Sumitr Man

Is it legal for a company to buy a house as an investment not related to its chartered purpose and then give the Managing Director the right to live in it as part of his compensation package?

I see nothing wrong with this, as long as the tax implications for Company and Managing Director are considered by the Company Accountant.

On this note, one area that is often overlooked is the Transfer Pricing Regulation No. Paw. 113/2545 (dated May 16, 2003). In short, the TPR determines what is considered an "acceptable" charge for services performed between "related" parties. As such, to avoid the TPR, as director of the company and rentor of the propert, to be safe you need to have an estate agent provide you with a market rental rate for the property.

SM

The 3rd. is one of the wonders of living in Thailand. It is indeed a Government holiday, but not a Bank Holiday. As such, all Government offices will be closed, but all commercial banks will be open.

Consquently it is not a holiday for my office, where you need to have the combined Government and Bank Holiday to warrant a day off, but may well be a holiday for large numbers of others.

SM

DM:

I don't normally query your posts, but I don't see how the above fits in with:

Thailand’s Nationality Act B.E. 2508

Section 9. An alien woman who marries a person of Thai nationality shall, if she desires to acquire Thai nationality, file an application with the competent official according to the form and in the manner prescribed in the Ministerial Regulations.

The granting or refusal of permission for acquisition of Thai nationality shall lie with the discretion of the Minister.

Are you saying the Minster will unlikely grant permission with the requirements in your post, or is it that the Ministerial Regulations specify such?

Cheers

SM

^ now you're just getting personal Heng

If I remember rightly, as a non-US citizen, what they'll likely tell you to do is establish a company in somehwere like Delaware (sp?) and use the company account.

SM

Bryan:

Do a search on Section 93 of the Land Code, you'll find it in there

I could be wrong, but isn't it 10% if a DTT exists?

SM

What kind of contract are you on. In particular, is the contract for 2 years or less?

SM

This is also a good link on "how to do business in Thailand"

http://www.boi.go.th/english/how/company_establishing.asp

Board of Invesment.

Suggest you take a look around and then come back with any more specific queries you may have.

SM

thaigene2 :

That's a shame. I don't usually deal with condos; but I had heard that provided you had a work permit and could evidence your Baht account money was from income earnt in Thailand (on which you have duly paid tax), this would suffice for para 5.

As I say though, not my field and only what I had heard (over a beer )

SM

I think it depends on the nature of the legal document/obligation, etc.

S. 19 of the Civil and Commercial Code (CCC) says that a person reaches maturity on completion of 20 years of age.

S. 20 says a person reaches maturity upon marriage, provided the marriage is in accordance with S. 1448.

S. 21 of the CCC says all acts done by a minor without the consent of their guardian are void, unless otherwise provided for by law.

Under S. 25 of the CCC, a person can make a will at 15.

To be on the safe-side, I would say 20, unless you either have the consent of the guardian as well or you have evidence they have registered their marriage at the Amphur.

SM

Some Fast Facts (correct if you are SURE you're right):

2. The Bank of Thailand (BOT - the central bank) require 100% of condo price to be paid by importing the money from abroad in a foreign currency. So the branch of Bangkok Bank in Singapore can effect this by lending you Sing or US dollars from down there. Money comes into Thailand, BOT's rules are met and the Land Registry gets its Tor Tor 3 form (it's called someting else now, but same same).

<{POST_SNAPBACK}>

I don't think this is correct. While I would agree that in most cases foreigners buying condos in Thailand will need to bring money in, I think the current law states:

"(5) Aliens or juristic persons regarded by law as an alien who bring in foreign currency into the Kingdom or withdraw money from the Baht account of a non-resident or withdraw money from a foreign currency account."

Source: Apartment Building Act (No.3) B.E. 2542 (1999), as published in Ministerial Information Bulletin No. 9060 as of 21st June 1999.

Section 540 Civil and Commercial Code

The duration of a hire of immovable property* cannot exceed 30 years.  If it is made for a longer period, such period is to be reduced to 30 years.

The aforesaid period may be renewed, but it must not exceed 30 years from the time of renewal.

*Section 139 of the Civil and Commercial Code

Immovable property denotes land and things fixed permanently to land forming a body therewith.  It includes rights connected with land or things fixed to or forming a body with land.

2 things in this thread interest me:

1-

Section 540 of the CCC is where the 30 year limitation rule comes in. Para. 2 of such section states clearly that the period may be renewed. The Supreme Court has upheld that provided that this is against the granter, it is enforceable. For this reason, a company granting a 30 year lease with an option to renew is seen as more attractive than an individual - as the former is more likely (though not always the case) to still be here.

This is different to the 30+30+30 lease. In this case the Revenue Court held that rents paid could only be amortized over the 60 years, not the 90. To the best of my knowldge, there is no Supreme Court ruling that the 90 year lease is either lawful or unlawful; hence the reliance on the Revenue Court obiter dictum.

2 -

Thailand is a civil law system. As such, no court ruling can bind another court. This is so, regardless of what court you are in - court of first instance, appeal court or supreme court (or IT court of Bankruptcy Court, etc.). Each court ruling stands by its own merits, but a case may be appealed if grounds (in that case) exist.

I was led to belive that the company route was standard practice for falangs in thailand I know of many people that have done the same thing for many years with no problems.

thanks for your help

<{POST_SNAPBACK}>

The company route is standard practice for hundreds, if not thousands, of foreigners in Thailand. You just need to be aware, if your company is not trading, and your return accounts each year show nothing, it could (not saying it would) bring to the attention the fact that it is a front company.

Now, if you could do some trading through the company, even minimal trading of a couple hundred thousand baht a year, you would be in a lot better position.

^don't want to rain on your parade mate, but as far as land ownership is concerned, no they [uS nationals/companies] don't (have different laws that apparently apply).

SM

^ I'm at a loss... you leased the land and now want to buy it?

There's two caveats with buying a house/land through a company.

The first is that your 62% Thai shareholders actually have to be able to prove they put up 62% of the capital in the company.

Anyone who knows me well will vouch for the fact that I do not hold with the company structure - I believe it contravenes Section 150 of the CCC and, thus, can be deemed invalid at any time. But, that is my opinion, and other have their own.

The above, frankly, is clearly wrong. There is nothing against Thai law with having a shareholder loan structure. Indeed, if the above were to be carried through, a lot of businesses in Thailand would be looking over their shoulders.

If not they might be considered illegal nominees, used to circomvent Foreign land ownership laws, by the Thai courts and as such all the company might be declared void (and illegal) resulting in you possibly losing your house.

It is time people woke up and realized that nominee structures were used in a lot more businesses that acquisition of land. The fact is that it is a risk. Excuses me, not a risk, but a huge risk. But, then again, so is owning 26% of an insurance company. Analysis the risk and determine if it is of value to you

The second is that slowly the Tax offices nation wide are trying to weed out "sleeping" company's. This means company's that don't do any actual trading and just pay the minimal tax to stay alive. (this would be the yearly 12000 Baht "barstool lawyer" company!)

Two-prong attack here. Under the MoC rules, you can default on [accounting] returns for 4 years. But, you are right, as it likes to be known, the Large Tax Office (sounds overweight – doesn’t it), has certainly got its act together over the last 24 months and will continue to do so – it is certainly a risk.

A good lawyer should provide you with acceptable share holders (meaning people who in case of problems can show the financial means to invest in your company), and he should have set up your company in a way it is actually trading, with the house/land included as part of the business plan of the company (e.g. the company was set up to buy real estate to be rented out later to generate income)

Sorry, on this point you are 100% wrong.

Ignore all of my above comments: NEVER, NEVER. NEVER, trust a shareholding structure where you lawyer is a shareholder, or company signatory. Why the [insert very bad word] do you think Taksin put it in the name of his driver. You put anything in the name of 62% shareholding, and I’ll show you a way to beat the system.

Worthless, info…?

As I understand it, one important question that has not been asked on this thread is whether or not:

(1) the mother is still alive;

(2) the appliant has evidence of his Thai hertiage (in the event that 1 is not an option);

(3) s/he has relatives willing to provide affivadits as to his/her rights (in the case 1 & 2 are not an opition).

From my reading, which is minimal, you cannot just walk into an embassy and say "hi guys, I'm half Thai and can you please give me a passport."

But I could well be wrong...

SM

EDIT: I would strongly suggest you get Lopburi's input on this before you run off skipping and dancing thinking all is well with the world

^DM, I don't think the regulation specifies the house, merely the land. As such, I think you could word the affidavit in such a way as to only include the land (and its value) and that the house (and any other fixture) value could be considered communal property. It would, obviously, rely heavily on the wording you use in the affidavit and likely as not the standard form affidavit issued by the Dept. of Lands would not suffice.

SM

Not that I'm overly worried, but that first post looks suspiously like a post of mine with the explanation notes taken out

I've never actually used them, and I have no affliation with them at all, but I have heard one or two good stories about a company called ACT Leather

If you are interested, give them a ring and see what they can do for you

Address : 562 Moo 2, Bangpoo Industrial Estate

Bangpoo Mai

City : Samutprakarn

Country : Thailand

Zip Code : 10280

Tel : +66 (0) 2324 0656, +66 (0) 2324 0656

Fax : +66 (0) 2709 3437, +66 (0) 2709 3437

As I say though, not a personal recommendation (as I cannot afford to have sofas made up )

Correct. Minster approval is required. Provided you get the permission, and the land is within the space limitation, nothing stopping you from keeping it. If the Minister denies your application, yuou have 1 year to sell.

Section 93 & 94 (I think, or there abouts) of the Land Code.

SM

As for the statement that a farang can inherit as long as he sells within 1 year, again I can find no basis for this in my legal reports. Although there are provisions for this regarding condo inheritance and Company failure.

Besides the aforementioned rules and conditions, an alien may acquire land by inheritance as statutory heir, in this instance, the land devolved when combined with the land already acquired shall not exceed that specified by law, for examples, land for residential purpose not exceeding 1 rai per household, land for commercial purpose not exceeding 1 rai, land for industrial purpose not exceeding 10 rais, and land for agricultural purpose not exceeding 10 rai per household.

http://www.dol.go.th/guide/land_080745_eng.htm

SM

No such thing in Thailand

Basically you need to put down between 20 and 30% of the purchase price and evidence that you have the means to repay the monthly mortgage amount. In most cases involving Thai-farang couples, this equates to a guarantee from the farang - who'll still need to show that he can make the monthly repayments and may be asked to disclose his earnings-to-borrowing ratio (although this is not always asked for , it is in most cases).

So, you can borrow as much as you can afford is the answer - but the 20-30% down payment is pretty much non-negotiable

SM