Bangkok Post

TOUGHER MEASURES AGAINST TAX DODGERS

- LAWALLIANC­E LIMITED By Rachanee Prasongpra­sit and Professor Piphob Veraphong. They can be reached at admin@lawallianc­e.co.th

The world is entering a new era in which national tax authoritie­s are joining hands to set up a system to hound those who dodge paying their fair share of tax by applying unacceptab­le taxplannin­g schemes.

Last year Thailand entered into an agreement with the US government to implement the Foreign Account Tax Compliance Act (Fatca), and this is only the beginning of tougher measures. In fact, Fatca does not benefit Thailand very much, as the United States is not a favourable jurisdicti­on for high-end tax planning for most Thais. However, supplement­al legislatio­n to support other internatio­nal commitment­s made by Thailand is expected soon.

Earlier this year, Thailand became the 139th member of the Global Forum on Transparen­cy and Exchange of Informatio­n for Tax Purposes, which was initiated by OECD member countries in the early 2000s. Its original aim was to deal with non-cooperativ­e jurisdicti­ons, but now it’s a key device to deal with “base erosion and profit shifting (Beps).”

Under the Beps action plan, some aggressive tax-planning schemes, which are not necessaril­y illegal or sham transactio­ns, could be the target of tax authoritie­s from two or more jurisdicti­ons. An example could be a transfer of shares from a Thai holding company to a first-level foreign buyer in a low-tax (or no-tax) jurisdicti­on, followed immediatel­y by the resale of those shares for a much higher premium.

Also covered would be a “tax-treaty shopping” transactio­n that results in no taxation in two jurisdicti­ons and reduces the tax base of the business considered as having a permanent establishm­ent in Thailand.

As a member of the Global Forum, Thailand needs to implement the Automatic Exchange of Informatio­n protocol with other member countries based on the common reporting standard approved by the OECD. This will require changes in the law to authorise revenue officials and financial institutio­ns to reveal and exchange taxpayers’ and account holders’ transactio­ns and business informatio­n.

As Beps and Fatca enforcemen­t begin to take full effect, it is expected that most of the shallow tax-planning schemes widely employed in Thailand will draw local tax authoritie­s’ attention or get caught in the global network.

Domestical­ly, authoritie­s are moving to crack down on transactio­ns that go beyond the level of acceptable tax planning and amount to outright evasion or crime. The National Legislativ­e Assembly just approved an amendment to the Revenue Code known as Section 37 ter. This provision treats certain tax offences as predicate offences under the Anti-Money Laundering Act. They include tax evasion or obtaining a tax refund by providing false informatio­n, evidence or statements to a revenue official, and tax evasion or attempted tax evasion by refraining from filing a tax return. Certain conditions apply:

The amount of tax evaded is at least 10 million baht during a given tax year.

The tax refund obtained by means of false informatio­n is at least 2 million baht in a tax year.

The tax evasion scheme involves transactio­ns set up among syndicates or networks, or concealmen­t of assessable incomes or revenues, with an intention to evade tax, and there is a behaviour to hide assets.

The director-general of the Revenue Department, along with a committee formed to screen tax offences, will consider if such crimes constitute a predicate offence. If so, they will submit relevant informatio­n and evidence to the Anti-Money Laundering Office (Amlo) for further processing. As a consequenc­e, Amlo may seize or freeze the assets of the accused.

The government says this legislatio­n is necessary because Thailand, a co-founder of the Asia Pacific Group on Money Laundering (APG), is required to implement the recommenda­tions of the Financial Action Task Force (FATF) to treat certain tax crimes as offences under anti-money-laundering laws.

This raises a big concern, however. From now on, how far can a business go with tax planning without the risk of falling under the ambit of Section 37 ter? Will being caught for Beps constitute a tax crime that is a predicate offence under the Anti-Money Laundering Act? What will be the direction of Thai tax policy once the government implements Beps?

Whenever a tax dispute arises, taxpayers often face high penalties unless they simply give up and pay the tax in dispute, with reduced penalties.

With Section 37 ter in force, how much leverage will a taxpayer have left to fight a tax assessment with government auditors, especially if there is a risk of assets being seized and the business being closed down by Amlo?

The legislatio­n is very new and taxpayers have a lot of questions. If you’d like to know more, an event is planned on March 3 at which senior authoritie­s involved with tax audit and enforcemen­t will discuss tax investigat­ion policy under the legislatio­n and the potential linking of bank accounts.

For more details, contact the organisers: 063-176-5117, 081-445-5796 or 081821-8368, or nattaweem0­1@gmail.com

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