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Thailand – New Law on Taxation of Digital Assets

Thailand – New Law on Taxation of Digital Assets

This report covers Thailand’s efforts to statutorily define the tax status of businesses and individuals that deal in digital assets.

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On May 10, 2018, Thailand’s Emergency Decree on Digital Assets Business 2561 (“Decree on Digital Assets”) was issued, aiming to control Digital Assets Businesses which include the following:

  • Digital assets trading/exchange centers;
  • Digital assets brokerages;
  • Digital assets traders; and 
  • Other businesses related to digital assets as the Minister of Finance prescribes based on the Thailand Security Exchange Commission’s (“SEC”) recommendations.

At the same time, Emergency Decree No. 19 amending the Thai Revenue Code (“Decree on Taxation”) was issued to include income and gains derived from, or on disposal of, digital assets in assessable income, as well as to add a withholding tax requirement.1

WHY THIS MATTERS

For taxpayers investing or trading in digital assets like Bitcoin and other cryptocurrencies, these recent decrees offer some much-needed clarification, defining their trading/investing activities for purposes of Thailand’s tax law and clarifying what their tax liability will be.

However, for nonresident taxpayers applying treaty provisions, it is currently unclear how the Revenue Department will apply tax treaties to their income and gains derived from digital assets.

Taxpayers and their professional tax advisers should familiarize themselves with the new policies and take steps to foster their compliance. 

Meaning of Digital Assets

The Decree on Taxation does not provide the definition of a “digital asset”; however, the term is defined in the Decree on Digital Assets to mean “cryptocurrency” and “digital tokens.”

“Cryptocurrency” means an electronic data unit which is created on a system or electronically with the purpose of being used as a medium of exchange for goods, services, or other rights, or exchange between digital assets, and shall include the other electronic data units as prescribed by the SEC’s Notification (to come).

“Digital token” means an electronic data unit which is created on a system or electronically with the purpose to determine the right of a person to participate in an investment, project, or business; or to determine the right to acquire goods, services, or other specific rights under an agreement between the issuer and the holder, and shall include other rights pertaining to the units as prescribed by the SEC’s Notification.

Assessable Income

The Thai Revenue Code classifies assessable income into eight categories under sections 40(1) to 40(8).  The Decree on Taxation adds two sub-categories of income under section 40(4):

  • The share of profits or other similar benefits derived from holding or the processing of digital tokens (section 40(4)(h)), and 
  • Benefit derived from transfer of cryptocurrency and digital tokens which exceeds the cost of the investment (section 40(4)(i)).

 

Withholding Tax

Section 50 of the Revenue Code specifies withholding tax obligations in respect of payment of income to an individual.  The Decree on Taxation adds the withholding tax requirement on assessable income derived from digital assets that fall under sections 40(4)(h) and 40(4)(i) discussed above.  The withholding tax rate is 15 percent. 

In the context of an individual, a 15-percent withholding tax will be imposed on the two new sub-categories of income for both resident and nonresident individuals.  A Thai resident will be subject to withholding tax under new section 50(2)(f), whereas a nonresident individual will be subject to withholding tax under existing section 50(2)(a).  This section imposes a 15-percent withholding tax on income derived by nonresident individuals under section 40(4), which will now include these two new sub-categories of assessable income.

KPMG NOTE

Individual taxpayers will also be required to include such income as assessable income upon filing their annual personal income tax (“PIT”) returns.  The 15-percent withholding tax should be creditable against their final tax liability.  Without the option to exclude such income from the annual PIT return (which, for example is available for dividend income received by a Thai tax resident), this could result in the individual taxpayer paying more than 15-percent tax on income from digital assets where his/her marginal tax rate exceeds 15 percent.

For nonresident taxpayers, it is important to consider the application of tax treaties as relief from the Thai withholding tax may be available.  It is currently unclear how the Revenue Department will apply tax treaties to income and gains derived from digital assets.  Ultimately, the outcome will depend on the specific facts and circumstances, which should be carefully analyzed by taxpayers.

FOOTNOTE

1  To view the new decree (in Thai), click here (PDF 53 KB).

The information contained in this newsletter was submitted by the KPMG International member firm in Thailand.

© 2018 KPMG Phoomchai Tax Ltd., a Thailand limited liability company and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.

Flash Alert is an Global Mobility Services publication of KPMG LLPs Washington National Tax practice. The KPMG logo and name are trademarks of KPMG International. KPMG International is a Swiss cooperative that serves as a coordinating entity for a network of independent member firms. KPMG International provides no audit or other client services. Such services are provided solely by member firms in their respective geographic areas. KPMG International and its member firms are legally distinct and separate entities. They are not and nothing contained herein shall be construed to place these entities in the relationship of parents, subsidiaries, agents, partners, or joint venturers. No member firm has any authority (actual, apparent, implied or otherwise) to obligate or bind KPMG International or any member firm in any manner whatsoever. The information contained in herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation.

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