Integrity Legal

Posts Tagged ‘Foreign Business Act’

19th August 2018

It recently came to this blogger’s attention that the Department of Special Investigations in Thailand have undertaken a raid on various offices of those reportedly engaged in the maintenance of corporate structures utilized for the sole purpose of allowing foreigners to enjoy use of Thai real estate. The text of the announcement from DSI was originally published in Thai. We have undertaken a translation of the announcement in order to provide clarity for what could be considered an important issue for expats in Thailand. The translation is below:

DSI in collaboration with the Institute of Communication Science and the Board of Investment are currently investigating a group of Law Offices in the Phuket, Suratthani and Bangkok area that seem engaged in ‘camouflaged’ corporate structures acting as nominees on behalf of foreign shareholders.

As per government policy to actively pursue foreign investors using Thai nominee companies to own land in order to protect the nation’s interests.  On the 15th of August 2018, Police Colonel Paisit Wongsmuang, the head of DSI; and Police Major Suriya Singhokmol, his second in command; in collaboration with The Institute of Communication Science and the Board of Investment obtained a warrant to search 4 offices as follows:

  1. The first team led by Piya Watnawarangul (special agent investigating civil embezzlement) searched the premises of the Office’s Phuket Branch located at 393/4-5 Moo 1 Soi Bantao 1 Srisuntorn Rd., Chengtalay Subdistrict Thalang District, Phuket.  The premises appeared to be the work place of the Thai Nominees and a suspected location for falsifying documents for the purpose of camouflaging nominee activities.
  2. The second team led by Worapoj Maihom, searched the premises of the Office’s accounting branch located at 123/9 Moo 5 Chengtalay Subdistrict Thlang District, Phuket.  The office appeared to provide accounting services for the Nominee companies.
  3. The third team led by Jakrapop Klinhom searched the premises of the firm’s Samui branch office located at 17/10 Moo 1 Taweeratpakdee Borpud Sub district, Koh Samu District, Suratthani .  The premises were apparently the work place of the Thai Nominees and a suspected location for falsifying documents for the purpose of camouflaging nominee activities.
  4. The fourth team led by Mr. Taweewat Surasit, searched the premises of the Bangkok Branch located at Rajanakarn Building, 3 Floor AA Sathorn Rd, Yannawa Subdistrict, Sathorn District Bangkok, and the work place of the Foreign Managing Directors.

The search yielded copies of documentation, computer data and hardware that will be used as evidence in court proceedings.

Additional information found at each premises showed that the foreign investors seemingly purchased over 80 plots of real estate, consisting of land, vacation homes and houses.

Sources also reveal that the firms seem engaged in nominee activities that allow a large number of foreign investors to buy and sell land in Southern Thailand such as Surat Thani, Pangna, Phuket and Krabi with such activities grossing over 2 billion baht per year.

The investigation has found that the group has used Thai employees to incorporate Thai companies.  These Thai Corporate Entities in turn are used to hold shares in other companies for the purpose of allowing foreign investors to buy land.  These activities are in violation of the foreign business act (1999).  Using Nominees to hold land on behalf of foreign persons or entities has a negative impact on national interests and the real estate industry.  DSI will continue to actively pursue and shutdown such activities.

Please note that the above translation should not be viewed as a definitive interpretation of the underlying announcement and is solely for informational purposes. It should also be noted that the matter has yet to be fully settled via adjudication and the final outcome of the case remains to be seen.

The reader of this posting should note that Thai authorities are becoming increasingly efficient and sophisticated in their law enforcement endeavors. This is clear from the increasing number of immigration raids and the heightened scrutiny of officers throughout the Thai civil bureaucracy on issues ranging from revenue assessment to traffic ordinances. Clearly, it is a time to be mindful not only of the formalities inherent in the letter of relevant laws, but the policy considerations which embody the spirit of those laws as well.

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11th July 2016

In a previous posting on this blog the issue of single person incorporation of Thai companies was discussed. Back in September of 2015 it was revealed that the officials with government offices such as the Ministry of Commerce and the Department of Business Development were reviewing the possibility of amending the existing corporate laws in Thailand so as to allow an incorporated entity such as a limited company to be owned by one individual person. This would be similar to legislation in countries such as the United States which allows individuals, acting alone, to set up structures such as limited liability companies on their own.

It recently came to this blogger’s attention that some new developments have taken place with regard to this topic. To quote directly from the website of The Nation Newspaper:

THE Business Development Department has reviewed a new draft law and added in the document that a foreign individual cannot register a business in the Kingdom. The move aims to prevent |foreign enterprises from competing against Thais in many businesses that should be preserved for Thais. The original draft, known as “one person, one company,” states only that a single person can register a business in Thailand.

As readers of this blog and website may be aware there are many provisions enshrined in Thai law designed to protect Thai enterprises from foreign competition in Thailand. Most notable is the Foreign Business Act which specifically designates the type of business activities which are restricted to foreign nationals. As the website of Coconuts Bangkok noted:

This addition to the draft is designed to keep foreign businesses from competing against Thai companies in the long list of industries that the government has deemed reserved for Thai nationals only.

The aforementioned list of industries is detailed in the provisions of the Foreign Business Act. Currently, Thai law requires that a limited company have at least 3 shareholders in order to be registered pursuant to Thai law. This proposed law would change those provisions. It appears that Thailand would be the third country in the Association of Southeast Asian Nations (ASEAN) to adopt this type of change while Malaysia is apparently reviewing similar legislation.

The final draft of this proposed law remains to be seen, but it seems logical to assume that easing of corporate regulation of Thai company structures will result in increased business activity.

It should be noted that pursuant to the terms of the US-Thai Treaty of Amity, it is possible for American citizens to own virtually 100% of their companies in Thailand notwithstanding the provisions of the Foreign Business Act. It remains to be seen how these changes to the law will impact the registration of so called Amity Treaty Companies.

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5th November 2015

During the month of October 2015, it came to this blogger’s attention that the Thai government began to heavily enforce regulations against those overstaying their Thai visa and those utilizing nominees in order to control companies in Thailand. In a recent article on the Khaosod English website it was noted that more than 9000 people were arrested and detained pending deportation for overstaying their visas. The article went on to note:

The penalties announced Sunday are identical to regulations announced by the immigration bureau last year that have been in effect since Aug. 17, 2014. Foreign nationals who remain in the country more than 90 days after their visa expires are to be banned for one year. Those who overstay for one year, three years or five years are forbidden from re-entering the country for three years, five years and 10 years respectively. If they don’t turn themselves in and are instead caught by police, those who have overstayed less than a year would be blacklisted for five years while those with over a year face a 10-year ban…

The penalties referred to above were apparently applied to those detained in the aforementioned roundup and it would appear that such measures are likely to be applied to overstayers in the future. For this reason it is strongly recommended that those wishing to stay in Thailand obtain a visa and leave within the specified period of validity unless a Thai visa extension is obtained. There are many types of Thai visa categories including business visas, retirement visas, O visas for family members of Thai nationals, and the greatly anticipated long stay tourist visa which is set to begin being issued in mid-November.

Meanwhile, Thai officials in the Ministry of Commerce seem to be implementing stricter enforcement of rules regarding the use of nominee shareholders in Thai companies. Under the Foreign Business Act, foreign nationals are not permitted to use Thai nominee shareholders in order to circumvent the restrictions on foreign ownership of Thai companies. Those caught violating this law can face fines or possible imprisonment. Apparently, officials with the Department of Business Development will be investigating certain companies to determine if nominees are in use. To quote directly from The Nation:

The 10 sectors to be inspected are food and beverage, tourism, property rental, the property trade, car rental, spa, handicraft and souvenir retail, Internet retailing, direct sales, and education consultants. Chainarong said that those sectors would be targeted because it was believed that a high proportion of their businesses were foreign controlled through the use of Thai nominees…

Clearly Thai regulators are becoming increasingly serious regarding the enforcement of Thai law in both the realm of immigration and business. It should be noted that American Citizens are permitted to own 100% of certain types of Thai corporations pursuant to the provisions of the US-Thai Treaty of Amity.

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30th July 2013

In a previous posting on this blog regarding partnerships in Thailand, Thai Ordinary Partnerships and Thai Registered Ordinary Partnerships were discussed. There is another type of partnership structure in Thailand which may be more familiar to those from Western countries: the Thai Limited Partnership. Limited Partnerships have been a method of structuring an enterprise in jurisdictions such as the United States, the United Kingdom, and the Commonwealth nations for quite some time. Meanwhile, jurisdictions in the Eurpoean Union allow for similar structures. Thailand was a relatively late jurisdiction when it came to allowing for use of such structures, but now it may be possible for promoters of a business to form this type of partnership.

A Thailand limited partnership generally consists of, at a minimum, at least one Managing Partner who manages the business and at least one Limited Partner. Depending upon the unique circumstances of a given business enterprise there could be one or more managing partners and one or more limited partners. Although managing partners are personally liable for partnership debts, limited partners are not persoally liable for partnership debts and are only personally liable for the their capital contributions, especially if said contributions have been removed, in whole or in part, or if said contributions were never submitted. It should be noted that limited partners may lose some degree of their limited liability if the limited partner engages in the managment of the partnership or allows his or her name to be used in the Limited Partnership’s legal name. Limited Partnerships in Thailand must register their partnership agreement with the Ministry of Commerce in the same manner as a Registered Ordinary Partnership. As a general rule, Limited Partnerships are taxed in much the same manner as Registered Ordinary Partnerships.

Limited Partnerships which include a foreign national may be subject to the provisions stipulated in the Foreign Business Act. Therefore, where a foreign national owns a majority interest in a Thai Limited Partnership the Partnership may need to apply for a Thai Foreign Business License. However, American Citizens wishing to structure a limited partnership in Thailand may be eligible to obtain an Amity Treaty Certificate for the partnership pursuant to the terms of the US-Thai Treaty of Amity. If a foreign national owns simply a minority interest in a Thai limited partnership as a limited partner, then the partnership may not be required to obtain a foreign business license. However, the foreign national would not be able to manage the limited partnership.

Limited partnerships are able to be converted into limited companies so long as such conversion complies with relevant Thai corporate law.

For information regarding Thai Limited Companies please see: Company Registration Thailand.

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9th July 2013

Those researching business and corporate entities in Thailand (sometimes referred to as Thai juristic persons) often come upon information pertaining to Thai partnerships. Partnerships in the Kingdom of Thailand are different from Thai limited companies and Thai sole proprietorships for a number of reasons. For example, Thai limited companies provide the shareholders with limited liability. This means that liabilities incurred by a Thai limited company do not generally flow through to the individual shareholders (that said, under some circumstances, directors of Thai companies may have some legal liability to the company itself). Depending upon the type of Thai partnership, the partners may or may not have limited liability. Thai Partnerships differ from Thai Sole Proprietorships for a number of reasons, but the most obvious difference is that Thai Sole Proprietorships, as the name suggests, are operated by one natural person.

In the Kingdom of Thailand, there are different types of partnerships: Thai Ordinary Partnerships, Thai Registered Ordinary Partnerships, and Thai Limited Partnerships. In this posting only ordinary partnerships and registered ordinary partnerships will be discussed as Thai limited partnerships will be discussed in a later posting.

Thai Ordinary Partnerships

Thai ordinary partnerships are sometimes referred to as unregistered partnerships. The name “unregistered partnership” may stem from the fact that Thai ordinary partnerships are not required to have a written partnership agreement and even where a written partnership agreement exists it is not required that the aforementioned agreement be registered. That being stated, ordinary partnerships are still required to register their existence as a business entity with the Thai Ministry of Commerce. However, notwithstanding the fact that an ordinary partnership has registered with the Ministry of Commerce, this type of registration should not be construed to mean that the partnership is a Thai registered ordinary partnership. All partners in a Thai ordinary partnership have unlimited liability for the acts of any of the other partners which occur in the course of the partnership’s business. Creditors of an ordinary partnership may make claims against the property of any of the partners and do not need to first make a claim against the assets of the partnership.

Thai Registered Ordinary Partnerships

Thai Registered Ordinary Partnerships must be registered with the Ministry of Commerce in the Kingdom of Thailand. When registering this type of partnership a copy of the written partnership agreement, information regarding capital contributions as well as managerial duties of the partners, and objectives of the partnership must be included in the application for registration. In the eyes of Thai law, a registered ordinary partership is viewed as a distinct entity separate and apart from the partners. However, the legal distinction between the registered ordinary partnership and the partners as individuals should not be construed to mean that the partners have limited liability. That stated, if a claim is to be made by a creditor against a Registered Ordinary Parntership, then the creditor must first seek to make their claim against the assets of the Registered Ordinary Partnership before making a claim against either of the individual partner’s assets.

There are significant differences in the way in which registered ordinary partnerships and ordinary partnerships are taxed in the Kingdom of Thailand. Therefore, those interested in establishing either of these types of partnerships are encouraged to contact a legal professional in Thailand to ascertain whether either of these types of structures are suitable.

It should also be noted that foreign nationals wishing to set-up a Thai Registered Ordinary Partnership or a Thai Ordinary Partnership may be barred from doing so pursuant to the provisions of the Thai Foreign Business Act. In some cases, a Thai Foreign Business License may be obtained depending upon the type of business the foreign nationals wish to undertake through use of a Thai partnership. American citizens wishing to set-up a Thai partnership (either a registered ordinary partnership or simply an ordinary partnership) may obtain certification for their proposed partnership pursuant to the terms of the US-Thai Treaty of Amity, provided that the proposed business activity is not restricted under the terms of the Treaty; and, upon being approved for a Treaty certificate, operate their partnership notwithstanding the provisions of the Foreign Business Act.

For related information please see: Thailand Company Registration.

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28th June 2013

Limited Companies in the Kingdom of Thailand

Thai Limited Companies are somewhat similar to limited liability companies in jurisdictions such as the United States, the United Kingdom, or the European Union. However, there are certain formalities which must be adhered to in order to be certain that a Thai company is properly registered. First, a name for the company must be reserved and approved by the Thai Ministry of Commerce and then three shareholders must be utilized in order to meet the requirements for Thai company registration. Meanwhile, depending upon the type of business or the presence of possible future foreign employees certain capital requirements must be met (those wishing to register a Thai Limited Company are encouraged to ascertain the exact amount of capital necessary for a certain type of business before taking steps toward registration). Foreign nationals wishing to register a company in Thailand should note that some types of business are restricted under the provisions of the Foreign Business Act. It should be noted that usage of Thai nominee shareholders to hold shares of a Thai limited company on a foreign national’s behalf solely for the purpose of avoiding conflict with the provisions of the Foreign Business Act is strictly prohibited. American Citizens wishing to register a Thai company or American Companies wishing to set-up corporate offices in Thailand may be eligible to receive certification under the provisions of the US-Thai Treaty of Amity and therefore be in compliance with the Foreign Business Act and other applicable Thai law as companies with Treaty of Amity certification are accorded “National Treatment”.

An issue that may be of interest to those weighing the option of registering a company in Thailand: the corporate tax rate  for small companies making over one million baht per year has been reduced from 23% to 20% as of 2013, according to the official wesite of the Revenue Department in Thailand.

Sole Proprietorships in the Kingdom of Thailand

A sole proprietorship is defined as a business enterprise in which one natural person is the owner. It should be noted that sole proprietorships, unlike Thai limited companies or Thai limited partnerships, provide no limited liability to the owner and therefore the owner’s liability with respect to those conducting business with the sole proprietorship is unlimited.  There are some possible tax benefits arising from operating a sole proprietorship since the sole proprietor may be taxed progressively in much the same way as a natural person. In certain cases, a sole proprietor could opt to be taxed based upon gross receipts, minus a standardized deduction. However, those interested in this type of structure are well advised to contact professionals in order to ascertain further information about whether this type of structure can be utilized for one’s proposed business and the possible tax liabilities of such a proposition.

It should be noted that a sole proprietorship may not be feasible for most foreign nationals wishing to conduct business in Thailand pursuant to the provisions of the Foreign Business Act. It may be possible to obtain a foreign business license for a sole proprietorship in Thailand and thereby maintain compliance with the Foreign Business Act, but such licenses are examined on a case by case basis based upon the type of activity the sole proprietor wishes to conduct. For American Citizens it may be possible to obtain certification for a Thai sole proprietorship pursuant to the provisions of the US-Thai Treaty of Amity.

For related information please see: Thailand Company.



 

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24th May 2009

The US-Thai Treaty of Amity is an agreement between the Kingdom of Thailand and the United States of America that provides benefits for Thai investors and businessmen in the USA and also provides economic benefits to Americans in Thailand. The most important benefit conferred by the Treaty of Amity is the right of Americans to form a Treaty of Amity Company. A Treaty of Amity Company is a corporate structure similar to a Thai limited company.

The major difference between a Thai limited company and an Amity Treaty company is the fact that an Amity Company can be one hundred percent owned by non-Thais provided the owners are American Citizens. Under Thai law there must be at least three shareholders, but one shareholder could virtually own the Amity Company outright by owning 99% of the shares in the company.  

The content written heretofore begs the question: why is American ownership such a big deal? For those unfamiliar with the Thai legal system, a statute known as the foreign business act stipulates that a Thai company must either be majority Thai owned or an application for a foreign business license will be necessary. Foreign business licenses are somewhat difficult to obtain. That being said, the Amity Treaty preceeds the Foreign Business act and its provisions supercede the foreign business act.

A major issue regarding the Treaty is the fact that it only applies to Americans. No other group of foreign nationals is accorded the same level of economic protection as that conferred upon Americans doing business in Thailand under the Thailand Treaty of Amity. As a result, many prospective business owners from nations other than the USA often ask if it is possible to utilize nominee American shareholders in a Thai company in order to meet the technical requirements of the US-Thai Treaty of Amity.

In theory, such a scenario was once possible. However, amendments to the foreign business act have made nominee shareholders expressly illegal. Also, the Foreign Business Office of Thailand has determined that only an American or a Thai is allowed to be the Managing Director of a company with protection under the US-Thai Amity Treaty.  The upshot of both of these rules is that, as a practical and legal matter, only Americans or Thais can own a majority position of a Thai company with Treaty benefits.

For more details about US-Thai Economic Relations please see: Amity Treaty Thailand

(Nothing herein is meant to act as in the place of competent legal advice from a licensed attorney. No Attorney-Client relationship shall be formed between the writer and any reader of this piece.)

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