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Thailand’s attempt to extend its reach to overseas e-service providers

Monday 15 November 2021

Nuanporn Wechsuwanarux
Chandler MHM Limited, Bangkok
nuanporn.w@mhm-global.com

Panupan Udomsuvannakul
Chandler MHM Limited, Bangkok
panupan.u@mhm-global.com

Introduction

The borderless nature of the digital economy and electronic transactions has always been a challenge for law makers and enforcement bodies where their authority is generally limited to a jurisdictional territory. This is also true for Thailand. However, recently, we have seen many developments indicating that the Thai governmental authorities are trying to tackle this challenge.

Imposing VAT on overseas e-service providers

Following international trends, e-service providers outside of Thailand are officially subject to VAT in Thailand from 1 September 2021. The system was implemented based on the Organization for Economic Co-operation and Development’s (OECD) International VAT/GST Guidelines, which aim to improve the efficiency of VAT collection from foreign e-service providers.

Offshore e-service providers need to register as VAT registrants via the online system of the Thai Revenue Department within 30 days from the date when income from such e-service in Thailand exceeds THB1.8m (approximately US$55,000) per year.1 E-service providers can voluntarily register for VAT even if income from their services does not exceed THB 1.8m.2​​​​​​​

If the e-service provided by a service provider outside Thailand is used in Thailand by a recipient (ie, a user and/or purchaser) who is not a VAT operator, the foreign e-service provider is liable for VAT without being able to claim the input tax.3 If the e-service is provided via an electronic platform, the platform operator is liable for the VAT imposed for the provision of the service.4

Thai SEC’s criminal complaint against an overseas cryptocurrency trading platform

In July 2021, the Thailand Securities and Exchange Commission (Thai SEC) - one of the early movers in launching a regime to regulate cryptocurrencies - filed a criminal complaint against an overseas cryptocurrency market platform for operating digital asset exchange businesses without license, with the Royal Thai Police for violating the Emergency Decree on Digital Asset Businesses BE 2561 (2018) - the regulation that covers cryptocurrency trading platforms in Thailand.5 According to the SEC’s announcement, the criminal complaint filing took place after the platform provider failed to submit a response to the SEC’s warning letter requesting a written response. As a precedent case, the SEC further emphasised that digital asset businesses in Thailand are regulated to obtain relevant licenses, under the referred Emergency Decree, and only providers who have obtained such licenses are allowed to operate in Thailand.

Draft royal decree regulating digital platforms

The Ministry of Digital Economy and Society is considering a draft royal decree that aims to regulate digital platform services providers. The current draft includes a mechanism whereby overseas platform providers are required to appoint a representative in Thailand as a point of contact for the Thai Government. This follows the same concept included in the Thai Personal Data Protection Act (PDPA), in which overseas operators who are subject to the Thai PDPA are required to appoint a representative in Thailand.

Conclusion

Based on the three aforementioned recent developments, the Thai governmental authorities are trying to tackle the challenges of the borderless nature of the digital economy with the aim of protecting Thai consumers, and to level the playing field between Thai and overseas operators. These themes are not new internationally but are a relatively new trend in Thailand.

Notes

1     The Revenue Department, ‘A Guide on VAT on Electronic Service Provided to Non-VAT Registrants in Thailand by Non-resident Business Person’ (2021)’, 2. Available at www.rd.go.th/fileadmin/download/eService.pdf, accessed 3 November 2021.

2     Ibid 11.

3     Section 82/13, para 2 of the Revenue Code.

4     Section 82/13, para 3 of the Revenue Code.

5     SEC News No 125/2021 at www.sec.or.th/EN/Pages/News_Detail.aspx?SECID=9017.