Thai Businesses with Foreign Owners

 

thailand-345514_640This past week I met with a representative from a European company that sold vitamin products. The company has established branch offices in multiple countries. They were interested in opening a small office in Thailand. Thailand is an attractive place for retail stores. There is a large upper middle income population with disposable income and an established consumer culture.

However, establishing a business in Thailand is not a simple matter. There are many restrictions on foreigners operating in Thailand. The Foreign Business Act restricts foreign owned companies from most professional occupations and business services. In addition, foreign owned businesses are generally not allowed to own land.

For non-Thais who want to do business in Thailand, there are a few options. Some foreign companies form a partnership with Thai nationals to form a Thai company. A Thai company requires that a Thai national or company owns 51% of the shares of the company. This means that foreigners can only own up to 49% of a Thai company.

In Thailand, the most popular form of company is a private limited company. In a private limited company, shareholders have limited liability while the directors have unlimited liability. Thai private limited companies require a minimum of three promoters and minimum of 1 million baht of capitalization.

The benefits of a Thai company are that they are not restricted from engaging in most types of business services. In addition, Thai companies can own property. However, foreign owners need to be careful who they choose to be their Thai partner since they can lose management control of the company because they are not majority shareholders of the Thai company.

The 49% foreign ownership limit for certain business activities can be exceeded or exempted if a Foreign Business License is granted. A Foreign Business License is granted to foreign owned businesses that are unique and do not compete with Thai businesses. Applications for a foreign business license are evaluated on whether the business will violate Thai law or morals and whether the business will be beneficial to the economy of Thailand. The process of obtaining a foreign business license is time consuming and complicated but it allows foreign businesses to operate in Thailand.

The negatives of a obtaining a foreign business license is that there is an increased capitalization requirement of 3 million baht per service and the capitalization must be fully paid up prior to operating. In addition, foreign owned businesses are not allowed to own property and there are additional regulatory requirements when obtaining licenses, opening bank accounts, and doing business in Thailand.

Many foreign own businesses try to bypass Thai regulations by having Thai nominee shareholders. Thai nominee shareholders are unrelated third parties who are registered as shareholders but do not have any real financial interest in the company. They are used to secure the privacy of the actual owners of the company.

The use of nominee shareholders is generally legal unless nominee shareholders are used to by foreign nationals to circumvent the Foreign Business Act and the Land Act. Businesses that use nominee shareholders come under additional scrutiny in the registration of their company and licensure. Foreign businesses who use Thai nominee shareholders to bypass the company?s true owners may have difficulty protecting their interests if there is litigation.

There are legal work arounds which protect the interests of foreign owners without the need of Thai nominee shareholders. While every type of business has different requirements, some of the legal ways of maintaining management control of a company are through the use of preference and ordinary shares, controlling the number and powers of the board of directors, and through internal company regulation. These methods are not a guarantee that foreign owners will not lose management control but it helps to reduce the chances of that occurring. The most important reason for properly registering a company is to protect the company?s legal rights and to do business with confidence without fear of being exposed.

Mr. Robert R. Virasin is a licensed U.S. Attorney and managing director of Virasin & Partners. Ms. Parthomrat Punyacharoenwat is a licensed Thai Attorney whose primary focus is corporate and tax law. They can be reached at info@virasin.com or at www.virasin.com.

 

 

L-1 Intracompany Transfer

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The L-1 Intracompany Transfer visa allows multinationals companies to send their key personnel to their U.S. operations temporarily and permanently. Managers, executives, and workers with specialized knowledge can obtain the L-1 classification and work in the United States for a period between five and seven years.

The United States requires that the employee must have worked at least one year out of the last three years for the multinational firm or affiliate or subsidiary and who seeks to render services for the same employer, subsidiary, or affiliate as a manager, executive, or employee with specialized knowledge.

The U.S. office must have a corporate relationship with the foreign company abroad and there must be concrete evidence of the relationship. The U.S. entity must have physical office space in the United States and the office space must be an appropriate sized space to do business.

An L-1 status holder can bring their spouse and minor children to join them under the L-2 visa. The L-2 spouse is allowed to apply for employment authorization and can work anywhere in the United States. The L-2 minor child can attend U.S. public schools but cannot apply for employment authorization.

L-1 Managers and executives are given priority status for permanent residence. Managers and executives can bypass the stringent Permanent Labor Certification process and the U.S. employer can file an employment immigration petition directly with the USCIS.

L-1 Specialized Knowledge employees must submit a permanent labor certification application with the Department of Labor with evidence that there are no U.S. residents or citizens who are able to fulfill the employment requirements. Upon receiving an approved certification from the Department of Labor, the U.S. employer can submit an application for immigration for the employer.

The process for applying for an intracompany transfer visa is complicated and time consuming. Prior to starting the process, it is important to speak to an experienced professional. Contact our office at info@virasin.com.

Branch Office

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Multinational companies who want to extend their reach into Thailand without creating a separate legal entity. The have two options for entering the Thai market. They can form a branch office or a representative office. Both are governed by the Foreign Business Act but they serve two different functions.

Branch Office

Branch offices can operate in a broader range of activities than representative offices. The Foreign Business Act treats a branch office as a mere extension of the head office. They are considered as part of the same legal entity as its head office and can engage in any and all activities within the head office’s scope of business.

A branch offices is not a separate legal entity but will have to obtain a foreign business license to legally operate and earn profit in Thailand. Branch offices have to obtain a taxpayer ID and register for VAT. In addition, the liabilities of the branch office is not limited to the branch office but also extends to the head office. Branch offices are treated the same as a limited company in the application of work permits for foreign employees.

A foreign branch office is considered like a foreigner and is subject to the Foreign Business Act. The branch is also subject to restrictions placed on foreigners under the Foreign Business Act. A branch office may be required to obtain a Foreign Business License depending on the type of business activities.

The decision of whether the foreign multinational company should open a branch office should be made after careful consultation with an experienced professional. Contact us at info@virasin.com.

Representative Office

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Multinational companies who want to extend their reach into Thailand without creating a separate legal entity. The have two options for entering the Thai market. They can form a branch office or a representative office. Both are governed by the Foreign Business Act but they serve two different functions.

The primary function of a representative office is to provide information and assistance to their foreign head offices. Representative offices in Thailand are not allowed to engage in profit seeking activities or act on behalf of third parties. They are not allowed to receive orders or to offer to negotiate a sale with any person or juristic person. Because of this fact, representative offices are exempt from Thai corporate income taxes or registering for the VAT.

The scope of their activities are limited to non-trading activities such as:

  1. Search and procuring information for the overseas headquarters
  2. Ensuing the quality and quantity of the product ordered by the headquarters
  3. Advise the head office on products offered by the head office to local distributors or consumers
  4. Disseminate news or updates regarding new products or services offered by the head office
  5. Reporting the economic or political situation in Thailand to the headquarters.

Representative offices are meant to only provide support to the head office and engage local customers. Exceeding the scope of activities can result in the income of the parent or affiliated companies being considered to be earned in Thailand and be subject to Thai taxation.

As a foreign business, a representative office will have to obtain a Foreign Business License. Representative Offices can also support a work permit for a foreign national.

Contact our office at info@virasin.com.

Due Diligence and Purchasing Property in Thailand

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The experience of the lessees who lose their homes and investment is an a fraudulent property provides clear examples of why due diligence is required when purchasing property. It is important for purchasers to be aware of the potential legal issues with their property purchases. For foreigners attempting to purchase or lease property or buildings in Thailand, it important to understand Thailand’s restrictions on foreign ownership of property.

Due Diligence goes beyond the terms of the contact. It is necessary to complete a title check, to physically inspect the property, review government permits, and review liens on the property. In addition, they need to complete a background check on the property developer and seller. The complex method of registering property creates situations where fraud can easily take place.

Title Search

A Title search is important prior to purchasing property or entering into a long-term lease. Condominium development projects may have to go heavily into debt to start development. It is necessary to ensure that the property does not have any liens or mortgages on the property. Liens or mortgages attached to a property may make the property unsellable.

Before placing a deposit on the property, buyers should search and review the legal documents pertaining to the property at the government land office. Each type of land title confers different property rights. There Tor Bor Tor Hok which was essentially squatter claims to a property to Chanote Title which is a true title deed that allows a property to be transferred or sold. There are many other types of property rights in between. In addition, there may be easements or appurtenances that confer rights to third parties over portions of the property.

 

Physical Inspection

An independent surveyor should inspect the property to see if the property is connected to a public road. The boundaries of the land should be clear and the title deed accurately reflects the actual boundaries. Access from public roads to the property will affect the property price. If there isn’t a direct access to a public road, the owner can legally force adjacent property owners to provide access but there will be legal costs and problems with neighbors.

In addition, there should be a review of the local zoning ordinances to see what will be built in nearby lands. A view of the beach or mountains might be blocked by a planned tall resort hotel, a large super mart, or a loud highway. The property value for property with an uninterrupted view of the ocean or the mountains may decline if the view is blocked.

 

Building Permits Review

It is important to ensure that the developer or seller has approved building permits and permission for development. Due diligence requires a review of the government filings to ensure that the type of development does not conflict with local restrictions in the area.

There have been recent news of condominium complexes and resorts being torn down because they encroach on national parks or government protected lands. An Environment Examination Report of the property can confirm that the property is being developed in accordance of environmental regulations.

Seller Background Review

The condominium project in Phuket is an example of the dangers of a developer who is not properly funded. There are also circumstances where people claim to own property which they do not actually own. In order to reduce the potential for fraud or abandoned projects, it is important to review the credentials of the seller or property developer.

The individual sellers and developers must be identified. If the developer or seller is a corporation, it is important to review the credentials of the primary shareholders of the company. The property developer and seller’s financial and criminal background should be checked. The property owners and developers names should be crossed checked with check names in court records for ongoing or past litigation. Litigation against the property developers and sellers is a sign of past or current problems.

Due diligence requires a visit to the seller or property developers past projects or sales. The buyer should review the maintenance condition of the project and interview the current residences for any problems with the seller or ongoing issues with the property. The buyer should review the satisfaction level of the current owners. While not all projects are perfect, the investigation may reveal situations which can help the buyer bring up potential after sale concerns during the contract negotiation.

Thai Property Laws

Foreign ownership of property is complicated. The laws create hurdles for non-Thais to own property in Thailand. Under Thai law, foreign nationals are not allowed to outright own land in Thailand. The foreign national may lease the property but the lease cannot exceed thirty years. If the terms of the property contract says the lease is more than thirty years, the term will be reduced to thirty years. The lease can contain a renewal option for another thirty years but there may be problems with the renewal.

There may also be complications with family law and ownership of property in Thailand. When the foreign national is married to a Thai citizen, there may be some benefits during the marriage and problems if there are a divorce. The property can be purchased in the name of the Thai spouse but if there is a divorce, the foreign national may lose the property. There will also be issues with inheritance if the foreign national wants to transfer property such as a condominium to a non-Thai person.

Before embarking on the purchase of Thai property, it is in the buyer’s best interest to seek counsel of a disinterested English speaking Thai lawyer who can discuss Thai laws and regulations as it pertains to the buyer’s specific situation. In addition, a Thai attorney can review the contract terms and negotiate with the seller or property developer for changes to the purchase contract. A property contract is required to be in Thai. An English translation is allowed but the Thai version controls in court.

Purchasing property in Thailand is a complex process. If a foreign national wants to purchase property, the buyer should seek the assistance of a non-interested, knowledgeable, and experienced professional to navigate them through the process. Be careful of guidance by someone who has a personal interest in the sale of the property. They may not have your best interest in their mind.

Treaty of Amity

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The United States-Thailand Treaty of Amity allows the U.S. citizens and businesses the ability to establish a company or branch office in Thailand on the same basis as a Thai company. There are restrictions on certain types of business activities that U.S. and foreign citizens may not engage in. These types of business include owning land, communications, inland transportation, banking, agriculture, or the exploitation of land or other natural resources.

To receive protection under the Treaty of Amity, the U.S. citizen or the U.S. entity must register with the Department of Commercial Registration in the Ministry of Commerce as an American owned and controlled business. The shares of the entity must be 51% held by Americans and a minimum of 50% of the directors must be Americans.

The Treaty of Amity does not grant Americans unrestricted freedom to work in Thailand or to live in Thailand. Americans have to obtain entry visa and work permits just like other foreign nationals. In order to obtain work permit for the U.S. citizen or foreign nationals, the entity must be a partnership or a limited company. In addition, they are required to have a minimum capital requirement of 2 million THB if the business is not restricted by the Foreign Business Act and 3 million THB if the business is restricted.

A partnership, branch office, joint venture, or limited company are required to submit the following documents to the U.S. Commercial Services at the U.S. Embassy in Bangkok to be notarized. There may be additional documents required depending the specific type of entity.

  1. Articles of Incorporation
  2. Company Bylaws
  3. Affidavit of a Corporate Officer verifying the company information, shareholder nationality, and number of shares.

After the documents are certified by the U.S. Commercial Service, the documents are submitted with the registration form at the Department of Commercial Registration. Ownership can be transferred but the company will have to remain a U.S. majority shareholder and with a majority U.S. board of directors in order to qualify for the benefits under the Treaty of Amity.

Foreign Business License

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The Foreign Business Act of 1999 governs the ownership of Thai businesses by foreign nationals. Different rules apply to foreign owned businesses and Thai owned businesses. A foreign owned business is defined as a business with over 49% foreign ownership. Under Thai law, a foreign national can only be majority owner of business operation that is not prohibited by the Foreign Business Act, authorized by the Board of Investments, or allowed by bilateral treaty agreements.

The Foreign Business Act restricts the activities which foreign owned business can conduct business. The FBA list three categories of controlled business activities. The first category are businesses which foreigners are barred from entering because of special reasons and they cannot get special permission from the government to enter into those businesses. These types of businesses are restricted only to Thai nationals. The businesses are as follows:

Prohibited Foreign-Owned Industries

  1. The Press, radio broadcasting station or radio and television station business
  2. Rice farming, plantation or crop growing
  3. Livestock farming
  4. Forestry and timber processing from a natural forest
  5. Fishery, only in respect of the catchment of aquatic animals in Thai waters and specific economic zones of Thailand
  6. Extraction of Thai medicinal herbs
  7. Trading and auction sale of antique objects of Thailand or objects of historical value of the country
  8. Making or casting Buddha Images and monk alms?bowls
  9. Land trading

The second category are industries which are vital national interests. They are generally related to national security, Thai arts, or national resources. Foreign owned businesses must get a license from the Minister of Commerce with approval from the Cabinet to operating in Thailand. The following businesses fall under the second category:

Businesses related to National Safety or Security

  1. Production, distribution and maintenance of:
    1. firearms, ammunition, gun powders and explosives;
    2. components of firearms, ammunition and explosives;
    3. armaments, ships, aircraft or vehicles for military use;
    4. equipment or components of all types of war materials
  2. Domestic transportation by land, water or air, including domestic aviation

Businesses Having Impacts on Arts, Culture, Traditions, Customs and Folklore Handicrafts

  1. Trading of antiques or artistic objects that are artistic works or handicrafts of Thailand
  2. Production of wood carvings
  3. Silkworm raising, production of Thai silk yarn, weaving of Thai silk or printing of Thai silk patterns
  4. Production of Thai musical instruments
  5. Production of gold ware, silver ware, niello ware, bronze ware or lacquer ware
  6. Production of crockery or porcelains representing Thai arts and culture

 

Businesses Having Impacts on Natural Resources or the Environment

  1. Production of sugar from sugar cane
  2. Salt farming, including non-sea salt farming
  3. Production of rock salt
  4. Mining, including rock blasting or rock crushing
  5. Timber processing for production of furniture and utensils

The third category of businesses have been designated as activities which Thai nationals are not ready to compete with foreigners. Foreign owned businesses can operate in these business categories with permission of the Ministry of Commerce and an application for a Foreign Business License. The following is a list of the businesses activities in category three with a catch-all in number 21 (Other service businesses):

Businesses Thai Nationals are Not Ready to Compete with Foreigners

  1. Rice milling and production of flour from rice and economic plants
  2. Fishery only in respect of the hatching and raising of aquatic animals
  3. Forestry from a grown forest
  4. Production of plywood, veneer wood, chipboards or hardboards
  5. Production of lime
  6. Provision of accounting services
  7. Provision of legal services
  8. Provision of architectural services
  9. Provision of engineering services
  10. Construction, with the exception of:
    1. Construction of structures for delivery of infrastructure public services in the sphere of public utilities or transportation requiring the use of special apparatuses, machines, technology or expertise, with the minimum capital of five hundred million Baht or upwards from foreigners;
    2. Construction of other types as prescribed in the Ministerial Regulation
  11. Brokerage or agency businesses, with the exception of:
    1. being a broker or an agent in the sale or purchase of securities or in services related to futures trading of agricultural commodities or financing instruments or securities;
    2. being a broker or an agent in the sale, purchase or procurement of goods or services necessary for the production or the provision of services amongst affiliated enterprises;
    3. being a broker or an agent in the sale or purchase, procurement, distribution or acquisition of domestic and foreign markets for the distribution of domestically manufactured or imported goods, which is in character the operation of international trade, with the minimum capital of one hundred million Baht or upwards from foreigners
    4. being a broker or an agent of other types as prescribed in the Ministerial Regulation
  12. Sale by auction, with the exception of:
    1. a sale by auction which, in character, involves international bidding of items other than antiques, objects of antiquity or artistic objects that are artistic works or handicrafts or objects of antiquity of Thailand or of historical value of the country;
    2. sales by auction of other types as prescribed in the Ministerial Regulation
  13. Internal trade related to traditional agricultural products or produce not yet prohibited by law
  14. Retail sale of goods of all types with the total minimum capital in the amount lower than one hundred million Baht or with the minimum capital of each store in the amount lower than twenty million Baht
  15. Wholesale of all types with the minimum capital of each store in the amount lower than one hundred million Baht
  16. Advertising business
  17. Hotel business, with the exception of the hotel management service
  18. Guided touring
  19. Sale of food and beverages
  20. Cultivation, propagation or development of plant varieties
  21. Other service businesses, with the exception of service businesses as prescribed in the Ministerial Regulation

There are exemptions available for foreign businesses. The Board of Investments will allow certain business to engage in category 2 and category 3 activities if they have been designated promoted activities. Nationals of certain treaties such as the United States, Japan, Australia, and ASEAN may be accorded the same status as Thais in a certain number of listed business activities. The Thai government may also provide a temporary permit for a foreign owned companies to operate in a restricted business activity.

The process of forming a company in Thailand is complex with many restrictions. It is important that you contact a knowledgeable Thai corporate attorney to assist you with the process.