Abstract:
Every country utilizes its geographical border as a jurisdiction to assert taxing authority by analyzing the nexus between the taxpayer and the source country. There are two principles to consider the nexus ; Source Rule and Residence Rule. Both principles depend on the physical presence of the taxpayer. However, these principles are recently challenged by electronic commerce. Since the innovation of internet, people around the world can trade with one another on the cyber space and eliminate the need for physical presence in other countries. This situation has raised the question of how to determine the nexus to tax. Under the Thai Revenue Code, the imposition of income tax on foreign company trading tangible goods by electronic commerce is subject to section 76 bis. This section requires the activities to be classified in order to analyze their nexuses whether they can be considered as operating business in Thailand. The trading of tangible goods via internet involves five activities. These are (i) maintaining server in Thailand, (ii) trading via website, (iii) using Internet Service Provider (ISP) in Thailand, (iv) using telecommunication infrastructure and (v) trading by software agent. The existing interpretations of section 76 bis have never been extended to trading by internet. Therefore, a new provision should be implemented so as to render a foreign company, which has automated equipment business operated in Thailand subject to taxation. Moreover, a foreign company should be taxed if it conducts business in Thailand by any new technological mediator and generates profits in substance in Thailand. These will empower taxing authority of Thailand to collect income tax from foreign company. Although the positive point of the latter concept will enhance taxing authority, many impacts may occur , namely the tax treatment of the other income, the procedure to enforce a foreign company to pay tax, the method to calculate {176}profits in substance{174} and the conflict of neutrality principle. Hence, these problems should be solved before applying the concept. On the other hand, if any country who has a tax treaty with Thailand applies the OECD commentaries which are internationally accepted, Thailand should preserve its right on a case by case basis in order to protect its national interest.