payment section.

    Step 5 – Inspection and release

    The final step before the imported cargo is released is the inspection of the goods. For green line goods, this is a simple online screening and will take only a few minutes. For red line goods, all the supporting documents will have to be presented, and the cargo must be physically examined by customs officials.

    If you have any question regarding the Thailand’s Import Procedures, Feel free to contact us at [email protected] or +66 (02) 117 9131 – 2. 

  2. The Thai Revenue Department joins “Tax Inspectors Without Borders” (TIWB)

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    The Thai Revenue Department has raised its standard of tax auditing by joining the Tax Inspectors Without Borders (“TIWB”) program and requesting experts to share their know-how and exchange auditing experiences with Thai Revenue Officers. The purpose of joining this project is to close tax loopholes regarding multinational e-commerce businesses and newly established businesses, and to create fairness in paying taxes.

    Mrs. Sommai Siriudomset, Spokeswoman of the Revenue Department, stated that “currently, every country is facing the problem of taxing foreign streaming or e-commerce businesses that have no permanent establishments in Thailand but are receiving income from Thailand. The Thai Revenue Department therefore applied to be part of the TIWB project, which is a project established under the cooperation between 2 international organizations, namely the Organization for Economic Co-operation and Development (“OECD”) and the United Nations Development Program (“UNDP”). The TIWB has the purpose of providing support, knowledge, and techniques to help improve the efficiency of tax auditing for developing countries and to strengthen international tax cooperation. There is a coordination of agencies in countries that are ready to send experts to share experiences or give advice to officers of the Thai Revenue Department through joint operations.

    The Spokeswoman of the Revenue Department added that “in addition to enhancing the ability of Thai tax authorities to track taxes from e-commerce businesses and new online businesses, joining the TIWB International Tax Auditor Program is also helping create fairness in tax collection between domestic operators and foreign operators providing services in Thailand.

    In early June of 2020, the TIWB appointed Dr. Ekniti Nitithanpraphas, Director-General of the Thai Revenue Department, as a member of the Governing Board of TIWB as a result of his active participation in many international meetings, he was the first Asian to be appointed to this position.

    If you have any questions regarding this matter, feel free to contact us at [email protected] or call us at +66 (0)2 117 9131-2.

  3. Thailand became a party to the Multilateral Convention on Mutual Administrative Assistance in Tax Matters (MAC)

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    Thailand became a party to the Multilateral Convention on Mutual Administrative Assistance in Tax Matters (MAC), making Thailand the 137th state to become a party to the agreement. The MAC was established jointly by the Organization for Economic Co-operation and Development (“OECD”) and the Council of Europe in 1988 to promote tax transparency, fairness in tax administration, and to prevent evasion and avoidance of transnational taxes, which is in accordance with the international cooperation framework that Thailand is a party to.

    Dr. Ekniti Nitithanpraphas, Director-General of the Revenue Department, stated that the MAC is an essential tool in helping tax authorities around the world cooperate in accordance with the framework of the OECD, the G20 group regarding Inclusive Framework on Base Erosion and Profit Shifting, which aims to prevent the migration of tax bases of multinational corporations, and the Global Forum on Transparency and Exchange of Information for Tax Purposes, which sets standards for the exchange of tax information between countries to allow the utilization of information that is exchanged under the MAC agreement by tax authorities. Thailand’s participation in the MAC agreement expands its network of parties in the exchange of tax information, from the previous 60 parties under the Double Tax Agreement (DTA) to more than 130 countries under the MAC, demonstrating Thailand’s commitment to international cooperation regarding tax matters.

    The Director-General of the Revenue Department also added that the Revenue Department is in the process of bringing the signed MAC agreement to Parliament for consideration and ratification. Exchanging information under the MAC will help the Revenue Department obtain data to analyze the tax behavior and risk of multinational entrepreneurs and help promote tax fairness, such as through e-Service laws, which will lead to the increased competitiveness of domestic entrepreneurs and an expanded tax base, which will undoubtedly be beneficial for the country.

    If you have any questions or require additional information, feel free to contact us at [email protected] or call us at +66 (0)2 117 9131-2.

  4. Thailand soon to tax foreign e-commerce and e-service operators

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    On June 9th, 2020, the Thai Cabinet approved a draft amendment to the Thai Revenue Code which would impose a value-added tax (VAT) on foreign E-service providers and E-platform operators (with no permanent establishments in Thailand) that received payments from users located in Thailand. The new VAT requirement is expected to apply to all forms of qualifying international e-service providers and e-platform operators. These include but are not limited to websites, smartphone applications, and social media. The new amendment will apply to a variety of businesses, from hotel booking sites to streaming media platforms.

    The new legislation aims to update Thailand’s tax guidelines to be in accordance with guidelines from the Organization for Economic Cooperation and Development (OECD) titled Mechanisms for the Effective Collection of VAT/GST where the supplier is not located in the jurisdiction of taxation, which has already been adopted by many countries. In addition to this, the amendment would allow Thais to see how much they spend on e-services and e-platforms provided by foreign operators.

    According to this amendment, foreign e-service providers and e-platform operators which are not located in Thailand but receive more than THB 1.8 million in any given tax year from non-VAT registrant customers or users in Thailand, and that provide paid-for services within Thailand, must register for VAT with the Thai Revenue Department. This is the same rule that already applies to Thai operators of VAT-paying businesses. VAT registration (which can be done electronically) will result in foreign operators having to remit 7% VAT on income received from non-VAT registrant customers or users in Thailand, together with VAT returns, to the Revenue Department on a monthly basis. However, unlike ordinary Thai VAT registrants, foreign e-service providers and e-platform operators must not deduct output tax from the 7% VAT payable or issue tax invoices to Thai customers. Operators of e-platforms whose members provide e-services will have to pay VAT on behalf of those members.

    The new amendment should not create any tax burdens for Thai consumers who purchase services from the offshore operators. Most Thai consumers are unaware that they must currently pay 7% VAT to the Revenue Department, and file the relevant VAT form, each time they pay foreign operators for services, on a self-assessed basis.

    The amendment to the revenue Code will be sent to be approved by the parliament before it is published in the Government Gazette, and the Revenue Department is subsequently expected to issue ministerial implementing regulations and informational guides to the public. This should provide more clarity on specific unanswered questions such as the types of exempted e-services, enforcement mechanisms, penalties for non-compliance, and other issues.

    If you have any questions, feel free to contact us at [email protected] or call us at +66 (0)2 117 9131-2.

  5. Dismissal of Employees in Thailand

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    The Thai Labor Protection Act

    In Thailand, all employers, and employees, except for the government administration and state enterprises, are governed by the Thai Labor Protection Act of 1998 (“LPA”) (amended 2019). This act regulates the basic rights of both employees and employers by defining the working hours, welfare funding, holidays, sick leave, educational leave, maternal leave, overtime, and work safety. It also contains rules on how to legally end an employment contract, and the procedures to follow in case of wrongful dismissal.

    In Thailand, an employer is entitled to terminate the employment of employees at his/her discretion and is not required by law to specify a reason for dismissal. However, if the grounds for dismissal are not specified, an employer is obligated to make payment of statutory severance pay at the rate set out by the LPA, to an employee whose employment was terminated without reason or for reasons other than those stipulated in Section 119 of the LPA.

    Dismissal without cause

    Section 118 of the Labor Protection Act states that employees who have worked for 120 days or more are entitled to receive severance pay if they are dismissed without cause. Employees who have worked for less than 120 days can be dismissed without cause and are not entitled to receive severance pay.

    Notice period

    The minimum notice period for the dismissal of employees must equal to at least 1 payment period but does not need to be longer than 3 months. However, if the employment contract provides a notice period of over 3 months, the employer must comply with such specific notice period.

    Please note that a notice of dismissal is not required if an employee is being dismissed due to the reasons stipulated in section 119 of the LPA.

     

    Severance pays

    Severance pay must be paid to the employee when he/she is dismissed without cause and is based on the duration of the employment:

    LENGTH OF SERVICESEVERANCE PAY RATE
    120 DAYS ~ < 1 YEAR30 DAYS
    1 YEAR ~ < 3 YEARS90 DAYS
    3 YEARS ~ < 6 YEARS180 DAYS
    6 YEARS ~ < 10 YEARS240 DAYS
    10 YEARS ~ < 20 YEARS300 DAYS
    > 20 YEARS400 DAYS

    Dismissal with a cause

    Section 119 of the LPA states that an employee will not be entitled to severance pay if his/her employment is terminated on the following grounds:

    • The employee performs his/her duty dishonestly or intentionally committed a criminal offence against the employer.
    • The employee willfully caused damage to the employer.
    • The employee committed negligent acts which caused serious damage to the employer.
    • The employee violated work rules, regulations or orders of the employer which are 
    • The employee was absent from duty without justifiable reason for three consecutive working days regardless of whether there is a holiday in between.
    • The employee was sentenced to imprisonment by a final court judgment. If the imprisonment is for offences committed by negligence or a petty offense, it shall be an offense that causes damage to the employer.

    Wrongful dismissal

    Wrongful dismissal refers to a situation where an employer has terminated or laid off an employee in a manner that violates the employee’s rights under the LPA. Violation of the LPA may result in the employer receiving a fine of between 5,000 and 200,000 THB and/or imprisonment of up to one year.

    Section 49 of the Labor Court Establishment and Dispute Procedure Act B.E. 2522 (1979) states that in the dismissal case, if the Labor Court thinks the dismissal is unfair, it shall order the employer to reinstate the employee at the same level of wage at the time of dismissal. However, if the labor court thinks that such employee and employer cannot work together, it shall fix the amount of compensation to be paid by the employer which the Labor Court shall take into consideration the age of the employee, the working period of the employee, the employee’s hardship when dismissed, the cause of dismissal and the compensation the employee is entitled to receive. Cases of wrongful dismissal include:

    • Immediate dismissal without a clear and full explanation of the reason or the termination of the agreement without serious cause nor severance pay.
    • The termination of the agreement without payment of the unused annual leave.
    • The termination of the agreement based on the (claimed) violation of the work regulations by the employee without any prior warning.

    Due to the fact that section 49 of the Labor Court Establishment and Dispute Procedure Act B.E. 2522 does not provide a clear definition, or conditions for wrongful dismissal, it is the discretion of the Court to decide whether or not such dismissal is a lawful, and the amount of compensation to be awarded to the employee in case of a wrongful dismissal.  

    Conclusion

    In conclusion, the LPA regulates the basic rights and duties of employees and employers in Thailand. All employers and employees, except for the government administration and state enterprises, are governed by the LPA. Violation of the LPA either by wrongful dismissal or any other violations may result in the employer having to compensate the employee, receiving a fine of between 5,000 and 200,000 THB and/or imprisonment of up to one year.

    If an employee has worked for an uninterrupted period of over 120 days, and he/she was dismissed without cause, he/she is entitled to statutory severance pay of from 30 days‘ wages to 400 days‘ wages. If the employee was dismissed due to causes specified under section 119 of the LPA, the employer is not required to provide advance notice of dismissal, and he/she is not entitled to receive severance pay.

    The notice period for the dismissal of an employee is at least 1 payment period but does not need to be longer than 3 months unless otherwise stated in the employment contract.

    If an employee feels that he/she was a wrongfully dismissed, he/she may file a case with the Labor Court, but according to section 49 of the Labor Court Establishment and Dispute Procedure Act B.E. 2522, whether or not the dismissal was unlawful, and the amount of compensation the employee is entitled to depends on the sole discretion of the Court.

    If you have any questions regarding these Dismissal of Employees in Thailand, feel free to contact us at [email protected], or call us at +66 (0)2 117 9131-2.

  6. Bank of Thailand relaxes rules on Foreign Exchange Transactions

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    As the Thai Baht is under pressure due to imbalanced capital flows, thus unusually strong in comparison to foreign currencies, the Ministry of Finance (MOF) and the Bank of Thailand (BOT) decided to loosen rules to facilitate capital outflows. MOF and BOT expect these measures will lessen pressure on the Thai Baht. These regulations are effective since November 8th, 2019 and include facilitations on:

    • Repatriation of export proceeds;
    • Investment in foreign securities;
    • Outward transfers, and
    • Settlement of gold trading in foreign currency.

    From a practical perspective it is particularly interesting that the threshold, based on which additional verification and documentation need to be provided to commercial banks when outward transfers are conducted, has been increased. This threshold was increased from 50.000 USD to now 200.000 USD. This relaxation of the regulation is aiming to facilitate foreign exchange transactions by reducing the burden of providing documentation. As a consequence, outward transfers – especially for companies and businessmen – will now be swifter and easier to handle.

    If you have any questions regarding this topic, feel free to ask at [email protected].

  7. How to Import a Boat to Thailand

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    When importing a boat from oversea to Thailand – even if it is solely for personal use and not for running a business – it is necessary to register the boat at the Marine Department in charge. Which department is in charge is determined by the mooring of the boat. To complete the registration process, the following documents are required:

    1. Boat sale agreement;
    2. Receipt of paying import taxes at the Customs Department;
    3. Supporting documentation to certify domicile in Thailand by going to the immigration office that is in the province that the boat is located (certification of the Thai visa at the Immigration Office); and
    4. Translations of all documents in English into Thai.

    In case a pre-owned boat is imported, additional documents are required as follows:

    1. Boat registration document from abroad;
    2. Certificate of the cancellation of the boat registration abroad.

    If the boat is neither registered as a Thai boat nor is operated under the Thai flag, the boat can remain in Thailand only for a limited time. The boat has to be brought out of Thailand after the permitted time has expired, thus if the boat shall be operated in Thailand without time restriction, it must be registered as a Thai boat.

    There is no limitation regarding the number of boats which can be registered under the same person. However, the applicant for the boat registration must be the same person as the importer and the person on the purchase agreement. If the names differ, the registration cannot be done. Therefore, it is recommendable to complete the registration at the Marine Department under the buyer’s name as a first step, after the boat is imported. After the registration is completed, the transfer of the boat should go smoothly.

    Please note: a boat registration for a foreign individual is possible, but a foreign company is not permitted to register a boat under its name. If a company wants to register a boat under its name, at least 70% of the shares have to be held by Thai nationals.

    If there are any questions regarding the import of a boat to Thailand, feel free to contact us at [email protected].

  8. Can foundations own land in Thailand?

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    As many foundations operate schools, or orphanages the possibility to own land is one of the key questions for them.

    Under certain circumstances, a foundation may own property in Thailand. However, if a foundation has objectives that focus particularly or mainly on the benefit of foreigners, it may be deemed to be a foreign entity and may not own land in Thailand, referring to the Land Code, section 94 (4).

    Can foundations own land in Thailand?

     

    When reviewing the application for a transfer of ownership of land from a third party to a foundation, the Land Office will check the objectives and articles of association of the foundation, as well as interview the board of directors of the foundation. If it is found that the objectives are for foreigners, children that do not have Thai nationality, or have the purpose specifically for the benefits of foreigners, the transfer of ownership will not be allowed to the foundation.

     Furthermore, the foundation should be established, especially for public charity, religious, art, scientific, educational, or another purpose for the public benefit and not for sharing profit. The property of a foundation must be managed to serve the objectives of the foundation, and not for the benefit of a third person.

     

    If there are any questions regarding this matter, feel free to ask at [email protected].

  9. The Sap-Ing-Sith – Is Thailand’s New Property Right a Game Changer?

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    The Thai Land Code stipulates that – apart from a few exemptions – foreigners are not permitted to own land in Thailand. Many foreigners seeking to buy immovable property in Thailand, therefore, chose legal structures like leasehold, usufruct, or ownership of the property by a Thai company, to mitigate the restrictions. However, these legal structures have weaknesses and, if not set up properly, may even involve legal risks. To encourage foreigners to invest in property in Thailand, the Thai National Legislative Assembly on February 8th, 2019, passed the Sap-Ing-Sith Act. The Sap-Ing-Sith Act was published in the Royal Gazette on April 26th, 2019 and will come into effect on October 27th, 2019. The new law is aiming to encourage foreigners to invest in immovable property to boost the economy in Thailand. Requirements, as well as the rights and obligations of the Sap-Ing-Sith, are as follows:

    Definition of Sap-Ing-Sith

    The Sap-Ing-Sith grants its holder the right to use an immovable property and can be established on land with a valid Chanote (Land title deed), buildings placed on land plots held under a valid Chanote and condominium units as defined in the Condominium Act. It is possible to register a Sap-Ing-Sith for a period of up to 30 years. The Sap-Ing-Sith has to be made in writing and registered at the competent land office.

    Registration of a Sap-Ing-Sith

    After the parties reached an agreement, the registration of the Sap-Ing-Sith at the Land Department takes place in two stages; first, the Property-Owner has to register a Sap-Ing-Sith for the property. After registration of the Sap-Ing-Sith, the transfer to the other party has to be registered. The registration fee is 20,000 THB. If the land plot where Sap-Ing-Sith should be registered is subject to a mortgage, consent from the mortgage holder is required. After registration, the Sap-Ing-Sith holder will receive a certificate of the Sap-Ing-Sith from the Land Office, which he can use to prove his right. The Land Office will also keep a copy of this certificate.

    Rights and duties in relation to the Sap-Ing-Sith

    There are several rights and obligations in relation to the Sap-Ing-Sith, which are surpassing the rights of a standard leasehold. The most significant rights and duties are shown as follows:

    Rights of the Sap-Ing-Sith holder:

    • Use the property as shown on the details of the certificate issued by the land office;
    • Transfer the Sap-Ing-Sith to a third party without the owner’s consent;
    • Use the Sap-Ing-Sith as security for a mortgage (not registered);
    • The Sap-Ing-Sith is inheritable under statutory inheritance law; and
    • Make alterations/additions to the property without the owner’s consent.

    Duties of the Sap-Ing-Sith holder:

    • Has to return the property in an „as is“ condition at the end of the period unless otherwise agreed; and
    • Liable for the property like an owner. Exception: the right to follow and recover the property from a third party that is not entitled to possess the land, and the right to prevent unlawful interferences from the property.

    Rights of the Property-owner:

    • To transfer the ownership;
    • Use the property as security for a mortgage; and
    • Use the property security according to the Business Collateral Act B.E. 2558.

    The execution of all rights mentioned above requires written consent by the Sap-Ing-Sith holder.

    Obligations of the Property-owner:

    • Can’t create other rights on a property with a Sap-Ing-Sith without consent from the Sap-Ing-Sith Holder;
    • Can’t terminate the Sap-Ing-Sith before the expiration period if a right of a third party is affected. 

    Summary:

    As foreigners will be permitted to hold a Sap-Ing-Sith, it might become an interesting alternative to other legal structures that allow foreigners to possess land in Thailand. Also, when keeping in mind the advantages of the Sap-Ing-Sith, like the possibility to mortgage it, and the right to sell the Sap-Ing-Sith without consent of the owner, there are many scenarios where a Sap-Ing-Sith can be very useful. The Sap-Ing-Sith is not a game-changer, as the maximum period is still 30 years and thus the same duration as a normal leasehold. And most other rights that the Sap-Ing-Sith grants could also be granted with a standard leasehold agreement. But still, the Sap-Ing-Sith Act shows the ongoing liberalization of the Thai property market, which will certainly be welcomed by foreign investors. We expect that most foreign property buyers will likely prefer the new Sap-Ing-Sith over the traditional registered lease.

    We will monitor the impact of the Sap-Ing-Sith on the Thai property market when it comes into effect and will keep you updated. If you have any questions regarding this matter, feel free to contact us at [email protected].

  10. Specialized Appeal Court in Thailand

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    In 2015, the Court of Appeal for Specialized Cases was authorized by the Establishment of the Court of Appeal for Specialized Cases Act B.E. 2558 to try and decide cases appealed from specialized courts. The adjudication process involves a forum of judges with specific knowledge and expertise in each area and will create uniformity in the appellate adjudication.

    It must be noted that cases in which a judgment was rendered before shall follow the appeal procedure of the previously applicable law. On the contrary, cases where the appeal has been submitted, shall proceed in trial and adjudication. Regarding dispute over jurisdiction, the President of the Court of Appeal for Specialized Cases shall issue a ruling and it is considered final.

    The Court of Appeal for Specialized Cases has five divisions: Intellectual Property and International Case Division, Tax Case Division, Labor Case Division, Bankruptcy Case Division, and Juvenile and Family Case Division.

    Intellectual Property and International Case Division

    This division has the purpose of adjudicating cases that are submitted for an appellate review of a judgment rendered by the Central Intellectual Property and International Trade Court under the adjudication of judges with specific knowledge and insight in the field. Additionally, this division is empowered to decide civil and criminal cases regarding intellectual property and international trade. The types of cases include civil and criminal cases concerning trademarks, copyrights, and patents.

    Tax Case Division

    The Tax Case division is mostly about disputes between the public and private sector regarding the assessment or collection of tax and revenue by public officers. The forum of judges then consists of those that have specific knowledge and insight on tax problems. The types of cases that are filed to the Court are appeals against any decision of any competent officer, claims by the state over tax and revenue debt, or tax refunds.

    Labor Case Division

    Cases in this division are about disputes between employers and employees, for example regarding employment agreements, or rights of employers and employees under the labor protection law and labor relations law. This also includes an appeal against a decision of the competent official under the law of labor protection and cases arising from wrongful acts between employers and employees. Therefore, this division is authorized to decide over the appeal of cases on labor law.

    Bankruptcy Case Division

    The Bankruptcy Case division is authorized to adjudicate bankruptcy cases according to the law on bankruptcy. This division can also decide over appeals of civil cases and criminal cases under the bankruptcy law.

    Juvenile and Family Case Division

    This division is empowered to review the appeal of a judgment or order by the juvenile and family court by applying the provision of the Civil Procedure Code or the Criminal Procedure Code. However, appeals are prohibited when the judgment is concerning a child over ten years but not over fifteen years of age, or the change of criminal punishments into lenient punishments for minors.

    Cases that are filed to the division concerning criminal offences committed by a minor, cases that are transferred by the Court having jurisdiction over the case, family law, well-being protection cases, or cases that a minor shall be tried before a juvenile and family court.

    If you have any questions regarding this matter, feel free to contact us at [email protected]