Category Archives:Legal

Amendments to the Foreign Business Act to be proposed to the Cabinet

investment2The Commerce Ministry’s Department of Business Development (DBD) will propose that the Cabinet modernize the Foreign Business Act (FBA) and get Thailand ready for the seamless ASEAN market.

The amendment will focus on concession in order to provide fair competition for Thai and Foreign Business Investors. Furthermore, this will facilitate business growth, and eliminate the nominee issues.

Under the amended law, there will be streamlining of business regulations and foreigners will find the Thai environment more conductive to investment.

In addition, Thailand will be capable of competing under the coming regional integration, which will allow investors from the ASEAN countries to own up to 70 percent of certain service businesses.

 

 

DSI Crackdown on Thai Nominee Shareholding

Crackdown on Thai Nominee Shareholding

The Department of Special Investigations (DSI) had a meeting about a crackdown on foreign businesses who practice Thai nominee shareholding. This crackdown is to effectively control Thai companies.

Their objectives are for the Aliens coming to the Kingdom of Thailand, to operate their businesses according to the rules and regulations.

For more information please visit : https://www.dsi.go.th/index

New Regulations for Visa Extension

New Regulations For Visa Extension

Effective 29th August 2014, the new regulations for Visa Extension or temporary stay in the Kingdom of Thailand are:

  1.  Foreign Nationals entitled for visa exemption entering with Tourist status will be allowed only one extension per visit and will not exceed 30 days from the additional stamp expiry date.
  2.  Foreign Nationals who overstay more than 90 days will be forbidden from entering the Kingdom of Thailand from 1-5 years.

For more details please visit : http://bangkok.immigration.go.th  or call 1111

 

Accounting and Financial Reports

What is a Financial Statement?

A Financial statement is a formal record of the financial activities of a business, person, or other entity presenting the results of operations and the financial position of the company.

Who shall have the duty to keep accounts?

A registered partnership, public limited company, or limited company established under a Thai law, a juristic person established under a foreign law engaging in a business in Thailand, and a joint venture under the Revenue Code shall have the duty to keep accounts, and must provide the bookkeeping for its business operations in accordance with the details, rules and procedures prescribed under the Accounting Act, B.E. 2543 (2000). Failure to provide bookkeeping or comply with the regulations shall be liable to penalty.

All companies in Thailand need to prepare and comply with the following:

-Monthly Financial Reports (Balance Sheet, Profit & Loss Statement)

-Withholding Corporate Income Tax Return (PND 3, 53)

-Withholding Income Tax Remittance Return (PND 54)

-Half-year Corporate Income Tax Return (PND 51)

-Value Added Tax Return (PP 30)

-Annual Corporate Income Tax Return (PND 50)

-Annual Financial Statement

-Accounting Transactions Record

What is a Balance Sheet?

A Balance Sheet is a financial statement that summarizes a company’s assets, liabilities and shareholders’ equity at a specific point in time. It’s called a balance sheet because the two sides balance out. A company has to pay for all the things it has (assets) by either borrowing money (liabilities) or getting it from shareholders (shareholders’ equity). These three balance sheet segments give investors an idea as to what the company owns and owes, as well as the amount invested by the shareholders.

Why do we need a Balance Sheet?

We can use this report to obtain a complete picture of the financial results and financial position of a business on the last date of the financial year. A balance sheet records the arrangement of money in a business. It shows the accounting value of all the company’s assets, liabilities and equity at one moment in time. In turn, this may lead to conclusions regarding the liquidity of the entity.  We can use the Balance sheet data to compute key indicators that reveal the company’s ability to meet its obligations.

When must a company make and submit a Balance Sheet?

The submission of financial statements shall be in accordance with the rules and procedures prescribed by the Directors-General of the Revenue Department and the Department of Business Development.

A company must make their balance sheets at least once every twelve months. Such twelve-month period constitutes the company’s accounting period or financial year. A newly established company should close accounts within 12 months from its registration. A qualified external auditor must certify the financial reports. Consequently, the officer must file hose reports with the Revenue Department and Department of Business Development every year.

One or more auditors must examine the balance sheets. The officer must then submit it for adoption to a general meeting within four months after its date. They also need to send a copy to every person entered in the register of shareholders at least three days before the general meeting. The company must also keep copies in their office during the same period for inspection by the shareholders.

Where the accounts or the documents relevant thereto are lost or damaged, the person having the duty to keep accounts shall notify the Chief Accounts Inspector or the Accounts Inspector of the loss or damage, in accordance with the rules and procedures prescribed by the Director-General, within fifteen days from the date of knowledge thereof, or the date such loss or damage ought to have been known.

What happens upon failure to submit the audited financial reports on time?

The company’s annual financial reports must be filed, along with its annual income tax return, with the Revenue Department and Department of Business Development, within 150 days after the end of its accounting period. Otherwise, the company is liable to a certain penalty or fine which may also be applicable to its responsible officer.

Can a company change its year-cycle of account?

Yes, by obtaining written approval from the Revenue Department’s Chief Accounts Inspector. Their officer needs to submit Form SorBorChor 4 together with other related documents.

ASEAN ECONOMIC COMMUNITY (AEC)

What is the ASEAN ECONOMIC COMMUNITY (AEC) about?

The ongoing intensive regional economic integration leads to the establishment of ASEAN Economic Community (AEC), a single regional common market of ASEAN countries by 2015.

The regional integration’s objective is to create by then a competitive market of over 600 million people with an approximate GDP of over 2 trillion USD in ASEAN countries: Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam.

The AEC has the goal of transforming ASEAN into a stable, prosperous, and highly competitive region with economic development, reduced poverty and socio-economic disparities.

 

What are the core elements of the AEC?

 1. Free flow of goods

Free flow of goods is one of the principal means to achieve the aims of a single market and production base. A single market for goods will also facilitate the development of production and networks in the region and enhance ASEAN’s capacity to serve as a global production centre or as a part of the global supply chain.

2. Free flow of services

Free flow of trade in services is one of the important elements in realising the AEC. There will be substantially no restriction to ASEAN services suppliers in providing services and in establishing companies across national borders within the region.

3. Free flow of investment

A free and open investment regime is key to enhancing ASEAN’s competitiveness in attracting foreign direct investment (FDI) as well as intra-ASEAN investment. Sustained inflows of new investments and reinvestments will promote and ensure dynamic development of ASEAN economies. Therefore all industries will soon open up for investment, phasing out the exclusions according to schedules. There will be immediate granting of national treatment to ASEAN investors with only a few exclusions. Moreover, there will also be streamlining of Investment process and procedures.

4. Freer flow of capital

Freer flow of capital will not only strengthen ASEAN Capital Markets, but also Development and Integration. Facilitates the flows of payments and transfer of current account transactions

5. Free flow of skilled labour

Free flow of skilled labor allows for managed mobility or facilitated entry for the movement of natural persons engaged in trade in goods, services, and investments, according to the prevailing regulations of the receiving country, primarily in order to support the free flow of services.

 

What are the benefits of the AEC?

The above described core elements will result in more regional cooperation. This will also improve the scale of efficiencies, dynamism and competitiveness of AEC-based companies.

AEC will enable easier movement of goods, services, investment, capital and people — ultimately, it will offer new ways of accessing new markets.

In the near future, all parts of the economic system in ASEAN countries, including the service sectors will be integrated into the ASEAN Economic Community.

The AEC in the context of its single market and free-flow policies, will definitely be an opportunity to gain greater comparative advantages. At the same time, to increase revenues by expanding markets and customer base inside ASEAN.

AEC-based companies will benefit greatly as various goods or services can be sold or provided without any additional tax in different countries, effectively creating a single market entity and production base for all ASEAN countries.

Thailand Customs Department Imposed Stricter Rules

Stricter Customs Rules by the Thailand Customs Department

In an effort to discourage smuggling of pre-ordered goods into the country, the Customs Department of Thailand has become stricter. Last July 1, the Customs office at Suvarnabhumi Airport had posted a sign instructing arriving passengers and crew members that each person can bring no more than 10,000 Baht worth of personal effects per entry into the country.  Such effects must not be for commercial purposes.  Provisions, food, dietary supplements, and cosmetics are no exemptions from import duty.   As set by the law, they only allow bringing in limited quantities of cigarettes, tobacco, spirits, and wine.  They do not consider souvenirs, items for charity, collectibles, and second-hand items as personal effects. There is a need to declare and pay appropriate duty for any brand-name items costing 10,000 Baht per piece.

Violators are liable to imprisonment of up to 10 years, a fine 4 times the value of their goods, and confiscation of the goods.

 

Information for Tourists

The representative from the related institutions together with more than 100 proprietors in Pattaya have joined the project to promote legal knowledge and the resolution of disputes in tourism cases held by Pattaya Provincial Court. They aim to improve the tourism cases in preparation for the AEC (Asean Economic Community).

The court recognizes the importance of protecting the rights of tourists when there is an involvement in a case, so that they receive the same fair treatment under the legal system as Thai citizens. This was the reason for the establishment of the Tourist Case Section (Civil and Criminal Case Units) on September 5th of last year following the joint decision of the Minister of Tourism and the Court of Justice reached after their meeting to push for the setting up of the tourism case section in the court.  The important mission of the section is to serve tourists who suffer damages or various incidents.  

The Pattaya Chief Justice said that, as at present the number of in-bound tourists is increasing yearly and as Thailand is soon joining the Asean economic community  causing a great influx of labour, capital, real estate, and industries, there are certain to be consequent  disputes especially, the dispute of tourists. We therefore need to improve and promote tourist case for peace and progress of the community.  Quite a few tourists fall victims. Some people are taking advantage of tourists when buying goods or services. Some become the excused of criminal elements in the criminal case. In order to boost their confidence about the safety, the private sector should understand the legal system and the procedure for protecting their rights.

 

Registration of Alien Workers

Following the political unrest situation in Thailand which caused division among the people, the National Peace and Order Maintaining Council has announced the policy to resolve issues and to return happiness to the people.

Mr.Komsan Ekachai, the Governor of Chonburi, said that Chonburi has been experiencing economic growth in such fields as agriculture, industry and  tourism, which have drawn a large number of both Thais and alien workers into the province’s workforce.

The Ministry of Labour and The Royal Thai Police have created an alien-workers supplying company, by asking the Ministry of Labour for registration of the company in order to clearly designate the channels through which alien workers are allowed to enter Thailand and prevent their illegal entry. In addition, a one-stop service system enables alien workers to register at each province’s employer offices. The system provides one-stop services for temporary stay in the Kingdom of Thailand to any qualified alien according to the Regulations of the Office of the Prime Minister Concerning the Establishment of the Visa and Work Permit Center B.E. 2540, as amended. There can be an extension of registration period upon request. After  the completion of the process, an alien worker will have ID evidence which can be in the form of an ID card that can be used when reporting to the registrar every 3 or 6 months so that their movement can be monitored.

Employers or proprietors with Myanmar, Lao and or Cambodian alien workers, both legal and illegal, must prepare a list of their alien workers for registration. An ordinary person has to bring a photocopy of their citizen ID card attached to the original. A juristic person has to bring a photocopy of their certificate of juristic person registration together with a copy of citizen ID card of their authorized signatory attached to the original. The documentation is to be submitted to the alien-workers supplying company in Chonburi, Pattaya, a municipal office, or a Tum Bon administration organization by 15th July 2014 at no expense.

For further information, please contact the Chonburi’s labour supplying office or call (038)398057 and (086)3398620 during normal working hours.

Trademark Registration in Thailand

What is a Trademark?

A Trademark is a recognizable sign, design or expression which distinguishes products or services of a particular source from those of others. The trademark owner can be an individual, business organization, or any legal entity. This entitles the owner to protection of his trademark for a period of ten (10) years from the application-filing date. However, this is renewable within 90 days before the expiration of each 10-year term. When an application for renewal is filed within the prescribed period, it shall be deemed registered until the Registrar orders otherwise. The renewal shall be in accordance with the rules and procedures prescribed in the Ministerial Regulations. The entire process takes approximately one year from the date of filing.  However, trademark protection begins on the day of the submission of the application.

Trademarks, collective marks, certification marks, and service marks may be registered in Thailand.

Service Mark

This is a special type of trademark that is used in connection with services instead of product. Businesses use service marks to identify their services and distinguish them from others’ services.

Certification Mark

It is a mark used by the owner in connection with goods or services of another person to certify the origin, composition, method of production, quality or other characteristics of such goods or to certify as to the nature, quality, type or other characteristics of such services.

Collective Mark

It means a trademark or service mark used by companies or enterprises of the same group or by members of an association, cooperative, union, confederation, group of persons or any other state or private organization

Thailand does not officially require registration of trademarks. However, you may consider its numerous benefits.

  1. Registering a trademark provides greater legal protection against counterfeiting and infringement. It protects a company’s name or logo and grants the trademark owner exclusive nationwide ownership of the mark.
  2. It deters others from using your trademark because it will appear in trademark search reports ordered by others. As a result, this will likely discourage others from proceeding with the registration of a similar mark; and
  3. It provides the trademark owner with greater remedies. It increases the likelihood of the successful filing of a dispute resolution policy from an infringer.

Most importantly, for a trademark to be eligible for registration, It must be distinct and it should not be similar or confusingly similar to a trademark registered by another person. It must not consist of any characteristics mentioned in Section 8 of the Thailand Trademark Act B.E. 2534 (with B.E. 2543 amendment). Lastly, it is necessary that the applicant or his agent have an office or address for communication by the Registrar in Thailand.

 

Estate Planning and Last Will and Testament

What is Estate Planning?

Estate planning is a process of anticipating and arranging the disposal of an estate and managing an individual’s asset base in the event of their incapacitation or death.  As part of an estate planning, drafting a Last Will and Testament is recommended.

What is a Thailand Last Will and Testament?

A Last Will and Testament is a declaration of intention by will, concerning dispositions as to your assets or other matters which shall take effect according to law after your demise.  The document will detail your assets in Thailand, such as property, bank accounts, vehicle, and personal valuable items, designating who shall inherit and control them according to your wish to prevent unnecessary complications and quarrels between family members.

Other than assets, what does a Last Will and Testament cover?

Your Last Will and Testament shall cover five important points:

1. Appointing an Executor or the person who will be in charge of settling and ensuring that your beneficiaries will receive their inheritance

2. Naming all the beneficiaries of your assets

3. Procedure on how the assets shall be transferred to your beneficiaries

4. How funeral must be arranged

 

What should I consider when selecting an executor for my will?

Overall, the executor will administer your estate and make sure that everything is according to the terms of your will.  Appointing a trusted executor is an important decision that needs thorough consideration.  The responsibilities of an executor include making sure all assets are accounted for, all existing debts and tax obligations are paid, and that remaining assets are distributed to the correct beneficiaries in accordance to your will.

Conflict of interest can be avoided by selecting an executor who is not a beneficiary or a business partner.  Most individuals tend to choose family members or other close friends or relatives to act as an executor; it is important that it is someone you can completely trust. Appointing someone as executor does not mean that the chosen individual must do everything themselves. Executors may hire others to help with various aspects of the process. If you don’t have a friend or family member with the necessary expertise, consider hiring a lawyer, accountant or similar type of professional to act as your executor.

What happens to my assets in Thailand if I don’t have a Last Will and Testament?

In Thailand, when a person dies without a Last Will and Testament, the intestate’s assets must be distributed in accordance with the law.  As stipulated in The Civil and Commercial Code Section 1629, there are six classes of statutory heirs in Thailand.

Each class is entitled to inherit in the following order:

1. descendants

2. parents

3. brothers and sisters of full blood

4. brothers and sisters of half blood

5. grandfathers and grandmothers

6. uncles and aunts

The right of a surviving spouse to share in the estate of a deceased spouse arises automatically from marital status. Spouses who are under separation do not lose the right of inheritance to one another as long as divorce between them has not been granted according to law.  Ordinances awarding such rights on a surviving spouse make the spouse a statutory heir.  Before any distribution of the estate to the relatives, half of the estate (Sin Somros) will belong to the spouse, if any, and the rest will be distributed accordingly.

How do I make a valid Thai Will?

A testator must be competent and at least 15 years of age.  You can make a will in any of the following forms:

• In Writing

It must be dated at the time of making the will, and signed by the testator before at least two witnesses present. The witnesses shall sign their names certifying the signature of the testator;

• By Holograph Document

The testator must write with his own hand the entire text of the document, the date and his signature.

• By Public Document

The testator must declare to a District Officer before at least two witnesses what dispositions he wishes to include in his will. The District Officer must note down such declarations and read it to both the testator and witnesses, all affixing their signatures after making sure that the statement written down corresponds with the declaration of the testator.

• Secret Document

The testator must sign his name on the document, close the document and sign across the place of closure.  He must present the document to a District Official with at least 2 witnesses and declare to them that it contains his testamentary dispositions.

It’s very important to observe the correct legal formalities when signing, amending, or revoking your Will.  If you fail to follow all of the specific formalities, then your Last Will won’t be legally valid.

I already have my last will and testament in my home country; do I need a different will for my assets in Thailand?

Different jurisdictions usually require different formalities for the wills. Having a will drafted in your home country to cover all your assets in Thailand may be troublesome to your family, especially in the event that the will might be invalid in Thailand courts should it not conform to the Thai law requirements.  We recommend that you prepare and sign a Thai Will on Thai territory to ensure that Thai rules regarding the form of your will apply.