Volume 8 Issue 3
July-September 2006         
SGA Bulletin

Tsunami Debtors Exempted from Paying Income Taxes

Supreme Court Opinions:  

Re: Employment (Koarbtum v. Credit Swiss First Boston (Thailand) Co. Ltd.


Re:Inheritance (Teikbrang)


Re:Consent in Marriage, Consent in Adoption (Srichan v. Hudchawinyou)


Re: Trademarks, Intellectual Property (Castle Ridge Ltd. v. Department of Intellectual Trademarks & Property )

Re:Code of Revenue, Business Tax on Sale of Property (Tongkom v. Department of Revenue )
The SGA Bulletin is intended for informational purposes only. It does not constitute legal advice. Legal, business and other information is subject to change and no warranty is either expressed or implied.

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Immigration Department Imposes Limit on 30 Day Tourist Visas

On 8 September 2006 the Royal Thai Police Commandant issued Order No. 608/2549 imposing a time limit on the number of days visitors from visa-on-entry countries will be permitted to stay in Thailand on 30 day on-entry visas.  The new order specifies that within a six month period, passport holders from visa-on-entry countries will be permitted to enter the country several times on individual stays which do not exceed 30 days, or 90 days in total from the first time the passport holder arrived in Thailand.  The new order does not prohibit these same tourists from re-entering the country with a 60 day tourist visa issued abroad and then extending this visa for an additional 30 days in effect staying in Thailand for the whole six month period.  The new order also limits the number of days of that a passport holder from a country without a Thailand embassy can stay in Thailand to thirty, limits international sports competitions and international conference visas to 30 days and limits the Asian-Pacific Economic Cooperation (APEC) visa to 90 days.  This order will go into effect on 1 October 2006.

New Registration Requirement for Companies with Foreign Shareholders or Director

On 20 July 2006 the Ministry of Commerce issued Regulation No. 102/2549 which will require Thai shareholders in certain categories of mixed venture companies to show their source of capital when registering a new company. The new regulation, which will go into effect on 15 August 2006, is intended to discourage the practice of nominee shareholders by requiring all Thai shareholders to present evidence of genuine financial stake. Regulation No. 102/2549 will require all Thai shareholders in the following types of partnerships and limited companies to submit evidence of their source of capital when registering a new company: (1) Partnerships or limited companies in which foreign shareholders hold over 40% of the shares. (2) Partnerships or limited companies in which foreign shareholders hold less than 40% of the shares, but a foreigner is the director of the company or partnership. The following types of documents may be submitted by the Thai shareholders as evidence of the source of capital: (1) Copy of a bank book or bank statements retroactive for 6 months (2) A document issued a bank certifying the financial status of the shareholders (3) Copy of evidence showing the source of money for investment.

FTI Requests Doubling of Income Tax Waiver

The Federation of Thai Industries (FTI) asked the government to double the tax waiver for personal income taxes in order to stimulate domestic consumption. The Finance Ministry currently exempts taxes on the first 100,000 baht earned in a year. Annual incomes of 100,000 to 500,000 baht are taxed at the rate of 10% The new proposal would give consumers with an annual income of 200,000 baht or more an extra 10,000 baht of spending money by extending the income tax exemption to the first 200,000 baht earned in a year.

Tsunami Debtors Exempted from Paying Income Taxes

On 13 August 2006, His Majesty the King issued a Royal Decree under the provision of the Revenue Code governing the exemption of revenue.  The 26 December 2004 disaster in six provinces in Southern Thailand affected the ability of debt repayment requiring financial institutions and other creditors to restructure debt.  In order to promote debt restructuring, debtors are exempted from income tax, value added tax, specific business tax and duty stamps on income obtained from proceedings related to debt restructuring in the period between 1 January 2005 and 31 December 2006.

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Ministry of Labor issues New Occupational Safety Standards

The 16 May 2006 Ministerial Regulation, "Specification of Occupational Safety, Hygiene and Environment Management Standards" will require employers of 13 categories of businesses ranging from rock mines to department stores to adhere to more stringent occupational safety standards.  Besides mandating such basic safety measures as making occupational safety handbooks readily available and requiring employers to warn employees if they are working in a dangerous area, the new regulation is designed to achieve a higher standard of occupational safety by requiring employers to hire safety supervisors and/or special occupational safety committees.  Whether a supervisor and/or occupational safety committee is required is dependent on both the number of employees and the hazards of work.  Operators of rock mines are legally required to appoint a staff member to be a supervisor of occupational safety if they employee as few as two employees.  Department store managers, on the other hand, must appoint a supervisor of occupational safety only if they employee 20 or more people.  The regulation specifies the level of education required for both supervisors and committees.  Occupational safety committees, which are required only of establishments with fifty or more employees, will have responsibilities including reviewing occupational safety plans and policies, reporting guidelines related to problems in occupational safety and conducting monthly safety surveys and review of accident statistics.

Future Business Operators Required to Make Bi-Annual Disclosures

A 1 March 2006 regulation requires future market contract business operators to disclose balance sheets, statements of income to the Securities and Exchange Office on a bi-annual basis.  The balance sheets, statement of income, and a report from an auditor must also be published in at least one local daily newspaper.  Future Business Operators were first required to disclose their financial statements in the accounting period that ended on 31 March 2006.

Act on Entertainment Places Amended

An amendment to the Act on Entertainment Places issued on 8 May 2006 established new requirements for the application for an entertainment business license as well as new entertainment business regulations.  The amendment mandates that entertainment business owners keep stricter records on their staff.  Licensees are required to keep 2 copies of profile cards on each of their staff members.  The profile card (complete with their ID number) must fixed on the right hand side of their shirt during work hours.  The card shall have a red background if the employee is a service partner, entertainer, bath service provider, masseur or scent service attendant.  Other employees shall wear a blue profile card.

Supreme Court Opinion No. 1529/2548
Koarobtum v. Credit Swiss First Boston (Thailand) Co. Ltd.

Re: Employment

The defendant is suing Credit Swiss First Boston (Thailand) Co. Ltd. for terminating an employment contract.

Credit Swiss First Boston (Hong Kong) Co. Ltd., Credit Swiss First Boston (Singapore) Co. Ltd and the defendant Credit Swiss First Boston (Hong Kong) Co. Ltd. are branches of one company that have incorporated in different countries.  The plaintiff was formerly employed by Credit Swiss First Boston (Hong Kong) Co. Ltd. and was later transferred to work with Credit Swiss First Boston (Singapore) Co. Ltd.  The plaintiff signed a contract with Credit Swiss First Boston (Singapore) Co. Ltd. dictating the plaintiff's place of employment, position, salary, bonuses, expenses, vacation, other welfare and provisions for termination of the contract.  This is a written employment contract between the plaintiff's employers, Credit Swiss First Boston (Singapore) Co. Ltd., and the plaintiff.  Although the three companies are subsidiaries of the same parent corporation, each company is a juristic person with its own authority, duty and responsibility.  In this case, Credit Swiss First Boston (Singapore) Co. Ltd. has terminated the employees' contract.  The plaintiff is not the defendant's employee.  There is no evidence that Credit Swiss First Boston (Thailand) Co. Ltd. has acted on the behalf of Credit Swiss First Boston (Singapore).  The plaintiff therefore has no right to sue the defendant.

Supreme Court Opinion No. 2733/2548
Requisitionist: Teibkrang

Re: Inheritance

The petitioner is the descendent of the nephew of the deceased and is requesting the right to be the administrator of the deceased's estate.

According to Section 1629 of the Thailand Civil and Commercial Code, the full blooded brothers and sisters of a deceased person inherit the decedent's estate. The great aunt of the deceased, who was the sibling of the deceased, preceded the deceased in death and was therefore unable to claim her share of the inheritance. Section 1639 of the Thailand Civil and Commercial Code specifies that if the inheritor dies before receiving their heritage, then the heritage is the estate of their descendent. In this case, the descendent of the decedent's sister also preceded the decedent in death, therefore the inheritance becomes the estate of the decedent's descendent. Therefore the petitioner has a right to request to be an administrator of the decedent's estate according to Section 1713 of the Thailand Civil and Commercial Code.

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Supreme Court Opinion No. 3739/2548
Srichan v. Hudchawinyou

Re: Consent in Marriage, Consent in Adoption

The prosecutor is representing the ex-wife of the first defendant and the mother of the second and third defendants.  She is claiming that the adoption of her children by the deceased second wife of the first defendant was not legal.  The grounds for her claim are an incomplete marriage certificate between the first defendant and his second wife and a lack of consent from the biological mother.    

The first page of the defendant's marriage certificate is not signed by the defendant.  It is signed only by the wife of the defendant who is deceased.  However, a Memorandum with the same date and time as the marriage certificate lists the opinion of an officer that both members of the couple intended to register their marriage.  Therefore, the courts rule that the defendant's missing signature on the first page of the marriage certificate does not invalidate the marriage.

After the defendant and his first wife were divorced, his first wife gave the custody of the children to the defendant in a divorce court.  Later, the second wife of the defendant adopted the children of the defendant's first wife.  According to the Section 22 of the Act of Family Registration, the consent of the parents is required for the adoption of a minor.  It is not specified that this consent must be made in writing or that a signature of the parent must be obtained.  Although the mother of the children claims that she did not give her consent, she did not voice an objection for 29 years.  Therefore the court upholds the legality of the adoptions of the first defendant's children by his second wife.

Supreme Court Opinion No. 3285/2548
The Public Attorney of Khoanken Province v. Nai Chalermchai Krachaim and Company

Re: Copyright Violation

The defendants were charged with violating a copyright on a computer program.

According to Section 4 of the Copyright Act, the unauthorized showing, distribution and publication of copyrighted computer programs is a violation of copyright law.  The plaintiff filed an order against the four defendants for uploading a computer program created by violating a copyright law onto a computer that is used for making a profit.  In other words, the four defendants uploaded the computer program onto a computer which is used by the public.  Therefore the defendants are not publicly disseminating an illegal copy of a copyrighted computer program for profit and commercial business, a crime according to Section 70 Paragraph 2 Section 31 (2) of the Copyright Act.  Even if the plaintiff had the evidence supporting his claim, the four defendants could not be guilty.

Supreme Court Opinion No. 2500/2548
Castle Ridge Ltd. v. Department of Intellectual Property

Re: Trademarks and Intellectual Property

The plaintiff is suing the Department of Intellectual Property for the revocation of the trademark "Choanpoypeepekor".

The plaintiff filed a court order for the revocation of the trademark "Choanpoypeepekor".  The plaintiff did not base his petition on a claim to the trademark, but rather on the premise that no one should be able to claim this phrase as a trademark.  The plaintiff did not sue the company with the registered trademark, but rather sued the Department of Intellectual Property for the revocation of the trademark.

This is the second time the plaintiff's petition has been heard by the court.  However, individuals may be given permission by the court to file more than one petition if they can prove valid cause.  The plaintiff submitted satisfactory supplementary lists and evidence therefore the court heard the plaintiff's petition.

"Choanpoy" and "Peepe" are the names of Chinese herbs which can be used to remedy coughs and abate phlegm.  These two words were combined with the word, "Kor" which means cough for the name of the trademark, "Choanpoypeepekor".  Because the name of this trademark is only the name of the herbs and the word cough with no modification, it is illegal. Therefore the trademark registration is revoked.

Supreme Court Opinion No. 3635/2548
Tongkom v. Department of Revenue

Re: Code of Revenue; Business Tax on Sale of Property

The Plaintiff is claiming she should not have to pay taxes on the sale of commercial property based on a five year time period set forth in the Clause 5 of the Code of Revenue.

The Plaintiff sold land to Por within five years of the date the land was transferred to her from her father.  According to section three of the Royal Decree under the Code of Revenue (Issue No. 244) dealing with the sale of immovable property that is to be used for commercial purposes or to make a profit, the following types of transactions are liable to taxation, "(5) the sale of immovable property used for commercial purposes, but not including agriculture (6) the sale of immovable property that is not with regard to (1) (2) (3) (4) or (5) that was carried out within 5 years of receiving the immoveable property".  According to Clause 6, taxes must be paid if the transaction was carried out within a five year period.  While the plaintiff is holding the land for commercial purposes, she is already exempted from paying taxes in clause five.  Therefore Clause 6 does not need to be taken into consideration.

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