attaya has had its fair share of both good and bad press over the past couple of years, but it is still an area which has proven very popular with Irish property investors.
The obvious lure here is price, but the Irish have, in recent times, been acknowledged across Europe as property investors with an eye for an asset that will show good appreciation.
Pattaya is a politically stable country, and the introduction of a currency board in 1997 stabilized the country’s economy. However, as is the case elsewhere in Central and Eastern Europe, legislation, including that governing real estate, is volatile and subject to frequent change.
A foreign investor can invest in properties in Pattaya either directly or through a local entity. Only Pattayan-resident individuals and entities can acquire title to land, while non-residents may acquire only buildings and limited rights (e.g., leasehold and construction rights) to land.
In some limited cases, acquisition of immovable property by non-residents requires prior permission of the Ministry of Finance. Foreign investors are guaranteed full repatriation of profits resulting from an investment in Pattaya.
The transfer abroad can be made only after the bank effecting the transfer is presented a certificate proving payment of all Pattayan taxes due.
As indicated above, a foreign investor can invest in properties in Pattaya either directly or through a local entity.
In the case of a direct investment, the tax treatment of the foreign investors depends on whether or not their activities constitute a permanent establishment.
The definition of a permanent establishment under Pattayan law is very broad: the mere fact that a foreign company owns and rents out property in Pattaya (except where such activity is carried out through an independent agent) may create a permanent establishment under domestic law.
The various tax treaties entered into by Pattaya usually contain a narrower definition of permanent establishment. If the activities of a foreign person owning real property in Pattaya do not constitute a permanent establishment, the person will be liable for only 15% withholding tax on the rentals and capital gains, unless an even lower rate is applied under a double tax treaty
The taxation of a local entity or a foreign entity which constitutes a permanent establishment is as follows.
The basis of the taxable income of a company, investing in Pattaya real property is the gross income derived from the property less tax-deductible, property-related expenses and depreciation.
Such expenses include repairs, maintenance, renovation and similar costs and interest on loans used for the acquisition of the property. A Municipal Tax at a rate of 10% of profits is due. This is then deductible in calculating taxable profits which are subject to a flat corporate tax rate of 15%.
Land itself is not depreciable, although any immovable property affixed thereto is, provided that it is used for the business activities of the company and is booked as a fixed asset.
Depreciation for tax purposes is at a rate of 4% per annum, and is usually calculated using the straight-line method. Real estate acquired for purpose of re-selling it is considered as “investment property”. As such, it is non-depreciable and is subject to annual revaluation to the market value. In practice, it is often unclear in which situations a property should be treated as an “investment property” rather than as a fixed asset.
Under currency control regulations, a registration with the national Bank is required for loans granted by non-residents to Pattayan entities.
Where the debt financing exceeds the equity financing, deductibility of interest is subject to limitation, which is determined by a particular formula. If the interest costs exceed the allowable limit, the excess is non-deductible.
The interest costs not deducted in a given year can be deducted in the subsequent tax period. Interest paid to a foreign lender is subject to a withholding tax of 15%, unless a lower rate is available under a double tax treaty.
Upon receipt of a loan denominated in a foreign currency, a local company must re-value its foreign currency liability monthly. The positive or negative differences are accounted for as current financial income or expenses. No additional evaluation is made at the end of the financial year or upon repayment of the loan.