Tax Newsletter NOVEMBER 2023

 Tax Newsletter

Dharmniti Law Office Co., Ltd.

Issue No. 148, in November 2023

Tax Law Updates

     1. The criteria, procedures, conditions, and duration of an income tax and value-added tax exemption relating to the transfer of digital tokens for investments offered to the public

     The Notification of the Director-General of the Revenue Department (Issue No. 52) sets out the criteria, procedures, conditions, and duration of an income tax and value-added tax exemption relating to the transfer of digital tokens for investments offered to the public, in compliance with the operation of digital asset businesses law.

     For more details, please see http://bit.ly/48pYCxn

     2. The qualifications, criteria, procedures, and conditions for the registration of tax agents

     The Revenue Department has issued regulations on the qualifications, criteria, procedures, and conditions for the registration of tax agents. These regulations stipulate the characteristics of a qualified tax agent, as prescribed by the Revenue Department, to file online tax returns, pay tax, or perform any other duties on behalf of taxpayers as prescribed by the Director-General of the Revenue Department. These activities of qualified tax agents are conducted through an internet network via the Revenue Department’s website at http://rd.go.th

     For more details, please see https://bit.ly/4asLp8D

Tax News Updates

     1. Tax measures to reduce the tax rate on gasoline products and benzene products

     On 31 October 2023, the Cabinet passed a resolution approving a reduction of the tax rate on gasoline products and benzene products by 1 Baht per liter, with a proportional reduction based on the mixed in oil content. This reduction was effective from 7 November 2023 to 31 January 2024. Subsequently, the tax rate is set to return to its original rate which is applied prior to the reduction. This initiative stems from the government’s urgent policy to alleviate the increased cost of living for the public and to stimulate overall economic activity by reducing energy expenses, which is a significant cost in economic activities and impacts the daily livelihoods of the people.

     For more details, please see https://bit.ly/3tlWOqd

Highlighted Supreme Court Judgment

Supreme Court Judgment No. 5654/2560

Between               Customs Department and et. al.                   Plaintiff

and                Mr. S                                                    Defendant

Subject: Importer

Disputed issue: Is a shipping agent or customs broker considered as “the importer” of goods which shall have the obligation to pay applicable customs duty?

Abbreviated judgment: Section 2 of the Customs Act B.E. 2469 provides that an “importer” includes and applies to the owner or other persons having a period of possession or interest in any goods as from the time of the importation until the completion of delivery from the custody of the customs officials; and “exporter” shall mutatis mutandis be construed accordingly. Section 77/1 (11) of the Thai Revenue Code prescribes that “importer” means a business person or other persons undertaking importation.

     It appeared that Mr. H. (who was the person who ordered the goods being imported) passed away on 14 March 2004, but all 3 copies of the delivery order indicated an import date after the date of his death. The Defendant signed all 3 copies of the delivery order as the holder of the customs clearance card. The Defendant argued that he was not the importer of the goods by contending that he was just the person who processed customs formalities and was under the supervision of Mr. H. who he argued was the actual importer. However, the Supreme Court disagreed with this argument as it ruled that the Defendant was an interested person in any goods as from the time of the importation until the time a customs officer duly released such goods from his custody. Thus, based on the circumstances of the case, it was held by the Supreme Court that the Defendant was the importer of the goods and thus should have the obligation to pay applicable customs duty on the imported goods.

     Legal opinion: I, the author agree with the abovementioned Supreme Court Judgment due to the following reasons set out below.

     Formerly, Section 2 of the Customs Act B.E. 2469 defined “importer” to include and apply to the owner or other persons having a period of possession or interest in any goods as from the time of the importation until the completion of delivery from the custody of the customs officials; and “exporter” shall mutatis mutandis be construed accordingly. Subsequently, amendments were made to modernize the Customs Act, which led to the current Customs Act B.E. 2560, which has already come into effect. Section 4 of the Customs Act B.E. 2560 prescribes that an “importer” shall include an owner, a possessor or an interested person in any goods as from the time of the importation until the time a customs officer duly releases such goods from his custody.

     I would like to point out that based on the abovementioned provisions in both the Customs Act B.E. 2469 and the Customs Act B.E. 2560, the definition of “importer” remains consistent. However, in the Customs Act B.E. 2560, to reduce legal interpretation issues, a specific definition for “exporter” is introduced separately from “importer”. Nevertheless, for an interested person in any goods, the regulations still apply in a similar way as provided by the Customs Act B.E 2469. Therefore, I am of the opinion that a shipping agent or customs broker should be considered as an interested person in any imported goods given the definition of “importer” as stipulated in the Customs Act B.E. 2560.

     However, when considering whether a person shall be considered as an importer of goods it should be done on a case-by-case basis. For example, if it is evident that the signature on the customs formality documentation does not align with the signature of the shipping agent, and the shipping agent did not submit a goods declaration or undergo customs procedures, it should not be concluded that the shipping agent is an interested person in such imported goods at that particular moment. Therefore, according to the aforementioned situation, the shipping agent may not be considered as an importer as that point in time.

Please note that the above opinion only reflects the author’s personal view. When considering tax law and its application, it is necessary to carefully consider the individual facts of each case. The application of the aforementioned Supreme Court Judgment is made for the purpose of the readers’ better understanding with respect to Thai tax law.

Author: Mr. Napat Wonglimpiyarat

Translator: Ms. Nutthanicha Sricharoenvanichakul

Dharmniti Law Office Co., Ltd. (DLO)

Address: 2/2 Bhakdi Building, 2^nd Floor, Wireless Road, Lumpini Sub-district, Pathumwan District, Bangkok 10330

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E-mail: maysayas@dlo.co.th