Sunbelt Asia

The steps for applying for a BOI Visa and work permit are:

1. Opening of the post

2. Finding the potential foreign employee

The title, qualifications of the employee, and job description must be convincing enough to show that it is necessary and relevant for the company to hire the foreign employee. The approval would rely heavily on the qualifications of the applicant and whether the applicant and the position match.

Whether or not the applicant was the appropriate person for the post would be at the discretion of the officer and a letter from the President may help but would not necessarily guarantee success.

[sunbelt][/sunbelt]

Media is restricted to 100% Thai national ownership only. The Foreign Business Act of 1999 divides industries restricted to foreigners into three lists: List One businesses are restricted for "special reasons" and include media, fishery, forestry, rice farming and Thai land trading.

[sunbelt][/sunbelt]

After consulting with the Ministry of Labor today, the official there told our lawyers that if an employee refuses to sign a new contract it is not seen as voluntary resignation and severance pay will be due since it is the employer who arranges the employment agreement. A decision by the employer to not renew the new contract would also require severance.

[sunbelt][/sunbelt]

It is recommended that you do open a company in Thailand with your wife as a major shareholder and as Director so that you can apply for a TAT license and then an e-commerce site. If you were to run your business from Belgium but take payments and do business in Thailand without such a company set up you may run into problems in the future and be considered to be violating the Labor Act. Additionally, many hotels may require your business to be recognized by the Thai government before they will do business with you.

Since you wish to work in Thailand in the future, it is best that you establish a Thai limited company so that you can obtain a work permit further down the line. Your wife, as director of the company would apply for the TAT license and then the e-commerce license.

Hotels and accommodation aren't our specialty but once you start working with the TAT they may be able to help you with hotel contacts. Alternatively, we also have a department at Sunbelt Asia that charges a 5,000 Baht a day professional fee and can research anything you like. info (at) sunbeltasia.com

[sunbelt][/sunbelt]

One thing to consider is that the man at the amphur would not register your wife's business as a sole proprietor because it IS exempt and there is no need to register a sole proprietorship that is exempt. And, without knowing what he had to say, perhaps that is why he asked your wife to register a limited company or partnership since that would need to be registered but your wife's sole proprietorship does not. She is able to own the business with zero registration as an individual in this sector.

As for taxes, income derived from business, commerce, agriculture, industry, transport, or any other activities not specified in contract work can take actual expense deductions or 65% - 85% deduction (no need to show expenses) depending on the types of income. Income from liberal professions can take 30% deduction except for the medical profession where 60% is allowed.

[sunbelt][/sunbelt]

The following activities require commercial registration at the District Office as a sole proprietor:

1. Rice mills, sawmill (with machineries)

2. Retail business

3. Agent or representative

4. Hand craft or industrial products

5. Transportation businesses / real estate business / currency exchange

6. Producing compact discs or films

7. Gems and jewellery

8. Retailing through internet (e-commerce)

9. Computer services for internet usage (internet cafe)

10. Karaoke business

11. Services in providing computer games

12. Juke box renting

13. Factory that provide carving services (e.g. carving of elephant tusks, retail or wholesale product made from elephant tusks

Businesses not mentioned in the list do not require commercial registration. However, it may be that the Commerce Ministry official considers it to fall under the e-commerce banner.

While non-competition clauses are not illegal, in general the courts will not enforce them unless three qualifications are considered:

1) the employer has a proprietary interest it is entitled to protect;

2) if the clause is contrary to public interest; and

3) if the terms of the clause are reasonable. Reasonableness is determined by the length of restriction (in general Courts have rules no more than 2 years) and area defined, ie Bangkok.

Non compete clauses are usually used to protect the proprietary interest of the employer and to prevent former employees from disclosing proprietary information to their competitors.The courts have recognized this fact and, based on previous Supreme Court decisions that have tended to not rule non-competition clauses automatically invalid, but have determined the reasonableness of the restriction carefully and determine fairness for both employer and employee.

If the employer were to take you to court over this matter, there is no automatic guarantee that either of you would win, the courts would determine the reasonableness of the contract and its effects on both you and the employer.

[sunbelt][/sunbelt]

Unfortunately List 3 of restricted occupations has the catch-all rule:

(21) Other categories of service business except that prescribed in the ministerial regulation

This is generally applied to most foreign owned businesses when other restrictions do not apply.

Foreigners generally cannot obtain a sole proprietorship, unless under the Amity Treaty, and most Labor Offices will not issue a work permit for a sole proprietorship, even if one owned by your wife.

Before taking any further steps to establish this kind of business you need to check with your local Labor office to determine if you can obtain a work permit first. Bangkok, for instance, will not issue a work permit for a sole proprietorship and reports are that many provincial offices will not either.

If not, then you will need to set up a Limited company with three shareholders, the majority of which must be Thai. There are basic steps to follow, including 1 million Baht in capitalization (since your wife is Thai) and social security paid on 2 Thai employees the first year and 4 the second year. Shares can be issued in such a way that you receive preferential shares giving you voting power over the Thai majority shareholders.

[sunbelt][/sunbelt]

It appears there was some confusion regarding the member's extension of stay. The member wanted to apply for a one year extension of stay shortly before it expired but due to the long holiday weekend, it could not be processed in time. He was advised to leave the country and obtain another 90 days.

Immigration will generally not issue the one year extension on a new 90 day entry as that 30 day stamp will cancel out the new 90 day visa. So, it is better to apply after about 2 months so that the expiry date of the 90 days is closer.

This is what our staff tried to explain, that once the member left the country and obtained a new 90 day stamp in his passport, he needed to wait and come back to Sunbelt Asia in about 2 months. From there, we can start the document certification and get the extension applied for. Once the extension is applied for a 30 days "under consideration" stamp permit is given.

Staff explained that if he needed to travel while the extension is "under consideration" during that 30 days he would need to get a re-entry permit so that the extension and visa are not lost. A single re-entry permit for 1000 Baht or multiple re-entry for 3000 Baht is valid for ONLY the 30 days under consideration. The reentry is on the 30 day permit as the 90 day has already been cancelled.

The staff further explained that once the extension is obtained, if the member planned to travel, he would need to get another re-entry permit (its easiest to do it the day you receive your extension, just hand your passport back in with the required photos and forms after the extension is stamped in your passport).

The member was told that Sunbelt Asia had another client who did not show up at the Immigration office on the 30 day due date and he had to pay an overstay fine of 500 Baht a day as the 90 day visa had been cancelled, so they wanted to make it clear to the client the importance of returning to Immigration. They then further explained the importance of a re-entry permit. He was told that if he left on a 30 day "under consideration" stamp without a re-entry permit, he would lose his visa and have to apply for a new one outside the country.

That would be a client rule he is bound by.

[sunbelt][/sunbelt]

Sunbelt Asia does do FDA applications for clients However finding a laboratory and office is more a real estate need with a broker to help you find the best location.

I would suggest that you contact our brokers at www.bangkokcondosonine.com 02-642-0213 to see what they can help you find.

[sunbelt][/sunbelt]

Registered capital can be as low as 3 shares at 5 baht a share for a total of 15 baht, but it is better to have it in the 100,000 Baht range.

[sunbelt][/sunbelt]

Carnet information can be found here:

http://www.customs.go.th/Customs-Eng/ATACarnet/ATACarnet.jsp

However, equipment that is not legally approved for use in Thailand cannot be used in Thailand and would not be allowed in.

[sunbelt][/sunbelt]

If you can get an extension of stay based on your work depends on several factors. However, the reason you were told is nonsense. (You can't even get a visa in Thaland). With a valid non-B you can ask for an extension of stay for 1 year during the last 30 days of any 90 day entry. You will need a work permit, but depending on your job you might also need a minimum salary and the company itself need to show tax documents over the last 2 years.

Mario that was exactly my belief until yesterday, but I am dealing with sunbelt so I presume they know what they are talking about.

Without knowing the case, I can only surmise but can come up with this scenario:

The member is married to a Thai national and his company has been open less then two years. He cannot get an extension of stay based on business as he does not meet all the criteria required.

He can, however, meet the criteria of extension of stay based on marriage to a Thai national. They need to convert the non 'b" to a non "O' and then apply for the extension of stay based on marriage to a Thai national by showing with the income option:1. A copy of work permit 2. Personal Corporation income Tax (PND.1) in latest 3 months and personal income tax for previous year with receipt.

Please send a Personal Message to Sunbelt Asia with your name, email address and who you spoke to and the MD will look into it and advise you on your particular case.

[sunbelt][/sunbelt]

Yes, a letter from the first employer on company letterhead and signed by the owner or Managing Director giving permission is required. Since both companies are agreeable, this should not be an issue to obtain.

Yes it is possible to have two work permits in one book. The initial employer will apply for the work permit and obtain the booklet. Then, you can add the second employer for a fee of 3,000 Baht at the Labor Office where the first work permit was issued. You will still need all the same documentation that you required for the first work permit.

[sunbelt][/sunbelt]

Foreigners and foreign owned companies are allowed to own buildings, including factories outright and can do so almost everywhere in Thailand. There are a few exceptions as foreigners and foreign owned companies cannot manufacture things like weapons.

Unless the company BOI registered and, in most cases, you operate in a industrial estate, you are not allowed to own the land the building is on. You can enter into a 30 year lease agreement with the owner of the land and registered at the Land Department.

[sunbelt][/sunbelt]

A minor person can be a shareholder in a company but they cannot be appointed as “Managing Director” of the company until they reach the age of majority at the age of 20. It is unlikely a finance company will give a 16 year old girl financing as she most likely she won't qualify in terms of how long she has had a job or income over a period of time.

Sunbelt Asia doesn't really recommend that people look for ways to circumvent the laws.

[sunbelt][/sunbelt]

The first thing you need to clarify is whether or not you established bylaws or a partnership agreement when you established the partnership/company. If so, then all of these issues should be covered by that agreement, rules to which you are both bound.

Whenever setting up a business it is always best to do it in a professional business manner rather than rely on friendship to keep things professional. However, if you did not create a partnership agreement or establish bylaws when establishing the company then you may have to rely on what is called "Russian roulette" in order to sell your shares. You will both need to agree that this is an acceptable method to terminating the relationship however.

Russian roulette works this way: Shareholder A makes an offer to buy shareholder B’s shares. If B is not prepared to sell at that price, A is obligated to sell his/her own shares to B at the same price. This is designed to ensure that the original offer by A is a fair one.

This will work if both parties want a simple and effective means of getting the situation resolved fairly. Hiring a business mediator to work the problems out may be your best solution provided you both agree ot abide by the results of the mediation and are both willing to work to resolve the situation.

One of the most important things when establishing a business, either a company or partnership, is to establish ground rules beforehand. Setting up a partnership agreement that details what to do when certain things occur is key to avoiding these kinds of circumstances happening.

There are many things that can cause disputes such as:

* Misunderstandings about exactly what each person is required to do.

* This is compounded by the failure of some to “pull their weight”.

* Failure to discuss the ‘what ifs’ in the beginning.

* Different expectations of different shareholders.

* Excessive remuneration paid to executives who are shareholders.

* As a result, profits available to the other shareholders are reduced.

* Limited access to information about the company’s affairs.

* Minority shareholders end up with their shareholding being diluted.

* Minority shareholders get ‘locked in’ indefinitely, without an exit opportunity.

* Minority shareholders have no involvement in important decisions.

* The majority manage the company poorly.

* The minority have no power to change the management.

* Some of the shareholders get involved in a competing business.

* Deadlocks occur without any deadlock breaking clause.

It’s also worth considering what issues might be unique to your circumstances. And then establish means to mediate these issues in the agreement that everyone must sign before establishing the business.

Sunbelt Asia always recommends to their customers to consider these issues and any others that may arise after the business opens and establish means and methods of dealing with them prior to opening the business so that deadlocks such as yours do not occur.

[sunbelt][/sunbelt]

An internet based business would be set up the same way as a brick and mortar business. However, you would need an e-commerce license in order to take online payments.

You would need to set up a Thai ltd company with three shareholders. The business would need to be Thai majority owned (51%) but you could establish preferred shares that allow you maintain control. Another way to have majority ownership is with BOI and then the requirement of Thai employee ratio per foreigner is lower. Boi is most liberal with internet solution companies on applications. The other is by Amity treaty if you are an American.

The Limited Company would require 2 million Baht in capitalization and pay the social security for 4 Thai employees, although often the officer will allow 2 in the first year, in order to obtain a work permit. If your spouse is Thai then 1 million Baht in capitalization is enough to start. Additionally, if you wish to obtain a work permit then the company will need to have registered their premises in an actual office with a designated working area. The limited company would be audited and pay taxes twice a year, and would need a VAT license.

There are quite a few steps to setting up a business in Thailand but this will give you an overview of the basics.

Sunbelt Asia has extensive experience setting up small businesses for expats and are happy to provide the initial consultation for free.

[sunbelt][/sunbelt]

Every Thai has the same rights and being handicapped does not disqualify her rights to acquiring property. Since she is able to read and understand there would be no reason for her to be disqualified from owning land. If she was assigned a legal guardian during her minority then any guardianship would end upon reaching the age of majority.

You need to find out for certain what legal procedure was done at the age of 14 before moving ahead, but if it was a simple guardianship then it is no longer relevant and there should be no cause for her to not acquire land.

[sunbelt][/sunbelt]

Generally, in the first year you can have two Thai employees, you must pay social security tax on both. By the second year, 4 Thai employees per work permit will be necessary. Capitalization of 2 million baht can be either in cash or assets (1 million if married to a Thai national). A minimum of 25% of the value of each subscribed share must be paid.

You must have 3 shareholders to form a Limited company and maintain 3 shareholders at all times . A company must be registered with a valid corporate address. In most cases it is not possible to register in a condominium or home; it must be a commercial address.

Sunbelt Asia has extensive experience setting up companies and obtaining work permits for people in Thailand, please feel free to give us a call for a free consultation at 02-642-0213. http://www.sunbeltlegaladvisors.com/contact.php

[sunbelt][/sunbelt]

Sunbelt Asia does Amity treaty companies on a regular basis. As you can see by the links below, information is on the US government export information site as well as on the BOI site.

http://www.export.gov/thailand/treatyofamity/index.asp

http://www.boi.go.th/thai/how/legal_issues_for_roreign_investors.asp

Americans are still able to open businesses under the Amity Treaty.

[sunbelt][/sunbelt]

Teachers are exempt from the minimum wage requirement but the educational institute must hold a license from the Ministry of Education and confirmation and a request made by the educational institute to Immigration.

[sunbelt][/sunbelt]

You can be the sole director of a Limited Company but regardless of which route you take, 3 shareholders is required. However, the number of shares each shareholder holds can be as low as one.

The following can be used if you wish to be the majority shareholder however.

1. You could apply under the Board of Investment (BOI) but your business must match with those eligible BOI Business Activities:

http://www.boi.go.th/english/about/eligible_activities.asp

2. You could apply for an Alien Business License, but the official must be able to see that your business is a great benefit for Thai market/labor force and approval by the Director General is required.

3. If you were an American citizen you could be the majority shareholder under the Amity Treaty.

The easiest alternative is to open a Limited Company of which, Thai partners must own more then 51%. You can be the sole Director of this company but, if you will be conducting business in Thailand and signing documents related to the company in Thailand you will need to obtain a work permit. You can establish the business as such that even as a minority shareholder, you are allowed more voting rights than other shareholders.

To open a Thai Limited Company you must have three Promoters (which will also become shareholders once the company is established). The Ltd Company must file a memorandum of association, convene a statutory meeting, register the company with the government, and obtain a company income tax identity number/card. They are also required to follow accounting procedures as laid out in the Revenue Department and Department of Business Development (Ministry of Commerce). Companies are required to withhold income tax from all regular employees as well as to withhold income tax from services consumed.

A physical address is needed, generally a house or condo is not allowed. Capitalization fees are 500 baht per 100,000 baht of capital. If your wife is Thai the registered capital needs to be at least one million, otherwise 2 million Baht. You will need to pay in at least 25% of your registered capital within 90 days of registering your company either by cash, assets inventory or equipment. To pay up your registered capital by assets you would be required to transfer the designated assets into the company’s name (once the company is registered). You will need a company seal.

In order to obtain a work permit you will need at least two Thai employees the first year (the 4 Thai employee rule per work permit is often relaxed, but its best to check first) and four Thai employees in the second year. The usual required paid-up registered capital must be 2 Million Baht for 1 work permit. Marriage to a Thai spouse can be advantageous in reducing the required paid-up registered capital from 2 Million to 1 Million baht for 1 work permit as well as reducing the number of Thai employees to two in the first year.

You should consider talking to a lawyer before starting this procedure, Sunbelt Asia has extensive experience setting up Limited Companies.