Regulation of digital assets takes effect in Thailand

On Monday 14 May 2018, both: (i) the Royal Decree on Digital Assets Business B.E. 2561 (2018) which seeks to regulate the issue and trade of “Digital Assets” (DAB) and; (ii) the Amendment to the Revenue Code (no. 19) B.E. 2561 (2018), which seeks to tax profits from “Digital Assets” (DAT), came into effect (collectively the Digital Assets Regulations). The Digital Assets Regulations are the nation’s first attempt to regulate Digital Assets since the growth in popularity of cryptocurrencies and digital coins for some time.

The aims of the Digital Assets Regulations are to support the increase in demand and recognition of Digital Assets in Thailand as well as protect Thai investors from the extreme volatility of Digital Assets by requiring issuers and other operators of Digital Assets businesses to disclose adequate and correct information.

Under the DAB, Digital Assets include the following:

1. Cryptocurrency, which is defined as an electronic data unit built on an electronic system or network which is created for the purpose of being a medium of exchange for the acquisition of goods, services or other rights, including the exchange between Digital Assets and other electronic data unit specified by the Securities and Exchange Commission (SEC); and
2. Digital Token, which is defined as an electronic data unit built on an electronic system or network for the purpose of specifying the right of a person to participate in an investment in any project or business, or to acquire specific goods, services or other rights under an agreement between the issuer and the holder, including other electronic data unit specified by the SEC.

Under the DAB, the regulated activities are as follows:

1. A public offering of Digital Tokens, or commonly referred to as Initial Coin Offering (ICO), is subject to approval of the SEC and the offering can only be made through a Digital Token system provider (approved by the SEC) known as “ICO Portal”. Based on the current draft of the relevant subordinate regulations (published for public hearing), only a Thai incorporated company can seek approval for a public offering of Digital Tokens or to become a Digital Token system provider; and

2. Operating any business relating to Digital Assets,namely (i) Digital Assets Exchange (ii) Digital Assets Broker (iii) Digital Assets Dealer and (iv) other businesses to be further specified by the Minister, is also subject to approval of the SEC.

   Operators of Digital Assets businesses are also subject to unfair trades prohibitions, similar to prohibitions against unfair trades of securities, including prohibitions against insider trading, dissemination of false information, front running and market manipulation.

The Ministry of Finance is principally responsible for enforcement of the DAB and the Minister of Finance is authorized to issue ministerial regulations and appoint competent officers to perform their duties in accordance with DAB.

However, the DAB has also granted the SEC certain regulatory powers, including the power to issue rules, regulations and notifications regarding the issuance and trading of Digital Tokens, and the operation of Digital Assets business.

Penalties under the DBA include both criminal and civil sanctions. Criminal sanctions include a maximum fine of Baht 1,000,000; and/or imprisonment for a maximum term of 5 years. Civil sanctions include a fine, in the amount to be determined by the SEC, trading bans and a ban from being a director or an executive of any Digital Assets business operator.

Under the DAT, (i) share of profits or other benefits derived from the holding Digital Tokens and (ii) benefits gained, surplus to the investment amount, from the transfer of Digital Assets, are treated as assessable income, and are subject to 15 per cent withholding tax.

Existing Digital Assets business operators are required to obtain approval from the SEC to conduct Digital Assets business within 90 days from the date the Digital Assets Regulations came in effect (i.e by 14 August 2018 at the latest). However, the rules and regulations for such approval are still subject to the public hearing process which is expected to end on 30 May 2018. It is expected that the rules and regulations regarding the approval for the issuance and sale of Digital Tokens and the approval for the Digital Assets business operators will be released within one month from the end of public hearing process.