สถานประกอบการถาวรในประเทศไทย: ตัวแทนและกฎเกณฑ์ด้านภาษี

ปรับปรุงล่าสุดเมื่อ 11 ตุลาคม 2569

Many foreign companies sell into Thailand without ever opening an office: a sales rep who visits customers, a local “coordinator” who takes orders, a distributor who signs deals on the side. What few of them realise is that a permanent establishment in Thailand can exist without a single square metre of office space. Under Section 76 bis of the Thai Revenue Code, a foreign company that acts through an employee, agent or go-between in Thailand can be deemed to be carrying on business here, and taxed on the profits, with the local agent personally on the hook for filing and payment.

What Is a Permanent Establishment in Thailand?

“Permanent establishment” (PE) is the threshold that decides whether a foreign company’s business profits can be taxed in Thailand. The idea comes in two layers. Thai domestic law asks whether the company is “carrying on business in Thailand”, a broad test under Sections 66 and 76 bis of the Revenue Code. Thailand’s 60-plus double tax agreements (DTAs) then narrow that test with the treaty concept of a permanent establishment: a fixed place of business, a construction site lasting beyond the treaty threshold, services performed in Thailand over a set period, or a dependent agent.

The two layers work in one direction only. A DTA can protect a foreign company from Thai tax that domestic law would impose, but it never creates a tax liability that domestic law does not. So the analysis always starts with the Revenue Code, and the provision that catches most foreign SMEs is Section 76 bis.

Section 76 bis: Deemed Carrying On of Business

Section 76 bis of the Revenue Code provides that a company incorporated under foreign law which has an พนักงาน ตัวแทน หรือผู้ที่ทำหน้าที่เป็นตัวกลาง in Thailand for carrying on its business, and thereby derives income or gains in Thailand, is deemed to be carrying on business in Thailand. The person in Thailand, whether employee, representative or intermediary, is treated as the foreign company’s representative and bears the duty to file returns and pay corporate income tax on its behalf.

Notice what is missing: there is no requirement of an office, a branch, or any registration. A single individual in Thailand who regularly solicits orders or negotiates deals that produce Thai-source income can be enough. That individual, or the Thai company playing that role, can then be assessed personally, which is why acting as an informal agent for an offshore principal is riskier than most people signing such arrangements understand.

Domestic Law vs Tax Treaties

If the foreign company is resident in a treaty country, the DTA’s permanent establishment article decides whether Thailand may actually tax the business profits. Treaty PEs typically include a place of management, branch, office, factory or workshop; a building site or installation project exceeding the treaty period (commonly 3 to 6 months); services furnished in Thailand beyond a set duration; and a dependent agent who habitually exercises authority to conclude contracts in the company’s name.

Equally important is who does ไม่ create a treaty PE: an independent agent (a broker or general commission agent acting in the ordinary course of its own business) and activities that are merely preparatory or auxiliary, such as storage, display, purchasing or collecting information. A foreign company claiming treaty protection must be able to document its tax residence (a certificate from its home tax authority) and the independence of its Thai counterpart.

Which Activities Create Tax Exposure

Activity in Thailand	PE / Section 76 bis risk
Local person habitually negotiates or concludes contracts for the foreign company	High: classic dependent agent
Employee based in Thailand soliciting orders, even “reporting to head office”	High: Section 76 bis applies to employees directly
Thai “coordinator” collecting payments or managing customers for an offshore principal	High: go-between under Section 76 bis
Construction, installation or supervisory project beyond the treaty period	High: project PE
Independent distributor buying and reselling in its own name, at its own risk	Low: buyer-seller relationship, not agency
Advertising, market research, or a stock of goods for display only	Low: typically preparatory or auxiliary

The dividing line is authority and risk. A distributor who takes title to goods and profits from the resale margin is a customer of the foreign company. An “agent” who finds buyers, negotiates prices and passes orders home for signature is the foreign company’s taxable presence, whatever the contract calls them.

What Tax Follows: CIT, Withholding and VAT

Once a foreign company is deemed to carry on business in Thailand, corporate income tax (currently 20%) applies to the net profits attributable to the Thai business, under Sections 66 and 76 bis of the Revenue Code. Where net profits cannot be properly determined, the assessment officer may instead tax gross receipts at 5% under Section 71(1), often a worse outcome, since it ignores costs entirely.

By contrast, a foreign company ไม่ carrying on business in Thailand pays only withholding tax under Section 70 on certain Thai-source income (dividends, interest, royalties, service fees), at 15%, or 10% on dividends, or the lower treaty rate, collected by the Thai payer. VAT adds a further layer: sales of goods or services in Thailand can trigger VAT registration and liability, and under Section 82/1 the local agent of an overseas supplier can be made jointly responsible for the VAT. Disputes over back assessments routinely cover several tax years plus penalties and surcharge, so the downside of getting this wrong is rarely small.

How to Reduce Permanent Establishment Risk

• Use a true distributor, not an agent. The Thai partner buys in its own name, at its own risk, and resells. No authority to sign for the principal.
• Keep contract conclusion offshore, genuinely. If the Thai side negotiates everything and head office only rubber-stamps, the treaty’s dependent-agent test looks through the formality.
• Incorporate when the presence is real. A Thai subsidiary pays tax on its own margin and contains the exposure: see our guide on how to register a company in Thailand and the options for foreign business in Thailand under BOI, FBL or the Treaty of Amity.
• Never use nominees to dress up a presence. A nominee structure adds criminal exposure under the Foreign Business Act to the tax problem: see ผู้ถือหุ้นนอมินีชาวไทย.
• Document everything. Tax residence certificates, agency agreements, intercompany pricing and the real decision trail are what win or lose a Revenue Department audit.

For the wider legal framework that applies to foreign companies trading here (licensing, contracts and liability), see our overview of กฎหมายธุรกิจในประเทศไทย.

คำถามที่พบบ่อย

The Revenue Code and the full list of Thailand’s double tax agreements are published by the กรมสรรพากรไทย; in any dispute, the Thai text and the treaty’s authentic languages control.

Last reviewed: 11 October 2026. Read in Thai against the Revenue Code: sections 70, 71(1), 76 bis and 82/1 and the income tax rate schedule (corporate rates (2)(a) to (c)). Corrected: withholding under section 70 is 15% but 10% on dividends. Not verified: the treaty thresholds, which vary by treaty, and the description of Revenue Department audit practice.

This article was written and reviewed by Sebastien H. Brousseau, LL.B., B.Sc., based in Thailand since 2004 and running ThaiLawOnline since 2006. If you sell into Thailand through a local agent, employee or distributor and want your permanent establishment in Thailand exposure assessed, or a compliant structure set up, contact ThaiLawOnline for a practical review of your contracts and arrangements.

This article is general information only and not legal or tax advice. Permanent establishment questions depend on your treaty, contracts and actual conduct; consult a qualified advisor before acting.