Thai gov. to tax (remitted) income from abroad for tax residents starting 2024 - Part I

[jerrymahoney]

5 hours ago, Dogmatix said:

The RD doesn't have the power to reinterpret the law which has stood without challenge for 38 years.  If there is to a be a reinterpretation, this should be the role of the Tax Court.  

 

He says the reinterpretation flies in the face of established tax law principles which require that, if a law is unclear and has two possible meanings, it should be interpreted in the way that is more favorable to taxpayers.  <snip>

 

If they insist on going ahead with a type of global taxation, it should be properly thought through with all types of income and overseas tax practices and DTAs thoroughly reviewed first.

Thanks. Very helpful.

[jacko45k]

17 hours ago, Dogmatix said:

The RD's unilateral amendment to the Tax Code could easily open the floodgates for that sort of extortion again. 

Yes, it may well not be the tax payment itself that is the worry, but yet another basis to extort. 

[Dogmatix]

6 hours ago, MistyBlue said:

Thanks for sharing this, very insightful.  I see that he also a Director/Governor of the Thai stock exchange so certainly one that may be heard in shaping policy.

Is there a link to the original source of his statement, please?

Someone sent me Kittipong’s article in pdf format but it was published by Krungthep Thurakit here https://www.bangkokbiznews.com/finance/investment/1091100#

 

Krungthep Thurakit is part of The Nation. So perhaps they will publish it in English on their website (still miss the print edition).

 

Another point raised by Kittipong that I don’t think I included in my quick summary was that the RD order failed to instruct RD staff to take into account DTAs when applying it’s apparently off the cuff and unlawful reinterpretation of the Revenue Code. The RD spokesman mentioned DTAs but that was only a verbal comment to newsmen. You would think the order would include at least a basic principle regarding the application of DTAs, such as in cases where a DTA allows either contracting state to tax an income source, will the RD’s policy be to allow tax credits and tax the differential or tax the whole lot and let the taxpayer claim a tax refund from the other contracting state. The UK’s HMRC for example, has an established mechanism for claiming DTA tax refunds with a form available online for this purpose.

[Dogmatix]

1 hour ago, jacko45k said:

Yes, it may well not be the tax payment itself that is the worry, but yet another basis to extort. 

RD officers showing up at the homes of octagenarian farangs enjoying quiet retirement - “You farang, you live Thailand. You pay money now”. It has happened already to younger retirees under the existing rules.

[Dogmatix]

6 hours ago, ukrules said:

 

This is exactly what would happen, it's exactly what I would do if I needed some money in a hurry

 

By back to back loans what Kittipong meant was, for example, X Co based in HK borrows HK$ and lends them to a subsidiary of Thai based Z Co in HK. Meanwhile Z Co in Bangkok reciprocates by borrowing in baht which it lends to a Thai subsidiary or affiliate of the HK based X Co which uses the funds to invest in a Thai project. X Co in HK is, of course, a shell company established in HK by a wealthy Thai investor for the purpose of repatriating funds to Thailand tax free. The profits of the new Thai venture remain in Thailand but principle can be remitted offshore with interest if desired. Alternatively, the loan could perhaps be structured as a convertible with an option to convert to equity and not bother with servicing and the debt. The super wealthy will find ways around this. 
 

For regular expats some type of loan mechanism may be possible, if you have an offshore company with a bank account or another name you can route money through. A loan agreement could be set up that rolls up all interest as a bullet payment for a 10 year term which is extendable indefinitely at the discretion of the lender.  Perhaps naturalized Thai citizens can adopt a Thai name and lend to themselves from an account in their birth name. 555. The RD might need to come up with another reinterpretation to reclassify this type of loan as income but it would probably take them many years to track the unrepaid loans. One could also issue a new loan to repay the principle and forgive the interest which would be taxable in remittance and restart the clock.

Edited September 30, 2023 by Dogmatix

[TroubleandGrumpy]

11 hours ago, Ben Zioner said:

BOI were quoting the RD.  For what it is worth.

I saw the quote and they were still waiting for confirmation that it would still not apply after this change. 

The Thai RD or PM has not stated that the LTR Visa holders who stay over 180 days will be exempt from this new rule interpretation on income earned abroad and brought into Thailand.  If I have missed that press release or statement please provide the details.

The whole idea is to stop money 'laundering' and to raise income taxation - maybe they will be exempt, but maybe not.  Yet another case of 'watch this space' because no one really knows.

 

What I do know, freely available info on the web and from local Thais, is that the Thai RD has a history of totally screwing up taxation rule changes. They often over-enforce, then pull back, then start again, then pull back again - totally disorganised and extremely inefficient (compared to ATO or IRS etc.).  Up until now they have just not bothered trying to tax Expats - too much work and too hard - but when they start something they are like a rabid dog and they go for everything they see move.  If you think they will exempt any Visa holder, unless specifically told to by HQ, then you dont know how Thailand bureacracy works.   

[TroubleandGrumpy]

10 hours ago, Somjot said:

....................

Some Ministry had asked for a comparative study. They wanted to know which factor had the greatest impact on the development of the rural region in Issan, the Thai government projects, the Thai NGO projects, or the money sent by foreigners to their Thai girlfriends or wives.

“And?” I asked “what was the result?”

“We were never allowed to publish it.” He answered.

“Why?”

“It was devastating” he said with a serious face, then he took a big sip and finished “Devastating for us.”

That is another example of what is seriously wrong in Thailand. Those of us married to a Thai, especially those who are from Isaan, know only too well the positive impact our money has on the locals - especially those that live there.  But the majority of the Thai authorities do not want to know that fact for vested interests.  And when it is shown - the Thais quickly hide the truth, because they know that the authorities do not want to know.  

Thailand - the ultimate epitome of 'the XXX has no clothes' syndrome.  Some would say that Pita was the young boy who spoke out (far too loudly). 

[Karma80]

9 hours ago, Dogmatix said:

If they insist on going ahead with a type of global taxation, it should be properly thought through with all types of income and overseas tax practices and DTAs thoroughly reviewed first.  He urges the government to consider carefully the potential revenue that can be collected from this reinterpretation vs the likely long term damage that would be caused to the Thai economy by discouraging taxpayers from bringing their money to Thailand due to the tax and general uncertainty caused by a suddenly hostile tax regime for investors.

Thank you for the article. It will be interesting to see how this becomes settled. I wonder if a Royal Decree would be in the interests of the establishment making the said decree ????

 

I'm not retired as many are here, so i will just keep much of my money offshore and abandon notions of investing in property or otherwise. The government will loose no sleep over that I am sure, and the wealthy will still structure around it with a tweak or two.

[TroubleandGrumpy]

2 hours ago, Dogmatix said:

Someone sent me Kittipong’s article in pdf format but it was published by Krungthep Thurakit here https://www.bangkokbiznews.com/finance/investment/1091100#

Krungthep Thurakit is part of The Nation. So perhaps they will publish it in English on their website (still miss the print edition).

Another point raised by Kittipong that I don’t think I included in my quick summary was that the RD order failed to instruct RD staff to take into account DTAs when applying it’s apparently off the cuff and unlawful reinterpretation of the Revenue Code. The RD spokesman mentioned DTAs but that was only a verbal comment to newsmen. You would think the order would include at least a basic principle regarding the application of DTAs, such as in cases where a DTA allows either contracting state to tax an income source, will the RD’s policy be to allow tax credits and tax the differential or tax the whole lot and let the taxpayer claim a tax refund from the other contracting state. The UK’s HMRC for example, has an established mechanism for claiming DTA tax refunds with a form available online for this purpose.

Good article - he basically says (and proves) that this 'money grab' is both unlawful and a bad idea.

I wonder if the PM is listening - and who he is listening to.

 

[redwood1]

Every single day they let this tax uncertainty drag on it pushes invester confidence lower and lower......The damage is now almost perminet and will take a very long time to fix if ever....

 

And yes I am sure they already know this...  

Edited September 30, 2023 by redwood1

[Bosm88]

Hello,

 

I’m new to the forum and joined primarily because of this topic.

 

Just recently applied for the Elite Visa prior to the September 15th deadline and now I am unsure how to proceed when I receive the approval letter.

 

From my prior research, Elite Visa holders were not required to pay foreign income tax as residents (seemingly even for income earned/transferred within the same tax year.)

 

Curious if anyone expects this to change as it relates to Elite Visa holders?

 

If so, would it be possible to avoid income tax by paying for bills/purchases directly with foreign credit cards/bank accounts? 

 

Thanks in advance for your insights.

[K2938]

11 hours ago, stat said:

To my understanding all the money I have as principal i.e. cash is covered by DTA as it is existing and all gains have been realized before entering Thailand and so has been taxed in my home country (cash). Different scenario is if I have the money invested in stocks then I am liable to pay income tax on my profit from these holdings. Of course they can demand some nonsense proof which I cannot deliver but in my opinion this should be a safe route.

Just by analogy have a look at these UK rules (shown here even in a simplified way) and you can see that things can get extremely complicated with remittance taxation:  

 

https://pjdtax.co.uk/updates/can-i-transfer-money-to-the-uk/

Of course, nobody knows what the eventual Thai rules will be, but you should expect a bureaucratic nightmare

 

 

[Dogmatix]

46 minutes ago, TroubleandGrumpy said:

Good article - he basically says (and proves) that this 'money grab' is both unlawful and a bad idea.

I wonder if the PM is listening - and who he is listening to.

 

He is listening to Thaksin's faceless team of spin doctors who arrange his PR schedules and write his scripts. This one was presented as a fantastic way to refute the opposition attacking him over the funding for the 10k digital wallet and other populist wastrel schemes.  It served a purpose for a few days on the evening news to make it look as they would force foreigners and rich Thais to pay for those schemes. Then they move on to new PR initiatives without worrying about the long term damage done to the Thai economy as well as the wreckage they will cause to the lives of many expats with Thai families.

[Dogmatix]

2 minutes ago, K2938 said:

Just by analogy have a look at these UK rules (shown here even in a simplified way) and you can see that things can get extremely complicated with remittance taxation:  

 

https://pjdtax.co.uk/updates/can-i-transfer-money-to-the-uk/

Of course, nobody knows what the eventual Thai rules will be, but you should expect a bureaucratic nightmare

 

 

Very useful comparison.  It would be much more of a nightmare in Thailand because they are incapable of setting up clear rules like this and so much is left to the discretion and interpretation of different government offices and individual officials, not to mention endemic corruption and extortion. 

 

One of the recommendations made me laugh - open a new offshore account every year.  Did it occur to the writer how difficult it is to open offshore accounts nowadays or just onshore accounts with an overseas address?  You have to find a bank that will do it first. Then go through their KYC and compliance regulations.  One Swiss banker told him he tried to open an account for a guy who had made many millions from crypto. The bank's compliance department spent months demanding document after document and finally rejected the application.  I can see the point of opening new accounts to segregate funds but I don't think this is a viable approach for expats here. 

[K2938]

33 minutes ago, Bosm88 said:

Hello,

 

I’m new to the forum and joined primarily because of this topic.

 

Just recently applied for the Elite Visa prior to the September 15th deadline and now I am unsure how to proceed when I receive the approval letter.

 

From my prior research, Elite Visa holders were not required to pay foreign income tax as residents (seemingly even for income earned/transferred within the same tax year.)

 

Curious if anyone expects this to change as it relates to Elite Visa holders?

 

If so, would it be possible to avoid income tax by paying for bills/purchases directly with foreign credit cards/bank accounts? 

 

Thanks in advance for your insights.

1) There is an email from Thai Elite posted about this a little higher up in this thread which you might want to check.

2) Some Thai Elite agents historically claimed that - allegedly - there would not be any tax whatsoever for Thai Elite visa holders, but this was never correct.  Thai Elite visa holders only had the exemption for foreign earnings not remitted in the same year of earning like everybody else.

3) With the proposed tax changes this would be over for Thai Elite visa holders just like for everybody else (with a potential minor exception for LTR visa holders of certain foreign income).

4) So if this change is actually implemented, this will have a devastating effect on Thai Elite visa sales since many justified the huge fees by the tax advantages.

5) Since the Thai government makes a lot of money from the sale of Thai Elite visas it is possible that they will exempt Thai Elite visa holders to avoid this money stream stopping.  One would imagine that Thai Elite is aggressively lobbying for this behind the scenes, but what the outcome will be nobody knows.

6) You might want to ask for a deferment of your membership until there is clarity about the new rules.  And if you are not granted this deferment and tax is important to you, then you might want to pass on the visa.

7) Using foreign credit cards would most probably be tax evasion.  With enough effort from the Thai authorities, it would also be possible to trace this.  If they will do this or not, again nobody knows yet.

[mokwit]

Here's a wild card:

 

What if under CPR or just anyways Thai banks insist on a TIN to open or MAINTAIN a Thai bank account? Anybody not already registered for tax would have to register for tax in order to maintain the account and be able to present a bank book at extension time.

 

SCB ALREADY requires a TIN to open a new account for foreigner apparently. There is always the risk that could be extended to existing accounts.

 

Views?

 

 

Edited September 30, 2023 by mokwit

[Dogmatix]

1 hour ago, Karma80 said:

Thank you for the article. It will be interesting to see how this becomes settled. I wonder if a Royal Decree would be in the interests of the establishment making the said decree ????

 

I'm not retired as many are here, so i will just keep much of my money offshore and abandon notions of investing in property or otherwise. The government will loose no sleep over that I am sure, and the wealthy will still structure around it with a tweak or two.

I think Kittipong mentioned the possibility of a Royal Decree because constitution does allow the government to issue Royal Decrees to deal with emergency matters of government finance, although many of these have been challenged in the past, e.g. Yingluck's Royal Decrees to create a huge budget for flood relief in 2011 that wasn't even touched for years, and perhaps never was, because it was for several different ministries and agencies and they failed to come up with a coordinated plan.  But governments usually get away with issuing unnecessary Royal Decrees.  I would guess the Royal Decree for the LTR exemption was also unnecessary because it was hardly an emergency but I didn't see anyone challenge that. 

 

So I think, as legal scholar, Kittipong has to acknowledge that a Royal Decree would be a possibility but I am sure his preferred route would be an Act of Parliament to change such a long standing provision of the Revenue Code. A Royal Decree would at least be subject to some scrutiny and public debate and would have to be approved in a cabinet resolution, forcing Srettha to get coalition partners, who may have hundreds of millions salted away in Panama papers companies, on board. 

[K2938]

3 minutes ago, mokwit said:

What if under CPR or just anyways Thai banks insist on a TIN to open or MAINTAIN a Thai bank account? Anybody not already registered for tax would have to register for tax in order to maintain the account and be able to present a bank book at extension time.

 

SCB ALREADY requires a TIN to open a new account for foreigner apparently. There is always the risk that could be extended to existing accounts.

 

Views?

It does not really matter since not having a TIN does not spare you from taxation.  Some people have mentioned this, but this is just an illusion.  If you entered Thailand legally which I assume, the Thai authorities know about you and can find you.  Having a TIN facilitates things for the Thai authorities, but not having one does not really save you.

[mokwit]

6 minutes ago, K2938 said:

It does not really matter since not having a TIN does not spare you from taxation.  Some people have mentioned this, but this is just an illusion.  If you entered Thailand legally which I assume, the Thai authorities know about you and can find you.  Having a TIN facilitates things for the Thai authorities, but not having one does not really save you.

My understanding is if you are here for 180 days+ BUT are not eligible for taxation e.g. because you have been transferring money in the year after it is earned you strictly speaking do not have to register - you are kind of on your honour to register if you have taxable income.

 

In other words just being here 180+ days does not require you to register but that AND having taxable income does.

 

Happy to be told I am wrong if I am.

Edited September 30, 2023 by mokwit

[K2938]

3 minutes ago, mokwit said:

My understanding is if you are here for 180 days+ BUT are not eligible for taxation e.g. because you have been transferring money in the year after it is earned you strictly speaking do not have to register - you are kind of on your honour to register if you have taxable income.

True, but I interpreted your question such that you wanted to ask if by not having a TIN you could avoid violating the new tax rules.  And that would not be the case.

[mokwit]

3 minutes ago, K2938 said:

True, but I interpreted your question such that you wanted to ask if by not having a TIN you could avoid violating the new tax rules.  And that would not be the case.

The point I was making was that you might have a situation where you can't not have a TIN to maintain a bank account and you need a bank account for visa extensions.

 

True, if the new law comes in people who are legitimately walking around without a TIN now may be required to have one by law anyway.

[Dogmatix]

Here is 10 year old article from the Nation which discusses the difficulty of getting foreign tax credits for those earning money from employment overseas who need to remit the money to Thailand for living expenses.  https://www.nationthailand.com/business/30210696

This is going to apply to many of Thailand's overseas labourers whose families in Thailand depend on their remittances, as well as expats.

I note one part in particular referring to use of DTAs:

 

"But even then, actually getting the FTC from the Thai Revenue Department is not easy. Success in getting the FTC depends on presentation, defence and how an FTC refund request is substantiated and documented to the Revenue Department."

 

That makes clear that in the few cases the RD currently has to deal with, getting the RD to accept foreign tax credits will depend on the documentation provided and discretion of individual officials.

[Dogmatix]

28 minutes ago, mokwit said:

Here's a wild card:

 

What if under CPR or just anyways Thai banks insist on a TIN to open or MAINTAIN a Thai bank account? Anybody not already registered for tax would have to register for tax in order to maintain the account and be able to present a bank book at extension time.

 

SCB ALREADY requires a TIN to open a new account for foreigner apparently. There is always the risk that could be extended to existing accounts.

 

Views?

I think this will definitely happen.  I have had to provide details of tax residence and TIN within the last two years to maintain bank and securities accounts in countries that joined CRS reporting in 2018.  So it could take a while in Thailand but sure as God made little green apples....   And Thai banks don't care about shutting down foreigner bank accounts either.  When the anti-money laundering law came out in the early 2000s, the BoT issued a very unclear announcement about foreigner bank accounts which some banks like BBL interpreted as only allowing bank accounts for foreigners with WPs.  BBL started checking WPs when foreigners came into the bank and closed down accounts of some people who didn't have one.  I went into a BBL branch to get a new bank book while between jobs and told they would close my account of over 10 years, despite the fact I was a PR.  I argued that the BoT notice required a tabian baan for address verification and that foreigners were only asked for WPs because most didn't have a tabian baan but I had a blue one. I had to get on the phone to head office to sort out to old bag I was arguing with and save my account but others were not so lucky. KBANK never did this and eventually the hysteria died down. 

[mokwit]

On 9/29/2023 at 9:35 AM, TroubleandGrumpy said:

Liable Taxation is like Murder, it never goes away and if/when you are caught out, the investigation and punishment is backdated. That is what seriosuly worries me. In 5-8-10-12 years time I receive a letter from Thai RD claiming that I owe millions of baht in back taxes, advising me that my passport has been 'held' and any attempt to leave Thailand before finalisation of the issue is a criminal offence and will be severely punishable (and will be an admission of guilt). 

There is a statute of limitations - 2-5 years if you filed, courts apply 10 years max if you didn't.

 

Google: 'How long can a tax man go back in time to assess you' with name of a Bangkok based newspaper.

 

[mokwit]

18 hours ago, blackcab said:

 

When applying for a Non-B extension for the purpose of working for a Thai company you have to submit your previous years PND91 to prove income tax has been paid.

I am sure you still have to submit the paper but apparently Imm now have online access - that could be used for retirement applicant checking also.

 

 

[beammeup]

Some have suggested that you may need a TIN in order to maintain a Thai bank account. Does that include the 40 or so million Thais that don't have a TIN but have bank accounts?

[mokwit]

6 minutes ago, beammeup said:

Some have suggested that you may need a TIN in order to maintain a Thai bank account. Does that include the 40 or so million Thais that don't have a TIN but have bank accounts?

Good point: Seems pointless when of the 40 million Thais many are not eligible for income tax.

 

Don't know what the Thai interpretation would be but in the UK, officially all UK citizens must be tax resident to have a UK bank account, no?

 

What we DO know is that one bank (SCB) are now requiring a tax ID for foreigners to open a bank account BUT: that may just be a way of screening out less profitable accounts. Contrary to popular belief Thai banks don't really want foreigner accounts because they don't make enough money from them.

[moogradod]

38 minutes ago, mokwit said:

Liable Taxation is like Murder, it never goes away and if/when you are caught out, the investigation and punishment is backdated. That is what seriosuly worries me. In 5-8-10-12 years time I receive a letter from Thai RD claiming that I owe millions of baht in back taxes, advising me that my passport has been 'held' and any attempt to leave Thailand before finalisation of the issue is a criminal offence and will be severely punishable (and will be an admission of guilt). 

It is actually @TroubleandGrumpy who said this, but lets assume that you really did not pay tax for lets say a few years, 4, 5. Do you then think it is better before December 31, 2023 to approach the RD to declare that instead of occasionally get caught in 8 years if this seriously worries you ? It could well be that many are in this situation. I have even heard the story (nothing but rumour of course) of someone who wanted to declare this pension but was sent home by RD. They said at the time it was too complicated for them to verify when what was paid when and did not even provide him with a tax ID. But this may be just a story (which I can hardly really believe I must admit).

[TroubleandGrumpy]

2 hours ago, K2938 said:

Just by analogy have a look at these UK rules (shown here even in a simplified way) and you can see that things can get extremely complicated with remittance taxation:  

https://pjdtax.co.uk/updates/can-i-transfer-money-to-the-uk/
Of course, nobody knows what the eventual Thai rules will be, but you should expect a bureaucratic nightmare

I just got another 'nightmare' scenario just sent to me by a legal/tax expert:

Quote: "The new rules state that if you spend more than 180 days in Thailand per year, you will be required to declare all of your foreign income, regardless of when it was earned or whether it was remitted to Thailand. This is a significant change from the previous rules, which only required you to declare foreign income that was remitted to Thailand. The Thai Revenue Department is still working out the details of the new rules, so it is not yet clear what additional paperwork or translations will be required. However, it is important to be aware of the new rules and to start planning for how you will comply with them."

Please note that this is advice and may not be pertinent or correct or apply to everyone. 

But if I/we are now legally required to report/declare all of my 'foreign income' to the Thai RD (meaning all my transfers into my Thai bank account) this is going to be a nightmare. 

 

 

[K2938]

1 minute ago, TroubleandGrumpy said:

"The new rules state that if you spend more than 180 days in Thailand per year, you will be required to declare all of your foreign income, regardless of when it was earned or whether it was remitted to Thailand. This is a significant change from the previous rules, which only required you to declare foreign income that was remitted to Thailand. The Thai Revenue Department is still working out the details of the new rules, so it is not yet clear what additional paperwork or translations will be required. However, it is important to be aware of the new rules and to start planning for how you will comply with them."

Very strange about declaring ALL income if it is not remitted and not sure what the purpose of that should be.  If you do not mind the question, may I ask if this was from a highly reputable tax firm, like one of the Big 4?