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


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7 minutes ago, Mike Lister said:

The issue is not whether the money involved is assessable or not.

 

The issue is, whether the scenario I set out represents contrived tax evasion.

I guess I really can't read, because it appears you're saying money used to payback a loan, that is money assessable as income by Thailand -- if it were remitted to Thailand (I hope you're not confusing the loan and payback as one in the same monies?) -- but it's not assessable, because it's not remitted -- represents contrived tax evasion.?

 

Any referees here?

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Just now, JimGant said:

I guess I really can't read, because it appears you're saying money used to payback a loan, that is money assessable as income by Thailand -- if it were remitted to Thailand (I hope you're not confusing the loan and payback as one in the same monies?) -- but it's not assessable, because it's not remitted -- represents contrived tax evasion.?

 

Any referees here?

A simple scenario:

 

I live in Thailand and I need money to live on but am afraid to remit money here because it would be assessable and I might have to pay Thai tax. I have money in the US bank back home but still, I don't want to pay tax. 

 

I call back home and arrange a loan which is accepted, 50k  USD is deposited into my US account which I then remit to Thailand. That money is accepted in Thailand as a loan, which according to earlier statements is not assessable.

 

The week after the 50K USD has arrived, I call the US loan company back home and tell them I want to make early redemption on the loan, they agree. I transfer 50k USD from my US bank account, to the loan company which is now fully paid.

 

Tell me that's not tax evasion! The only way to avoid that is for the initial remittance to be assessable, despite it being a loan.

 

Meanwhile, I'm sat here in Thailand holding the USD 50K that came from the loan company originally and TRD is non the wiser because it's a loan and I have the paper work to prove it is so.

 

 

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Posted (edited)

I understand both sides of the argument, but if someone truly borrowed money and remitted it to buy a car or condo becuase they truly needed to, then that is not tax evasion. It was earnetly done.

Now, if someone had $100k in the bank and they borrowed $100k against it (a share loan from credit unions or margin loan against stocks) and remitted the loan monies, then immediately paid the loan off, then that could be viewed as tax evasion by some and rightly so (the sniff test), but technically, it was still a loan and I don't see how Thailand would know whether the person was doing it to evade taxes.

In my opinion, loans should not be assessable income.

I usually don't like to get in the middle of disagreements, but until TRD issues a ruling on this, it is not settled one way or the other, right?

Edited by JohnnyBD
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2 minutes ago, JohnnyBD said:

I understand both sides of the argument, but if someone truly borrowed money and remitted it to buy a car or condo becuase they truly needed to, then that is not tax evasion. It was earnetly done.

Now, if someone had $100k in the bank and they borrowed $100k against it (a share loan from credit unions or margin loan against stocks) and remitted the loan monies, then immediately paid the loan off, then that could be viewed as tax evasion by some and rightly so (the sniff test), but technically, it was still a loan and I don't see how Thailand would know whether the person was doing it to evade taxes.

Settled?

Another aspect of this is that foreign currency loans are often very high risk, borrowing in one currency to fund spending in another, unless you're involved in the carry trade which is also very risky. The Thai's know this only too well, it was the cause of the 1997 crash. So when a foreigner in Thailand tells them that assessable income is really borrowed money, expect them to wonder if the foreigner is as foolish as they were back then or is something else going on. Which is why I wonder is loan money really is not assessable.

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6 hours ago, Mike Lister said:

R) An offshore loan remitted to Thailand is not assessable income.  There are many instances of this. 

 

If a foreigner takes out a loan in their home country and remits those funds to Thailand and says they represent non assessable income, because the funds are borrowed, that might be the end of the matter as far as taxpayer and TRD are concerned, ot it might not.

 

If the foreigner subsequently pays off that loan, in their home country, using income that would have been assessable to tax in Thailand, had it been remitted, there is no requirement for the loan repayment to be reported in Thailand. Yet the status of those funds has now changed, they are no longer borrowed funds and the foreigner has just committed tax evasion......or has he? According to the above, no, my sniff test says yes.

@Dogmatix 

 

Before anyone has a go at me for discussing tax evasion, according to an entirely credible post above, remitting a loan in this manner is not assessable, the purpose of this post is therefore to determine is that is true or not.......I say it is not.

 

I don't think the RD can deem a repayment of a loan from offshore as assessable income.  They are already stretching that para that they have reinterpreted and their authority by reinterpreting it at all. They can't just decide that what they would like put into the RC by way of amendment is already there because they have wished for it.  Anyway the lender could make it a 100 year loan.  I have made loans to Thailand that were for an initial 10 year tenor but extendable indefinitely via a board resolution of the lender company. Eventually it suited me to repay them from onshore as the company had sold the property it bought with the loans.  However, no one ever queried those loan agreements, not the auditor, the RD or the bank on remittance in or out. 

 

In some circumstances loans for more than a certain period can be deemed as income e.g. UK company loans to director. But this has to be written down somewhere.  The RD cannot just invent it.  I am pretty sure that wealthy Thais will use this sort of mechanism including back to back loans, as was suggested by Prof Kittipong in his article in Thai on the reinterpretation.  I was originally planning to do this myself but came across a problem in the BVI which was that BVI companies making interest free loans that are more than short term can be deemed to be lending institutions and therefore "in scope" which means they have to hire local staff in the BVI which is no longer the benign tax haven it used to be following relentless pressure from the EU.  From this year unaudited accounts are required for the first time and although these are not filed with the BVI government, your BVI has the right to request more clarification of the accounts submitted and could well challenge the loans, as they stand to make money from providing you with the unnecessary onshore staff.  Theoretically you could have a loan from an individual but I don't think from yourself.

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3 minutes ago, Dogmatix said:

 

I don't think the RD can deem a repayment of a loan from offshore as assessable income.  They are already stretching that para that they have reinterpreted and their authority by reinterpreting it at all. They can't just decide that what they would like put into the RC by way of amendment is already there because they have wished for it.  Anyway the lender could make it a 100 year loan.  I have made loans to Thailand that were for an initial 10 year tenor but extendable indefinitely via a board resolution of the lender company. Eventually it suited me to repay them from onshore as the company had sold the property it bought with the loans.  However, no one ever queried those loan agreements, not the auditor, the RD or the bank on remittance in or out. 

 

In some circumstances loans for more than a certain period can be deemed as income e.g. UK company loans to director. But this has to be written down somewhere.  The RD cannot just invent it.  I am pretty sure that wealthy Thais will use this sort of mechanism including back to back loans, as was suggested by Prof Kittipong in his article in Thai on the reinterpretation.  I was originally planning to do this myself but came across a problem in the BVI which was that BVI companies making interest free loans that are more than short term can be deemed to be lending institutions and therefore "in scope" which means they have to hire local staff in the BVI which is no longer the benign tax haven it used to be following relentless pressure from the EU.  From this year unaudited accounts are required for the first time and although these are not filed with the BVI government, your BVI has the right to request more clarification of the accounts submitted and could well challenge the loans, as they stand to make money from providing you with the unnecessary onshore staff.  Theoretically you could have a loan from an individual but I don't think from yourself.

It's not that the repayment might be considered assessable income, it's more that the loan and its repayment offshore, could easily be seen as avoidance, which is why I questioned its non-assess ability. See the simple example I set out for Jim Gant.

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9 hours ago, Mike Lister said:

 

There is an extensive discussion and review of Gift Tax in the following link, the answer is not as as straight forward and clear cut as you might imagine.

 

 

I find the advice to get a gift agreement drawn up and notarised overseas strange and I am not sure who suggested it, since it is unattributed.  Certainly there is no basis for it under the RC or the Civil and Commercial Code. There is no public notary law in Thailand and technically there are no public notaries.  Has anyone ever come across a Thai government department asking for a notarised documents?  There are Thai lawyers that call themselves notaries and provide notary services for use overseas but that is based on an internal regulation of the Lawyers Association of Thailand, not national law.  Thai government departments ask for things to be certified by another government, not by a notary.  There is no requirement to get loan documents notarised, even in countries that have notaries and there is far greater likelihood of a dispute over a loan than a gift.  So why for a gift document?  Personally I think it would suffice to draw up a simple gift agreement which could be drawn up retroactively, if needed.

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3 minutes ago, Dogmatix said:

 

I find the advice to get a gift agreement drawn up and notarised overseas strange and I am not sure who suggested it, since it is unattributed.  Certainly there is no basis for it under the RC or the Civil and Commercial Code. There is no public notary law in Thailand and technically there are no public notaries.  Has anyone ever come across a Thai government department asking for a notarised documents?  There are Thai lawyers that call themselves notaries and provide notary services for use overseas but that is based on an internal regulation of the Lawyers Association of Thailand, not national law.  Thai government departments ask for things to be certified by another government, not by a notary.  There is no requirement to get loan documents notarised, even in countries that have notaries and there is far greater likelihood of a dispute over a loan than a gift.  So why for a gift document?  Personally I think it would suffice to draw up a simple gift agreement which could be drawn up retroactively, if needed.

Once again we're into the realm of differing views on this, Mike Teave and Klonko both hold strong views on this subject and Mike's arguments appear logically correct. One of the conclusions that came out of a lengthy debate was that it was safest to make the Gift overseas and for the receiver to remit it as gifted funds. I'll let Mike and Klonko argue their respect views and/or for you to join that debate if you wish. In the meantime, I'll leave the matter open and on the list of unknowns.

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2 hours ago, JimGant said:

Any referees here?

No - however I disagree with Mike's view on this to the extent that it appears to be another loophole........:whistling:

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49 minutes ago, topt said:

No - however I disagree with Mike's view on this to the extent that it appears to be another loophole........:whistling:

It's important to note that I don't have a view on this, only a challenge to test what it is. Right now my sniffometer is vibrating alarmingly.

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On 5/27/2024 at 12:24 PM, Mike Lister said:

Several of these points have bounced backwards and forwards, onto and then off and then back onto the list again. I'd like to see a consensus on them or substantial proof from an independent source, before taking them off and closing them out. Which is why they have been posted here yet again. A part of the problem now is that debates are running in two separate threads, on the same subjects, Gift Tax for example has been heavily debated recently in the ways to reduce tax thread and still hasn't concluded decisively. Ditto cc transactions vis a ve remitted income. Whilst I support that they are assessable, there's hardly anyone else that agrees, despite the French video.

 

 

Mike to be frank your way of approaching this topic is very different then mine. I think your strict approach is not helpful because there will not be a consensus on 50% of the topics and therefore they cannot be "closed" out as there is no specific law or directive for a lot of issues. You long for the one correct answer like in mathematics but TiT and we are talking tax law which is evolving in a constant matter.

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6 hours ago, Mike Lister said:

I think you are being deliberately obtuse and trying purposely to muddle the questions and avoid the scenario I'm questioning. If you continue to play games I will delete this exchange because it adds no value to the thread, it only subtracts from it.

The question and your answer added substantial value to this thread. I do not have a clue why you want to delete these posts.

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10 hours ago, stat said:

The question and your answer added substantial value to this thread. I do not have a clue why you want to delete these posts.

Posts are never deleted, only ever hidden from view by members, moderators and Admin can still see all those those posts going back a long way.

 

I "deleted" them because they didn't add anything to the debate that doesn't exist in other posts, plus, some of them were not very complementary for the member who seemed to be struggling with the question. I've looked again at those posts and indeed those things remain true. I need to consider other members who tell us they don't enjoy scrolling through of posts about the same thing that doesn't interest them. It's for this reason that I declutter threads where ever possible and attempt to leave a framework, without losing substance.

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11 hours ago, Dogmatix said:

 

I find the advice to get a gift agreement drawn up and notarised overseas strange and I am not sure who suggested it, since it is unattributed.  Certainly there is no basis for it under the RC or the Civil and Commercial Code. There is no public notary law in Thailand and technically there are no public notaries.  Has anyone ever come across a Thai government department asking for a notarised documents?  There are Thai lawyers that call themselves notaries and provide notary services for use overseas but that is based on an internal regulation of the Lawyers Association of Thailand, not national law.  Thai government departments ask for things to be certified by another government, not by a notary.  There is no requirement to get loan documents notarised, even in countries that have notaries and there is far greater likelihood of a dispute over a loan than a gift.  So why for a gift document?  Personally I think it would suffice to draw up a simple gift agreement which could be drawn up retroactively, if needed.

 

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Posted (edited)
11 hours ago, Dogmatix said:

 

I find the advice to get a gift agreement drawn up and notarised overseas strange and I am not sure who suggested it, since it is unattributed.  Certainly there is no basis for it under the RC or the Civil and Commercial Code. There is no public notary law in Thailand and technically there are no public notaries.  Has anyone ever come across a Thai government department asking for a notarised documents?  There are Thai lawyers that call themselves notaries and provide notary services for use overseas but that is based on an internal regulation of the Lawyers Association of Thailand, not national law.  Thai government departments ask for things to be certified by another government, not by a notary.  There is no requirement to get loan documents notarised, even in countries that have notaries and there is far greater likelihood of a dispute over a loan than a gift.  So why for a gift document?  Personally I think it would suffice to draw up a simple gift agreement which could be drawn up retroactively, if needed.

A couple of the Expat Tax firms have recommended that the best way to "Gift" money to your spouse is to do it overseas & draw up a document (in the country where you're making the Gift) that clearly states the gift is to them & you have no vested interest in it.

 

I don't think it's been mentioned that this needs to be notarised but obviously the more "Formal" the document, the more weight it would carry, as mentioned, this would be done in the country of gifting so not usually a problem to get it notarised if you wanted to.

 

It's certainly not a Thai regulation, just a "Belt & Braces" approach to adding weight to the fact that the "Gift" is really a "Gift", i.e. if TRD challenged the Gift you'd have something to show them to prove that it was a Gift - No guarantee they'll accept it but the more formal the document the more likely that they would over something written on the back of a fag (cigarette) packet which is better than nothing at all.

Edited by Mike Teavee
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Posted (edited)
18 hours ago, Mike Lister said:

R) An offshore loan remitted to Thailand is not assessable income.  There are many instances of this. 

 

If a foreigner takes out a loan in their home country and remits those funds to Thailand and says they represent non assessable income, because the funds are borrowed, that might be the end of the matter as far as taxpayer and TRD are concerned, ot it might not.

 

If the foreigner subsequently pays off that loan, in their home country, using income that would have been assessable to tax in Thailand, had it been remitted, there is no requirement for the loan repayment to be reported in Thailand. Yet the status of those funds has now changed, they are no longer borrowed funds and the foreigner has just committed tax evasion......or has he? According to the above, no, my sniff test says yes.

@Dogmatix 

 

Before anyone has a go at me for discussing tax evasion, according to an entirely credible post above, remitting a loan in this manner is not assessable, the purpose of this post is therefore to determine is that is true or not.......I say it is not.

 

I've been thinking about this a lot as I have a "Current Account" Mortgage which works by taking off anything you have in the account from the Capital owed when calculating Interest (E.g. I have approx. £500 over the amount I borrowed in there & they pay me interest, if I took out £1,000 I would pay them interest on the £500 I would then owe). 

 

So if I were to take £50K out, would it be savings (I put the money in there to pay off the mortgage 18 years ago) or would it be a Loan (It is a mortgage)? Either way it feels non-assessable.

 

If I were to remit that £50K then add it back from selling some shares so I was in credit again (incurring 1 day's worth of interest) would that be me remitting savings/a loan or could it be seen as me cycling the share sale proceeds that I used to replenish the account.

 

No chance of them being able to "Catch Me", just curious as to what people's views are on this, I believe I'm just remitting savings that I've had in a Bank Account since 2004 (only catch is the Balance would only show approx. £500), how I then go on to repay my mortgage is of no concern to Thailand.

Edited by Mike Teavee
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55 minutes ago, Mike Teavee said:

 

I've been thinking about this a lot as I have a "Current Account" Mortgage which works by taking off anything you have in the account from the Capital owed when calculating Interest (E.g. I have approx. £500 over the amount I borrowed in there & they pay me interest, if I took out £1,000 I would pay them interest on the £500 I would then owe). 

 

So if I were to take £50K out, would it be savings (I put the money in there to pay off the mortgage 18 years ago) or would it be a Loan (It is a mortgage)? Either way it feels non-assessable.

 

If I were to remit that £50K then add it back from selling some shares so I was in credit again (incurring 1 day's worth of interest) would that be me remitting savings/a loan or could it be seen as me cycling the share sale proceeds that I used to replenish the account.

 

No chance of them being able to "Catch Me", just curious as to what people's views are on this, I believe I'm just remitting savings that I've had in a Bank Account since 2004 (only catch is the Balance would only show approx. £500), how I then go on to repay my mortgage is of no concern to Thailand.

If you took this question to TRD and asked them what their position would be, I can see TRD offering you money just to go away and not come back! 🙂

 

I GUESS, a product like this would require annual settlement to figure out the net effect over the course of the year.

 

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1 hour ago, Mike Teavee said:

just curious as to what people's views are on this, I believe I'm just remitting savings that I've had in a Bank Account since 2004 (only catch is the Balance would only show approx. £500),

If push came to shove and you were audited (and they didn't do what Mike suggested :biggrin: ) then I suggest that is where the plan would fall over. The additional change to allow savings up to 31/12/24 is already quite "generous".........

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1 hour ago, topt said:

The additional change to allow savings up to 31/12/24 is already quite "generous".........

 

I would caution about seeing that date as being black and white protection.

 

For mine, the lurking danger is TRD may well want to see the Savings Account Balance - if that is the source of funds remitted to Thailand - as at the date of the actual transfer.  If that balance exceeds the balance as at 31/12/2023 I fear the TRD will take the LIFO (Last In First Out) view ie.  any increase in the balance may be determined to be assessable   

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4 minutes ago, dinga said:

 

 

I would caution about seeing that date as being black and white protection.

 

For mine, the lurking danger is TRD may well want to see the Savings Account Balance - if that is the source of funds remitted to Thailand - as at the date of the actual transfer.  If that balance exceeds the balance as at 31/12/2023 I fear the TRD will take the LIFO (Last In First Out) view ie.  any increase in the balance may be determined to be assessable   

Por 262 confirms that any income accrued prior to 1 January 2024 is free of Thai tax, please read number 3 in the attached link.

 

https://sherrings.com/foreign-source-income-personal-tax-thailand.html

 

Any income earned after that date, is potentially tax assessable in Thailand. 

 

The date of the actual transfer is not relevant, only the date the income was earned is.

 

There is no proof that the TRD uses LIFO to assess the contents of commingled funds, that is speculation at this point.

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7 minutes ago, Mike Lister said:

Por 262 confirms that any income accrued prior to 1 January 2024 is free of Thai tax, please read number 3 in the attached link.

not free of Thai tax...just not taxed under the new rules, but under the old rules

 

 

9 minutes ago, Mike Lister said:

There is no proof that the TRD uses LIFO to assess the contents of commingled funds, that is speculation at this point.

True, there is no proof, but it is very likely...

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7 minutes ago, andre47 said:

not free of Thai tax...just not taxed under the new rules, but under the old rules

 

 

True, there is no proof, but it is very likely...

Yes you are correct on the first point, my wording was sloppy. But the second point remains speculation.

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3 hours ago, Mike Lister said:

If you took this question to TRD and asked them what their position would be, I can see TRD offering you money just to go away and not come back! 🙂

 

I GUESS, a product like this would require annual settlement to figure out the net effect over the course of the year.

 

Lol... It's actually very straight forward, interest is calculated on daily basis based on how much is owed in the account (i.e. how much you borrowed minus what you've put in there) & then applied to the account monthly. 

 

The settlement amount is whatever you borrowed + any accrued interest and is due at the end of the mortgage so there is nothing to stop you withdrawing up to the amount agreed at any point up until then as log as you pay it back by the end of the term. 

 

When they were 1st launched (Virgin One account in the UK quickly followed by Woolwich Open Account) they were nicknamed an "Aussie Rules Mortgage" so I don't know if a similar mortgage is popular in Australia.

 

 

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An off topic post that was critical of moderation and discussed Israel has been removed.

 

All views on taxation are welcome in this thread but you may not, under any circumstances, contend that things will happen that are only conjecture and supposition and remain unproven. You also may not scaremonger and suggest that things may happen that have no basis in fact currently and about which there is no evidence. The tax threads are regarded as factual threads.

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3 minutes ago, JimGant said:

No, you said you didn't think TRD wlll require FIFO.  This is the type conjecture you admonished the folks to stay away from.

 

Anyway, if the rules were established in stone, certainly it would be inappropriate on this forum to recommend an illegal deviation from the established rules/laws. However, the current situation, where there are little to no rules in stone -- it does not seem inappropriate to suggest certain avenues of approach on how to deal with the current lack of guidance. And to say such guidance is suggesting an illegality -- when there's no existing law to violate -- is nonsensical. And many of my posts have been removed because of a suggested illegality. So, I believe letting well-thought out observations and suggestions, along with their pros and cons, should be allowed -- even encouraged -- on this forum.

The rules of this thread and the tax discussions are very clear, you have been involved in the thread long enough to understand that. You know that you cannot recommend tax avoidance measures and you know you can't refer to moderators in derogatory terms! You have done both those things recently and you have been admonished for doing so.

 

The existence of a law does not have to be proven in order for everyone to easily understand when suggestions are illegal. If you, a US CPA, have concerns about when something might be considered illegal, please ask beforehand. 

 

You may offer an opinion  as long as you state clearly that it is such but you must not state it as fact, unless it can be proven.

 

If you wish to continue any discussion on this subject, do it via PM, NOT here.

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10 minutes ago, JimGant said:

And actually I'd like to get your reasoning for LIFO vs FIFO vs averaging vs no guidance. Such conjecture, with the thought process behind it, can certainly be useful for folks trying to determine which avenue has the most savings in taxes -- and what might be the pitfalls of this avenue. Same for: Send a gift to Thailand and don't report it as assessable income on a Thai tax return. Right now, as there is no law or even semi-official guidance -- not sure why I wouldn't use this avenue. But, I believe your current position is we're -- for some reason -- not allowed to discuss the pros and cons. Irritating.

I have no opinion on either LIFO or FIFO that I wish to express here, neither have I ever had one as it pertains to Thai tax. If you have an opinion and you want to express it, feel free. Nobody has said you can't discuss the pros and cons of FIFO/LIFO, if that's what you want to do, this is simply something else that you have made up that has no basis in fact.

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In my case, the UK has a double tax treaty with Thailand, so my private pension is already taxed. But as it’s not enough to live on, I also have to bring over some savings each month. 
This is what worries me. How to prove payment of tax on savings earned over the years? How far to go back?

 

Luckily I will qualify for UK State pension this year which should offset my shortfall to some extent. At least for a few years, seeing as it won’t increase.

 

Also I am trying to see if I can pay any large upcoming bills using my UK credit card to reduce amount I have to bring in to Thailand. 
Will they be able to track that? I don’t know.

 

I wish the Thai gov’t would make an announcement clarifying all this as they must be aware of the uproar and confusion. Even the tax experts don’t seem to know what is what. Seems like another ‘cannabis law’ fiasco.

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3 minutes ago, phetphet said:

In my case, the UK has a double tax treaty with Thailand, so my private pension is already taxed. But as it’s not enough to live on, I also have to bring over some savings each month. 
This is what worries me. How to prove payment of tax on savings earned over the years? How far to go back?

 

Luckily I will qualify for UK State pension this year which should offset my shortfall to some extent. At least for a few years, seeing as it won’t increase.

 

Also I am trying to see if I can pay any large upcoming bills using my UK credit card to reduce amount I have to bring in to Thailand. 
Will they be able to track that? I don’t know.

 

I wish the Thai gov’t would make an announcement clarifying all this as they must be aware of the uproar and confusion. Even the tax experts don’t seem to know what is what. Seems like another ‘cannabis law’ fiasco.

1. - Copies of your UK tax return will prove the interest paid on UK savings.

 

2. - It's not a matter of whether the CC charges can be tracked but whether they represent assessable income or not, I and other believe it does but it's not something many people will report.

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48 minutes ago, Mike Lister said:

1. - Copies of your UK tax return will prove the interest paid on UK savings.

 

2. - It's not a matter of whether the CC charges can be tracked but whether they represent assessable income or not, I and other believe it does but it's not something many people will report.

Thank you. Maybe I should have worded it better, but I. Wasn’t talking about interest on the savings, but the savings themselves.

Having saved through my working life,  being retired for several years, and living in Thailand for eight, how does one go back to prove savings were from previous earnings and had already been taxed at source? 
Would the UK tax authorities even bother if asked?

 

Unless the Thai gov’t agrees not to tax anything prior to implementation of this rule, it is going to be a nightmare trying to sort all this out.

 

As for the CC. I disagree with you.
I look at it as a loan. If you don’t pay the full amount in time you get charged interest, and I wouldn’t be taxed using it in the UK as already taxed on the income used to repay.

Unless asked, I wouldn’t report it.

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