We understand that under Thai laws, rental of tools is subject to a 15% WHT. However we have to refer to the double tax treaty between Switzerland and Thailand which is in force and supersedes local laws of Thailand and Switzerland to see if a lower rate is foreseen.
The double tax treaty says that:
- Art 12: the WHT that Thailand can apply on royalties (rental of tools is considered as royalties) paid by a Thai entity to a Swiss entity is 15%
- In the Protocol: the WHT on royalties foreseen by art 12 is of 10% as long as Switzerland:
o does not, according to its internal law, levy a tax at source on royalties paid to non-residents and
o for tax credit purposes, in general allows as a deductible expense 50 per cent of the gross amount of the royalties, royalties paid from a resident of Thailand to a resident of Switzerland shall be taxable in Thailand at a rate not exceeding 10 per cent of such gross amount.
Peter from the tax department in Switzerland (in copy) confirmed that the conditions requested by the protocol for the limitation of the WHT to 10% are fulfilled.
As a consequence, the double tax treaty shall be applied to the rental of tools between Alstom Switzerland and Alstom Thailand, and Alstom Thailand should rather apply the 10% WHT of the double tax treaty instead of the internal rate of 15%.
We have checked if there were some conditions/formalities to fulfill (application/declaration to RD) in order for a Thai company to apply a double tax treaty rate which is lower than the rate under Thai laws and we have found no conditions. Alstom Thailand should be able to apply the 10% rate provided by the double tax treaty automatically without having to make an application/declaration to RD.
Please note that we found on the RD website confirmation that RD recognizes the rate of 10% applicable to royalties paid to a Swiss entity by a Thai entity and that there is no conditions/formalities to fulfill to apply this rate of 10%. Please see the links below.
http://www.rd.go.th/publish/29163.0.htmlnote
http://www.rd.go.th/publish/23520.0.html
So I consider there is no risk for Alstom Thailand to apply the rate of 10% to Alstom Switzerland for the rental of tools as soon as Peter confirmed that the rate of 10% is applicable under the double tax treaty.
We at your disposal in case you need to further discuss on this.