Is investing/trading on a tourist visa open to interpretation?

[andycam]

Let's say I go to Thailand on a tourist visa and sell my Apple shares because of a market crash (or insert reason here). What if I buy some Tesla? (yeah, I know I know….). What if I go for 90 days and do this 5 times…….or 10…or maybe 20?

If, however, I lived in Thailand on a Thai Elite visa, and lightly dabbled in some foreign investing on the side, what's the official line? Am I a trader, and is this "working" on the tourist visa?

Also, what would be the case if I was to do that through an offshore entity and paid myself an annual dividend? Given that there are no CFC rules in Thailand, and you are not stuck in an office for 40 hours a week, surely you are not breaching the terms of the visa and considered to be working?

If anything is questioned, surely a good tax lawyer can argue that you are just investing for your financial future and not working - or am I missing something with the offshore entity and directorship/shareholder?

Oh....................and what if there was a tad of crypto involved in there somewhere?

 

[JackAlabama]

Let's say I go to Thailand on a tourist visa and sell my Apple shares because of a market crash (or insert reason here). What if I buy some Tesla? (yeah, I know I know….). What if I go for 90 days and do this 5 times…….or 10…or maybe 20?

If, however, I lived in Thailand on a Thai Elite visa, and lightly dabbled in some foreign investing on the side, what's the official line? Am I a trader, and is this "working" on the tourist visa?

Also, what would be the case if I was to do that through an offshore entity and paid myself an annual dividend? Given that there are no CFC rules in Thailand, and you are not stuck in an office for 40 hours a week, surely you are not breaching the terms of the visa and considered to be working?

If anything is questioned, surely a good tax lawyer can argue that you are just investing for your financial future and not working - or am I missing something with the offshore entity and directorship/shareholder?

Oh....................and what if there was a tad of crypto involved in there somewhere?

You can have a look at western govs and how they treat this. And yes, what you suspect is indeed the case, you can be classified as being a pro trader and it can be seen as occupation (there are western countries who will rule that way).
So, it most likely will be the case in Thailand.

But with any banana republics, it is just to not go around and brag doing that and it will be fine.
If this causes you sleepless nights, then stick to a business friendly place (Thailand is not one), setup shop there and visit Thailand on a semi-regular basis.
Dubai is a good spot as it is so close.

 

[andycam]

You can have a look at western govs and how they treat this. And yes, what you suspect is indeed the case, you can be classified as being a pro trader and it can be seen as occupation (there are western countries who will rule that way).
So, it most likely will be the case in Thailand.

But with any banana republics, it is just to not go around and brag doing that and it will be fine.
If this causes you sleepless nights, then stick to a business friendly place (Thailand is not one), setup shop there and visit Thailand on a semi-regular basis.
Dubai is a good spot as it is so close.

Yes, but if you look at western countries, one accountant will take a differing view from another.

One might put an argument for investing, when another is more conservative. I've even had this exact difference of opinion with two accountants in the same firm!!!

Setting up shop elsewhere is always an option, but I'm a lazy arse (hence considering the Thai Elite)

From somebody that hasn't been there, Dubai doesn't appeal in the slightest, sadly.....

 

[tradingworldwide321]

You should take into account tax residency when you are using your trading account provided by a regulated brokerage and also when you are using your personal/business bank account.

Yes of course You can do that BUT you should change your tax residency otherwise it's useless what you want to do, fliying to other country if you still are tax resident of a different country for the broker and the bank.

Now, about the offshore entity you should consider where are you going to open a business bank account for it and under which tax residency you are going to give.

The Thai Elite Visa is a privilege visa which falls under the special tourist visa or privilege entry category. The Thai Elite Visa holder does not need to pay income taxes especially when the income was derived abroad. There are instances where a Thai Elite Visa holder may voluntarily pay income tax in Thailand.

Anyways if you want to run the trading account and business personal account you should become Tax Resident in Thailand, otherwise it's useless.

Look, I am day trader and I trade at any place I want, I can trade while I am passing by in Dubai, or Mexico, Or any South America or European country whatever and it's all good BECAUSE I already have a tax residency in other country while I travel to others.

So I pay some taxes to this country while I travel everywhere I want.

But I can't become tax resident of EU or USA because that will bring problems because you are liable to pay taxes no matter if you are a tourist, investor, employee whatever.

 

[backpacker]

The Thai Elite Visa holder does not need to pay income taxes especially when the income was derived abroad. There are instances where a Thai Elite Visa holder may voluntarily pay income tax in Thailand.

Who told you that?
The visa status in itself has nothing to do with your tax obligations!

No matter if you reside in Thailand on an Elite visa or any other visa, as soon as you become a tax resident the Revenue Code of Thailand is applicable.

 

[JackAlabama]

Yes, but if you look at western countries, one accountant will take a differing view from another.

One might put an argument for investing, when another is more conservative. I've even had this exact difference of opinion with two accountants in the same firm!!!

Setting up shop elsewhere is always an option, but I'm a lazy arse (hence considering the Thai Elite)

From somebody that hasn't been there, Dubai doesn't appeal in the slightest, sadly.....

As soon as you have drawn the attention of the eye of Sauron to your case, the tax office will tell you how they see it and then its up to you to defend it.

Just make sure they do not take notice and it should be alrighty.

 

[andycam]

you become a tax resident the Revenue Code of Thailand is applicable

I appreciate that a stay of >183 days will make you a tax resident, but my question is what constitutes trading activity in the eyes of said Thailand regulation.

As you mentioned above, it would most likely to be treated as it is on other western countries, but to be frank, I don't think that's 100% clear in many jurisdictions, and open to interpretation.

If you have no other tax liabilities to actually declare in Thailand, then it eventually comes down to how YOU interpret the regulation, which is far from ideal - or you ask for guidance, which will, of course, draw the eyes of Sauron as you imply.

 

[backpacker]

my question is what constitutes trading activity in the eyes of said Thailand regulation.

Thailand is not Switzerland which means the former has no clear guidelines for such specific cases.
Life in a developing country comes with uncertainty and taxes are one of them.

it would most likely to be treated as it is on other western countries, but to be frank, I don't think that's 100% clear in many jurisdictions, and open to interpretation.

Yes and Yes!
Tax authorities of developing countries very often take a look at what western countries are doing and how the "civilized world" handles certain cases. Sometimes they even have cooperation agreements and get aided by certain countries to install a more efficient tax system.
Nevertheless, at the end it is all down to local interpretation of the written law because if you do not agree with the decision of tax authorities the case will inevitably end up in court.

If you have no other tax liabilities to actually declare in Thailand, then it eventually comes down to how YOU interpret the regulation, which is far from ideal - or you ask for guidance

No, this is wrong! It comes down to how the majority of legal comments interpret the regulation. So, go through available literature and try to find similarities to your own case. Make yourself aware with the spirit of the law (very important) and then think how you would classify your own case.
Once you did all this contact a reputable law firm, pay there high fees and ask for a written legal opinion.
Even though this legal opinion can still be wrong, if you follow it you have good arguments in court that you tried your best to follow the law (the latter can not be overestimated).

or you ask for guidance, which will, of course, draw the eyes of Sauron as you imply.

If you mean a binding ruling by tax authorities: Yes, that is indeed a very naive idea and will immediately put you in the spotlight. Not only with regards to taxes but also with other even less pleasant organizations.
These binding rulings were originally invented for corporations and only for them they make practical sense.
You are a private individual, so do your own legwork and try to find a reputable law firm who will answer all your questions.

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Other than that: If you "lightly dabble in some foreign investing on the side" and can prove that you do not live on it there will be hardly any tax authority who classifies you as a professional trader. If you want to be overly pedantic, take MiFID regulation (classification as professional trader) and the official guidelines of some western countries (e.g. Switzerland) as a hint on where the red line might perhaps be drawn.

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N.b.: Thailand specific, bear in mind that "crypto is always with you" which means that wherever you keep it, capital gains are taxable.
Furthermore, signs are written on the wall that many things will change in Thailand https://www.offshorecorptalk.com/th...iland-based-crypto-investor.33110/post-195369 .
It doesn't seem wise to put any efforts into it to settle there today just for the purpose of lower taxes.

 

[wellington]

Let's say I go to Thailand on a tourist visa and sell my Apple shares because of a market crash (or insert reason here). What if I buy some Tesla? (yeah, I know I know….). What if I go for 90 days and do this 5 times…….or 10…or maybe 20?

If, however, I lived in Thailand on a Thai Elite visa, and lightly dabbled in some foreign investing on the side, what's the official line? Am I a trader, and is this "working" on the tourist visa?

Also, what would be the case if I was to do that through an offshore entity and paid myself an annual dividend? Given that there are no CFC rules in Thailand, and you are not stuck in an office for 40 hours a week, surely you are not breaching the terms of the visa and considered to be working?

If anything is questioned, surely a good tax lawyer can argue that you are just investing for your financial future and not working - or am I missing something with the offshore entity and directorship/shareholder?

Oh....................and what if there was a tad of crypto involved in there somewhere?

Thailand doesn't currently do CRS (starts recording next year for 2023 onwards).

They also try and avoid going after expat funds because it gets messy, and besides only a tiny % of thai's pay tax anyway.

Also if you open the FCD account(s) which the government will arrange for you, those transactions if completed 'offshore' and funds transferred to FCD opposed to personal (Savings/etc) are usually not taxable, you can then redeem them into your savings withease (kinda like how a EMA breaks the link between crypto - bank).

Otherwise transactions occurred offshore and redeemed 12 months later into thailand are not taxable as its matured offshore.

 

[andycam]

There's so much great advice here, but I wanted to clarify a couple of points:-

find similarities to your own case. Make yourself aware with the spirit of the law (very important) and then think how you would classify your own case.

Point taken, and good advice, although I've not yet made the jump, so there is no "case" to be reviewed - YET. I was trying to get the lay of the land on the forum before making any decision and moving there.

Once you did all this contact a reputable law firm

I think it's going to boil down to this isn't it!!! I need to get advice from a local firm on the ground, and I think that this is unavoidable. I guess I was trying to avoid lifting my skirt up and getting myself into any trouble with them, but the key word here was "reputable" and is unavoidable it seems.

N.b.: Thailand specific, bear in mind that "crypto is always with you"

My original post suggested me setting up an offshore entity for purpose of crypto NOT "being with me", so I do hope that I'm not wrong in thinking that an offshore entity avoids this issue? As there is no CFC rules, it was my assumption - and the reason for the post - that I could live there and not have the eyes of the crypto devils staring at me every year!

As I said, there's so much great gold in that post, so thanks!

Thailand doesn't currently do CRS (starts recording next year for 2023 onwards).

I'm still trying to wrap my head around the CRS implications, post 2023? Am I to assume that payments from my corporate entity will be disclosed to my Thai institution........which may lead to a few unwanted questions (that may have genuine answers!)

 

[backpacker]

My original post suggested me setting up an offshore entity for purpose of crypto NOT "being with me", so I do hope that I'm not wrong in thinking that an offshore entity avoids this issue?

At least from an official point-of-view you are unfortunately wrong.
Basically, your plan can be compared to holding crypto in an Exchange Traded Product (ETP). A crypto ETP is usually constructed as a debt security which at first glance might let one think that keeping BTC, ETH and others in there would have no negative affect while being a tax resident of Thailand. However, in the eyes of the taxman it is irrelevant how that vehicle is constructed, it is just important what you keep in it. Otherwise anybody could just keep whatever he wants in a wrapper and effectively circumvent taxation.
Obscure "legal" constructions just for the purpose of asset-holding are a thing of the past; they do not work anymore today. As soon as somebody takes a closer look you are doomed.

I'm still trying to wrap my head around the CRS implications, post 2023? Am I to assume that payments from my corporate entity will be disclosed to my Thai institution

Keyword here is UBO. So, from an abstract legal perspective the answer will be Yes.

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Thailand is a nice country. However, it is all but an ideal jurisdiction for what you plan to do there.
Either you focus on another country or you skip the idea of crypto asset dealing.
Warning: Thailand needs money. The good days are over. Do not try to outsmart the taxman!

Cheap alternatives: If crypto is important to you and you are not a professional day-trader, look into Georgia or the Philippines.

 

[JackAlabama]

At least from an official point-of-view you are unfortunately wrong.
Basically, your plan can be compared to holding crypto in an Exchange Traded Product (ETP). A crypto ETP is usually constructed as a debt security which at first glance might let one think that keeping BTC, ETH and others in there would have no negative affect while being a tax resident of Thailand. However, in the eyes of the taxman it is irrelevant how that vehicle is constructed, it is just important what you keep in it. Otherwise anybody could just keep whatever he wants in a wrapper and effectively circumvent taxation.
Obscure "legal" constructions just for the purpose of asset-holding are a thing of the past; they do not work anymore today. As soon as somebody takes a closer look you are doomed.

Keyword here is UBO. So, from an abstract legal perspective the answer will be Yes.

----------------+++++++++++------------------------++++++++++++++---------------------++++++++++++----------------

Thailand is a nice country. However, it is all but an ideal jurisdiction for what you plan to do there.
Either you focus on another country or you skip the idea of crypto asset dealing.
Warning: Thailand needs money. The good days are over. Do not try to outsmart the taxman!

Cheap alternatives: If crypto is important to you and you are not a professional day-trader, look into Georgia or the Philippines.

The important thing is "Thailand needs money". And if they can get it from some Farangs, even better and it will be a very popular political standpoint.
Better to based nearby and visit on a regular basis (if circumstances go back to that again). Dubai e.g. is very close and you can go there in a very short time.

 

[wellington]

The important thing is "Thailand needs money". And if they can get it from some Farangs, even better and it will be a very popular political standpoint.
Better to based nearby and visit on a regular basis (if circumstances go back to that again). Dubai e.g. is very close and you can go there in a very short time.

Farang's would leave in masses, they'd be in a worse state, just isn't gonna happen.

 

[backpacker]

Farang's would leave in masses, they'd be in a worse state, just isn't gonna happen.

The majority of Farangs in Thailand does not care about taxation. They live on a very low level, many of them not even able to put money into a fix term deposit to secure a simple one-year retiree visa.
See, there is a long-term plan behind all these changes:

• Thailand participating in CRS,
• Thailand taking an unusual stance on crypto ("crypto is with you wherever you go"),
• Thailand coming up with new residence-by-investment options,
• Thailand officially publishing numbers about their expectations for a huge surge in tax income from these new residence-by-investment schemes (where does it come from if not by broadening their tax basis?).

The Thai government made its intentions quite clear and no Farang should complain when they push through with it.
Also note that Thailand has no territorial tax system. The current remittance exclusion is just one small sentence which can be eliminated overnight without much fuss.

All this reminds me a bit of Georgia where people (foreigners) do not want to see that things are about to change very soon very drastically. I mentioned that often enough, even including a date for the anticipated changes!

 

[andycam]

Basically, your plan can be compared to holding crypto in an Exchange Traded Product (ETP)

I'm no global securities expert, but as far as I am aware, ETP's are treated securities in most major markets regardless of what they are invested in - and are taxed as such. There reason there is no Bitcoin Spot ETF in the US is because it is not getting approval from the SEC as a security. Investors all over the world are investing in these products to circumvent strict crypto regulation for this exact reason.

Whilst I am no Thailand expert, if you are the shareholder in an offshore entity, depending on how it is set up, surely it's a security that you are holding? As far as the authorities are concerned you own one/<insert number here> share in a company. If you own shares in a property investment business, do you have to report the property rental income?

Given how much amazing advice you've posted here, I'm reluctant to say that I disagree (but I do), however given your insistence, I will be seeking further clarity once I engage a professional.

Either you focus on another country or you skip the idea of crypto asset dealing.

This has certainly been on my mind recently, and I have considered abandoning the trading idea, and just holding. There seems to be a lot of threads on this site proposing that people chose another country, but this seems super counter intuitive to me. I lived in SE Asia (inc Thailand) for 5 years, and my desire is to return with things correctly in place. I'd rather (re)consider the activity than the country.

The current remittance exclusion is just one small sentence which can be eliminated overnight without much fuss

They could equally throw all farangs out tomorrow. The same could be said about any country. They could ban retirement visas, eliminate the 90 day visa runs, arrest you for drinking Coors Light, the list goes on.........

That's the chance you take moving overseas.

 

[backpacker]

I'm no global securities expert, but as far as I am aware, ETP's are treated securities in most major markets regardless of what they are invested in - and are taxed as such. There reason there is no Bitcoin Spot ETF in the US is because it is not getting approval from the SEC as a security. Investors all over the world are investing in these products to circumvent strict crypto regulation for this exact reason.

Unfortunately, there is difference: A supervisory authority might classify something as a security but that does not hinder the taxman of a given jurisdiction to apply the "look-through-approach". Think about a bond ETF vs. an index ETF vs. an emerging market stock ETF.
Example: Many jurisdictions prohibit their residents to buy foreign currency denominated bonds of the country they reside in. This can not be legally circumvented by holding these prohibited securities indirectly through an EM bond ETF or EM investment fund. The "look-through-approach" would make the holder of such an investment vehicle (i.e. ETF, mutual fund, ETP, AIF ... ) an easy target for fines or specific (increased) taxation. Two popular examples where this applies are Egypt and the Philippines.

Back to crypto ETP's and "look-through-approach": It has been discussed here -> https://www.offshorecorptalk.com/threads/cyprus-company-non-dom.35313/post-192109 (post #6 till #13)

 

[andycam]

Make yourself aware with the spirit of the law (very important) and then think how you would classify your own case.
Once you did all this contact a reputable law firm, pay there high fees and ask for a written legal opinion.
Even though this legal opinion can still be wrong, if you follow it you have good arguments in court that you tried your best to follow the law (the latter can not be overestimated).

Hopefully looping in Bagpacker for some pointers here:-

https://www.offshorecorptalk.com/threads/thailand-crypto-help-in-locating-the-facts.36875/

I contacted a lawyer (define "reputable") and got some feedback as per the above thread, but can't find anything in the Revenue Code to challenge him.

 

[backpacker]

Hopefully looping in Bagpacker for some pointers here:-

https://www.offshorecorptalk.com/threads/thailand-crypto-help-in-locating-the-facts.36875/

I contacted a lawyer (define "reputable") and got some feedback as per the above thread, but can't find anything in the Revenue Code to challenge him.

I understand your frustration regarding this.

Unfortunately, you (and most likely your lawyer) have to dig a bit deeper: "Crypto is always with you" is a legal status BOT/SEC came up with. RD bases it's collection entitlement on this legal status which is a logical approach.

It is a bit similar to CY. I wrote about it here -> Cyprus Company + Non Dom

Do not try to make The Impossible possible.
Check the Philippines if you are into crypto and want to live in Asia. Much better jurisdiction for this compared to TH, with far clearer taxation rules.

 

[andycam]

Thanks for responding to my desperate search for help.

"Crypto is always with you" is a legal status BOT/SEC came up with.

I simply fail to see how something can be a "legal status" when it is not specifically written into the law, or how the RD can enforce something that is not in the Revenue Code

...and this is why I have requested pointers to such legal statuses, so that I can show my lawyer.

It's fair to say that he knows the law more than me, and statistically more likely to know the facts than many of us here? (a bold assumption, I know)

Do not try to make The Impossible possible.

If only there was a law telling me it wasn't possible..........but so far, nobody can show me it

Thanks again.

 

[backpacker]

Thanks for responding to my desperate search for help.



I simply fail to see how something can be a "legal status" when it is not specifically written into the law, or how the RD can enforce something that is not in the Revenue Code

...and this is why I have requested pointers to such legal statuses, so that I can show my lawyer.

It's fair to say that he knows the law more than me, and statistically more likely to know the facts than many of us here? (a bold assumption, I know)


If only there was a law telling me it wasn't possible..........but so far, nobody can show me it

Thanks again.

BOT and SEC handle currencies and securities. It is up to them to decide if an object of value is a stock, currency, derivative or whatever else.
If somebody does not agree with the classification/decision of such a government body it is up to this person to challenge it in court (well, better forget that in Thailand).
Based on the status BOT/SEC grants, RD applies the Thailand Revenue Code.

To further clarify: Very few countries currently do have "laws" regarding the status of crypto. Most is decided by commissioners, SEC and central banks. Based on their decision (which grants the legal status until challenged) tax laws are applied.