Client Alert June 2018

Transcription

1 FinTech Bangkk Client Alert June 2018 Cryptcurrencies and ICOs Nw Regulated in Thailand (law and draft regulatins as f 10 June 2018) Fllwing the enactment f the Emergency Decree n the Digital Asset Businesses B.E (A.D. 2018) ("Digital Asset Businesses Decree") and the Emergency Decree n the Amendment f the Revenue Cde (N. 19) B.E (A.D. 2018) ("Amendment f the Revenue Cde Decree"), which became effective n 14 May 2018, the Office f the Securities and Exchange Cmmissin (SEC) held a public hearing n the draft f related sub-regulatins t be issued under the Digital Asset Businesses Decree n May These subregulatins are expected t be fficially issued within June Here is the verview f hw Digital Assets, which cmprise f Cryptcurrencies and Digital Tkens (e.g. thse raised thrugh s-called ICOs r tken crwd sales), are t be regulated and taxed in Thailand. 1. What is the legal status f Cryptcurrencies and Digital Tkens? Digital Assets cmprise f tw categries f assets, namely "Cryptcurrencies" and "Digital Tkens". Bangkk 5th Flr and 21st-25th Flrs 990 Abdulrahim Place Rama IV Rad, Silm, Bangrak Bangkk Thailand 1 1 Accrding t the news regarding the ffice f the SEC's meeting n 7 June 2018, the SEC will designate 7 cryptcurrencies in its first list f apprved Cryptcurrencies, used fr Initial Cin Offerings (ICOs) r t be traded as trading pairs. These apprved cryptcurrencies cnsist f Bitcin, Bitcin Cash, Ethereum, Ethereum Classic, Litecin, Ripple, and Stellar.

2 2. What is the verview f the regulatry landscape? Regulated activities include (1) ffering f Digital Tkens t the public and (2) peratin f Digital Asset Businesses.

3 (1) Offering f Digital Tkens t the Public An issuer must btain prir apprval frm the Office f the SEC befre ffering its Digital Tkens t the public and must file a registratin statement and draft prspectus t the Office f the SEC. The ffering f Digital Tkens can nly be dne nce the registratin statement and the prspectus have becme effective and can nly be dne thrugh SEC apprved ICO Prtal t investrs. Under the latest draft regulatins, which may be subject t change; the ffering f utility tkens that d nt have characteristics fr raising funds that culd be utilized since the first date f ffering, will be exempted frm ffering requirements. Fr crss-brder deals, including utbund r inbund investment r utbund r inbund ffering f tkens, careful cnsideratins under this law and ther relevant laws including exchange cntrl law and tax must be dne n a case-bycase basis.

4 (2) Operatin f Digital Asset Businesses Digital Asset Businesses include (1) Digital Asset Exchange 2, (2) Digital Asset Brker 3, and (3) Digital Asset Dealer 4, r any ther businesses as designated by the Minister f Finance. All these peratrs must btain an apprval frm the Ministry f Finance (MOF) thrugh the Office f the SEC and must cmply with certain regulatry requirements. Under the latest draft regulatins, which may be subject t change; the prvisin f services as a center fr (i) trading Cryptcurrencies that are cnsidered as a stable cin/reference cin ( i.e. Cryptcurrencies f which the value always pegs with and equals t the specified value f Thai Baht, withut the element f fluctuatin), and (ii) exchanging utility tkens with the same type f ther utility tkens that culd be immediately utilized, will nt be regulated under this law. 2 Digital Asset Exchange means a center r a netwrk established fr the purpses f purchasing, selling r exchanging f Digital Assets, perating by matching r arranging the cunterparties r prviding a system r facilitating a persn wh is willing t purchase, sell r exchange Digital Assets t be able t enter int an agreement r match the rder, in the nrmal curse f business, but nt including the system r netwrk as specified by the Office f the SEC. 3 Digital Asset Brker means a persn wh services r hlds himself ut t the public as available t be a brker r an agent fr any persn in the purchase, sale r exchange f Digital Assets t ther persns in the nrmal curse f business, in cnsideratin f a cmmissin, fee, r ther frms f remuneratin, but nt including brkers r agents in the manner as specified in the ntificatin f the SEC 4 Digital Asset Dealer means a persn wh services r hlds himself ut t the public as available t purchase, sale r exchange f Digital Assets fr his wn accunt in the nrmal curse f business utside a Digital Asset Exchange, but nt including dealers in the manner as specified in the ntificatin f the SEC.

5 3. What rle can yu play and what are the implicatins? Public ffering f newly ffered Digital Tkens must be dne by a cmpany (either private r public) established in Thailand. Issuer must file a registratin statement and a draft prspectus t btain apprval frm the Office f the SEC prir t the ffering. Offering must nly be dne thrugh an apprved ICO Prtal and Digital Tkens may nly be ffered t certain types f investrs that meet the requirements, qualificatins, and limitatins as specified by the Office f the SEC. the issuer must cmply with several bligatins, e.g. prvide an explicit business plan and audited financial statements, disclse material infrmatin (e.g. rights f the hlder f Digital Tkens), unveil the surce cde t be used in the ICO prcess, peridical reprt abut the prgress f the prject, and etc. the ffering may be ne-time r shelf fferings (ne f the key fcus pint fr the hearing) the issuer can nly receive Thai Baht r Cryptcurrencies listed by the Office f the SEC. ffering limit fr retail investrs in a deal: the higher f (1) 4 times the sharehlders' equity f the issuer; r (2) 70% f the ttal ffering amunt An ICO Prtal business requires apprval frm the Office f the SEC. The rles f ICO Prtals are similar t FAs in traditinal deals and funding prtals in equity crwdfunding deals. ICO Prtals are t cnduct analysis t ensure characteristics f the Digital Tkens t be ffered, the qualificatins f the issuer and the accuracy f the registratin statement and prspectus, as well as the accuracy f any infrmatin disclsed n the ICO Prtal as required by the Office f the SEC. ICO Prtals will be cnsidered as 'Financial Institutins' under AML/CTF laws and must cmply with several bligatins, including KYC/CDD and transactin reprting, etc. Under the latest draft regulatins, which may be subject t change: ICO Prtal must be a cmpany (either private r public) established in Thailand with a registered capital f nt less than THB 5 millin and with a prper management structure and wrking systems t supprt the tasks f an ICO Prtal.

6 Under the latest draft regulatins, which may be subject t change: investrs can invest up t the fllwing investment limits: Fr public fferings f Digital Tkens: Fr Institutinal Investrs, Ultra High Net Wrth Investrs, Private Equity Funds, Venture Capitalists, and Qualified Investrs: N limit. Fr Retail Investrs: 300,000 THB per persn per ffering. Fr trading Cryptcurrencies r Digital Tkens in an Exchange r with a Dealer r a Brker: N limit Prir apprval frm the SEC fr relevant types f businesses, namely Digital Asset Exchange, Digital Asset Brker, and/r Digital Asset Dealer, must be btained and several requirements must be cmplied with prir t the cmmencement f the business peratin such as maintaining sufficient funds t perate the business, prper KYC/CDD, cyber security, and fr certain types f business peratrs, requirements regarding asset safekeeping and fair marketplace. Fr existing business peratrs, there is a 90-day transitinal perid (i.e. with the current deadline being 14 August 2018) t apply fr apprval and t bring their businesses int cmpliance with the new regulatry requirements. Under the latest draft regulatins, which may be subject t change: Digital Asset Businesses must be established in Thailand and must cmply with several regulatry requirements t be able t submit a license applicatin 5 fr each Digital Asset Business as fllws: Digital Asset Exchange must have its sharehlders' equity THB 50 millin and must cnduct a prduct screening and prper KYC/CDD, maintain apprpriate cyber security systems, asset safekeeping and fair marketplace. The license fee fr perating an exchange f Digital Tkens: THB 2.5 millin and the same amunt f fee is applicable fr perating an exchange f Cryptcurrencies. The annual fee is 0.002% f the ttal trading value and the annual fee is in the range f THB 0.5 millin - THB 20 millin. 5 The License applicatin fee fr perating each f Digital Asset Businesses is THB 30,000

7 Digital Asset Brker must have its sharehlders' equity THB 25 millin and must take int accunt client suitability, cnduct a prper KYC/CDD, maintain apprpriate cyber security systems, and asset safekeeping. The license fee fr brkers f Digital Tkens: THB 1.25 millin and the same amunt f fee is applicable fr brkers f Cryptcurrencies. The annual fee is 0.001% f the ttal trading value and the annual fee is in the range f THB 0.25 millin - THB 10 millin. Digital Asset Dealer must have its sharehlders' equity THB 5 millin and has its key rle t cnduct prper KYC/CDD and maintain apprpriate cyber security systems. The license fee fr dealers f Digital Tkens: THB 1 millin and the same amunt f fee is applicable fr dealers f Cryptcurrencies. The annual fee is 1% f the prfit frm the dealing f Digital Assets and the annual fee is in the range f THB 0.1 millin - THB 5 millin. 4. Hw are Digital Assets Investrs Prtected? In rder t prevent any unjust r unfair trading f Digital Assets taking place in a Digital Asset Exchange, the Decree impses several ffenses including penalties against several unfair market practices similar t traditinal securities regulatins such as the disseminatin f false infrmatin, tipping, insider trading, frnt running and market manipulatin. Unauthrized ffering f Digital Tkens r unauthrized peratin f a Digital Asset Business are als subject t criminal liabilities. Furthermre, in rder t enhance the effectiveness f enfrcement f the law n Digital Assets, this Decree als takes n a similar cncept t securities law in impsing civil sanctins such as civil fines and the cmpensatry disgrgement f unjustly gained benefits. 5. Tax Implicatins Overview f the new tax law n Digital Assets The Amendment f the Revenue Cde Decree amended the Revenue Cde by adding new types f incme and impsing withhlding tax bligatin with regards t Cryptcurrencies and Digital Tkens. A share f prfit r any benefit derived frm hlding r having pssessin f Digital Tkens is regarded as taxable incme under Sectin 40(4)(h) f the Revenue Cde and capital gain frm the transfer f Cryptcurrencies r f Digital Tkens is regarded as taxable incme under Sectin 40(4)(i) f the Revenue Cde.

8 Any individual (bth Thai and nn-thai tax residents) wh derives incme as mentined abve will be subject t a withhlding tax at the rate f 15 percent. It is imprtant t nte that the 15% withhlding tax is nt a final tax, which means that the individual recipients will still be required t include such incme int their persnal incme tax return filing. Net incme (i.e. taxable incme less deductible expenses and allwances) is subject t persnal incme tax at prgressive rates f 5% t 35%. The 15% withhlding tax is creditable against the persnal incme tax payable. Althugh the Amendment f the Revenue Cde Decree des nt cver tax impsed n Thai and nn-thai tax resident crprate entities, the 15% withhlding tax will be impsed n nn-thai tax resident crprate entities under the existing tax law (Sectin 70), while Thai tax resident crprate entities wuld be required t include such incme in their crprate incme tax return filing. Net prfits (i.e. taxable incme less deductible expenses) are subject t crprate incme tax at 20%. On 15 May 2018, the Ministry f Finance and the Revenue Department held a press cnference t explain the Amendment f the Revenue Cde Decree. At the press cnference, the Revenue Department explained that Digital Assets are regarded as intangible assets under the existing VAT law; therefre, the trading f Digital Assets wuld be subject t VAT. Accrding t the press cnference, the Revenue Department will issue subrdinate pieces f legislatin in the near future t determine the withhlding tax rate fr crprate entities, which is likely t be at 15% and t exempt VAT n the trading f Digital Assets by individuals thrugh authrized exchanges. Hwever, an ICO issuer will be subject t bth crprate incme tax and VAT as a result f the ICO. This means that the ICO transactin, i.e., an ICO issuer issuing Digital Tkens in exchange fr either cash r Cryptcurrencies frm investrs, wuld ptentially trigger taxes n bth ICO issuer and investrs. Nevertheless, the tax regulatin n Digital Assets may change in the near future t ease the tax liabilities n ICO issuers and t prmte the Thai Digital Ecnmy.

9 Scenaris and tax liabilities 1. Cryptcurrency fr cryptcurrency 2. ICO fr cryptcurrency

10 3. Digital tkens fr cryptcurrency Ptential Issues Frm ur analysis, there are sme ptential taxatin issues that may arise frm the applicatin f the Amendment f the Revenue Cde Decree as addressed belw, if there are n subrdinated regulatins addressing these issues therwise. 1. Risk f incrrect tax withhlding In rder fr the buyer f Digital Assets t withhld tax crrectly, a seller must prvide evidence f the cst f Digital Assets sld t a buyer. There may be cmplicatins in case the Digital Assets were acquired at different times and the exact cst culd nt be clearly identified. This wuld result in the buyer withhlding tax incrrectly and being liable t withhlding tax shrtfall and surcharges. 2. Lack f cnversin methds Taxable gains frm the transfer f Digital Assets may ccur frm the exchange f ne type f Digital Asset fr anther (e.g., the exchange f Bitcin fr Ripple). In this case, it is pssible that bth exchanging parties will derive gains frm the transfer f Digital Assets, and are bth bliged t withhld tax. The Amendment f the Revenue Cde Decree des nt clearly determine the methd fr cnversin f Digital Assets int THB fr the calculatin f gains fr withhlding tax purpses. As there are varius exchanges fr Digital Assets in Thailand with varying exchange rates that may cause sme practical issues relating t the cnversin f Digital Assets fr withhlding tax purpse.

11 3. Increased burden fr the payment made by Digital Assets Fr further infrmatin, please cntact: Kmkrit Kietduriyakul ext Npprn Charenkitraj ext Kullarat Phngsathaprn ext Nwadays, Digital Assets may be used t purchase gds r services. A purchaser may be deemed t derive gains frm the transfer f Digital Assets, and a seller wuld therefre be bliged t withhld and remit tax t the Revenue Department under the Amendment f the Revenue Cde Decree. This wuld create burden fr the seller t btain the infrmatin n the cst f Digital Assets, as well as the market price f the gds and services supplied, t calculate gains frm the transfer. This wuld discurage the use and the acceptance f Digital Assets as a mean f payment fr the purchase price. There wuld als be cmplicatins if the gds r services supplied d nt have a market price. Fr example, when Cryptcurrencies are used t exchange fr newly issued Digital Tkens that d nt have a market price. We understand that the relevant authrities are drafting regulatins t address several issues. It is imprtant t find the best slutin and create efficient and fair mechanism t cllect tax relating t Digital Assets. We believe the laws and regulatins relating t Digital Assets will cntinue t be develped thrugh times similar t ther jurisdictins. Our FinTech team will cntinue t mnitr the legal and regulatry develpments and trends in FinTech areas.