1. Forming a Company In order to set up a limited company in Thailand, the following procedures should be followed: A. Corporate Name ReservationThe name to be reserved must not be the same or close to that of other companies. Certain names are not allowed and therefore the name reservation guidelines of the Commercial Registration Department in the Ministry of Commerce should be observed. The approved corporate name is valid for 30 days. No extension is allowed. You can check and reserve the name by visit website business registration, the official website of Ministry of CommerceB. File a Memorandum of AssociationA Memorandum of Association to be filed with the Commercial Registration Department must include the name of the company that has been successfully reserved, the province where the company will be located, its business objectives, the capital to be registered, and the names of the seven promoters. The capital information must include the number of shares and the par value. At the formation step, the authorized capital, although partly paid, must all be issued. Although there are no minimum capital requirements, the amount of the capital should be respectable enough and adequate for the intended business operation.The Memorandum registration fee is 50 Baht per 100,000 Baht of registered capital. The minimum fee is 500 Baht, the maximum 25,000 Baht.
C. Registration of Incorporation of the Company
Following the registration of the Memorandum of Association all shares must be subscribed to by shareholders and all promoters must hold at least 1 share. At least 25 % of the value of each share is required to by law to be paid up.The promoters shall then hold a general meeting of all subscribers, which is called the “Statutory Meeting”.The promoters are required to send to every subscriber a notice of the Statutory Meeting together with a statutory report at least 7 days before prior to the meeting-taking place. The notice of the Statutory Meeting shall contain the agenda of all business to be transacted. Normally the business to be transacted at the Statutory Meeting is as follows:
After the payment for the shares have been made, the authorized director(s) must apply for the registration of the Articles of Association of the Company. In practice the Articles of Association can be submitted 10 days after the date of registration of the Memorandum of Association. It will normally take at least 3 – 5 working days for the Registrar to consider the Articles of Association and the list of shareholders. (The promoters are required to hold at least one share each).
- Adoption of the Articles of Association of the Company
- Ratification of the promoter’s actions and expenses
- Consideration of the amount to be paid to the promoters
- Appointment of the directors and authorized directors
- Establishment of preferred Shares (if any)
- Consideration of the number of shares to be allotted as fully or partially paid up other than money and the initial paid up capital for the shares payable in money and
- Appointment of Auditors and the determination of their consideration Following the Statutory Meeting, the directors shall run the business of the Company. The directors shall call for the payment for the shares to be made in money in the amount determined at the Statutory Meeting.
The completion of the incorporation of a Limited Company takes approximately 3 – 4 weeks.
The Tax Implications
The registration of Transfer of Ownership of the Land and the Villa:
Please be advised that under the law, all fees and duties and taxes in relation to the registration of transfer of ownership of the land and the house or villa are subject to be paid up front to the Land Department official on the registration date every time there is a registration (which includes resale transactions). The rates of the fee and duty and tax are based on the official appraisal price, or the purchase price in that it is higher then the official appraisal price. The details are below:
- Transfer fee: 2 % of the official appraisal price
- Stamp Duty: 0.5 % of the official appraisal price or the sale prices whichever is greater
- Withholding Tax: 1 % of the official appraisal price of the sale price, which ever is greater
Thai law requires at least 7 people to be the promoters of the Company and in order to be considered a Thailand Limited Company at least 4 of the promoters must be Thai nationals.
Objectives of the Company
As the Company will have Thai nationality, the Company is therefore free to set its own objectives, which should not be contrary to public order or good morals.In fact the Ministry of Commerce provides a standard form of objectives of the Company containing 40 clauses including to owning a land and house.
The shares of the Company must be or par value and the amount of a share may not be less than 5 Baht.The shares of the company can be issued only as ordinary or as preferred shares. The preferred shares have special rights attached to them as prescribed in the Articles of association. If preferred shares have been issued, the preferential rights attributed to such shares cannot thereafter be altered.Normally, to protect the foreign shareholder, two types of share holdings are suggested. The Thai shareholders hold preferred shares with limited privileges (i.e. less voting right, limited dividend, or limited right to asset surplus) whilst the foreign shareholders hold ordinary shares with better privileges.Shares are transferable without the consent of the Company unless otherwise provided by the Articles of Association of the Company. Both types of shares are transferred by delivery of a certificate. A transfer of shares entered in the name certified must be in writing and executed both by the transferor and the transferee, whose signatures shall be certified by at least one witness. The transferor shall be deemed to remain the holder of the shares until the particulars of the transferee and the shares transferred are recorded in the register of shareholders.
A Thai Company is a company in which Thai shareholders hold more than half of all issues shares, this is 51%. Foreigners therefore can hold only 49%. A company must have at least 7 shareholders whose names addresses and shareholdings are filed in public records at the Ministry of Commerce. Shareholders can be natural persons or corporations of any nationality, and residence. The rights of shareholders are:
To receive dividends
To attend and vote at any general Shareholder’s Meeting
To request the summoning of an Extraordinary Shareholders’ Meeting
To control the transactions of the company
Under the Land Code and the Land Department Notifications, a Company in which more then 39 % of the shares are held by foreigners is required to be investigated by the Land officials regarding whether the Thai shareholders are nominees holding share on behalf of foreigners. This investigation can take 2 – 3 weeks if not longer.In order to minimize any extra time or risk of investigation most law firms will suggest that in the first stage the buyer should structure the shareholding ration at 39 % foreign and 61% Thai to avoid time being consumed by the government investing company shareholding structure. After the completion of the registration of the transfer of ownership of the land, the new company can be restructured so that the foreign holding is at the maximum percentage available.
The registered capital should not be less than the purchase price of the land. This is because the Land Department official has sole discretion regarding whether to investigate the Company if they consider that the Company has been established with Thai shareholders to hold the land on behalf of the foreigners.Alternatively, it is suggested that the buyer sets the registered capital at nominal amount of 1 million Baht. The difference between the purchase price and the registered capital can be made in the form of a loan to the company from a foreign director. In this case, evidence can be shown to the Land Department that the Company has a source of money to purchase the land. In additional if in the future the Company wishes to remit funds outside Thailand they may be able to do so under the premise that those funds are for payment of a loan from a foreign director.
Under Thai law, there is no requirement of a minimum number and nationality of the directors. It is therefore allowable to have all directors as foreigners. Please note that a director need not be a shareholder.
Under Thai law, it is required that authorized directors shall be appointed from any of the directors of the Company, to sign any document for an on behalf of the Company. Again there is no requirement regarding the number and nationality of the authorized directors.
Books and Accounts
The Company books and accounts must be kept in the registered office and are to be a true and complete account of the sums received and expended by the Company. The accounts must show the assets and liabilities of the Company and its profit and loss account. The balance sheet and the profit and loss account has to be examined by the Company’s auditor and submitted to the general meeting for consideration. Accounts must be audited once a year and filed with the Revenue Department and Commercial Registration.
Minority Shareholders Protections in a Thai Company
Foreign investment in a Thai Company is limited to 49 % while Thai nationals must hold the remaining 51 %. This provides for ownership of the majority shares by Thais, however, there are a number of means available to provide minority shareholders with a degree of management control of a company. Thus for example, minority shareholders may be given the sole right to elect a percentage of the Board of Directors, or the right to have more voting rights then the majority shareholders (i.e. a foreign shareholder who holds 49 5 ordinary shares has 1 vote per 1 share whilst a Thai shareholder who hold 51 % holds preferred shares and has 1 vote per 10 shares, or by including a stipulation that all shareholders resolutions require a minimum vote of 80 % to be passed which ensures that minority approval is required. Thus, it is possible to give minority equity investors a degree of control over the activities of the company.All provisions regarding the protection of the minority shareholders will be stipulated in the Company’s Articles of Association, to be registered with the Ministry of Commerce.
D. Tax Registration
Businesses liable for income tax must obtain a tax I.D. card and number for the company from the Revenue Department within 60 days of incorporation or the start of operations. Business operators earning more than 600,000 Baht per annum must register for VAT within 30 days of the date they reach 600,000 Baht in sales.