Laws of Kenya Active 2013Tax Appeals Tribunal Act
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LAWS OF KENYA THE TAX APPEALS TRIBUNAL ACT CAP. 469A Revised and published by the National Council for Law Reporting with the authority of the Attorney-General as gazetted by the Government Printer www.kenyalaw.org Kenya Tax Appeals Tribunal Act Cap. 469A Legislation as at 1 July 2023 By Kenya Law and Laws.Africa. Share widely and freely. www.kenyalaw.org | [email protected] FRBR URI: /akn/ke/act/2013/40/eng@2023-07-01 There is no copyright on the legislative content of this document. This PDF copy is licensed under a Creative Commons Attribution NonCommercial ShareAlike 4.0 License (CC BY-NC- SA 4.0). This license enables reusers to distribute, remix, adapt, and build upon the material in any medium or format for noncommercial purposes only, and only so long as attribution is given to the creator. If you remix, adapt, or build upon the material, you must license the modified material under identical terms. CC BY-NC-SA includes the following elements: • BY: credit must be given to the creator. • NC: Only noncommercial uses of the work are permitted. • SA: Adaptations must be shared under the same terms. Share widely and freely. the creator. • NC: Only noncommercial uses of the work are permitted. • SA: Adaptations must be shared under the same terms. Share widely and freely. Tax Appeals Tribunal Act (Cap. 469A) Contents Part I – PRELIMINARY ....................................................................................................................................................................................... 1 1. Short title .................................................................................................................................................................................................... 1 2. Interpretation ............................................................................................................................................................................................. 1 Part II – ESTABLISHMENT OF TAX APPEALS TRIBUNAL ...................................................................................................................... 2 3. Establishment of the Tribunal ............................................................................................................................................................. 2 4. ................................................................................................................................................. 2 4. Membership of the Tribunal ................................................................................................................................................................ 2 4A. Qualifications for appointment ........................................................................................................................................................ 2 4B. Appointment procedures .................................................................................................................................................................... 2 4C. Staggered appointment ....................................................................................................................................................................... 3 5. Tenure of office ......................................................................................................................................................................................... 3 6. Oath of office ............................................................................................................................................................................................. 3 7. ................................................................................................................................................. 3 7. Staff of the Tribunal ................................................................................................................................................................................ 3 7A. Functions of the Secretary ................................................................................................................................................................. 4 8. Remuneration and payment of expenses ....................................................................................................................................... 4 8A. Expenses of the Tribunal ................................................................................................................................................................... 4 9. Arrangement of business ...................................................................................................................................................................... 5 10. Constitution of a panel ....................................................................................................................................................................... 5 11. ................................................................................................................................................ 5 11. Clerk of a panel ..................................................................................................................................................................................... 5 Part III – APPEALS TO THE TRIBUNAL ....................................................................................................................................................... 5 12. Appeals to the Tribunal ...................................................................................................................................................................... 5 13. Procedure for appeal ............................................................................................................................................................................ 5 14. Exemption from the provisions of Cap. 21 .................................................................................................................................. 6 15. Submission of material documents to the Tribunal by the Commissioner ....................................................................... 6 16. 15. Submission of material documents to the Tribunal by the Commissioner ....................................................................... 6 16. Hearing ...................................................................................................................................................................................................... 7 17. Witnesses ................................................................................................................................................................................................... 7 18. Order to stay or affect the implementation of the decision under review ....................................................................... 7 19. Conflict of interest ................................................................................................................................................................................ 7 20. Powers of the Tribunal during a proceeding ............................................................................................................................... 7 21. Contempt of Tribunal ........................................................................................................................................................................... 8 22. Disobedience of summons to give evidence, etc. ................................................................................................. 8 22. Disobedience of summons to give evidence, etc. ..................................................................................................................... 8 23. Expert evidence ...................................................................................................................................................................................... 8 24. Procedure of the Tribunal ................................................................................................................................................................... 9 25. Representation before the Tribunal ................................................................................................................................................ 9 26. Opportunity to make submissions concerning evidence ........................................................................................................ 9 ity to make submissions concerning evidence ........................................................................................................ 9 27. Discontinuance, dismissal or reinstatement of an appeal ...................................................................................................... 9 28. Power of the Tribunal where the parties reach agreement ................................................................................................... 9 29. Decisions of the Tribunal ................................................................................................................................................................. 10 29A. Review of decree or orders .......................................................................................................................................................... 10 30. Burden of proof ................................................................................................................................................................................... 11 31. Enforcement of orders for costs .................................................................................................................................................... 11 32. ............................................................................................................................................... 11 32. Appeals to the High Court on decisions of the Tribunal ...................................................................................................... 11 32A. Filing of documents ........................................................................................................................................................................ 11 Part IV – OFFENCES AND EVIDENCE ........................................................................................................................................................ 11 33. Offences .................................................................................................................................................................................................. 11 34. Liability of employers and officers of corporate bodies ....................................................................................................... 12 35. Protection of officers ......................................................................................................................................................................... 12 36. ............................................................................................................................................... 12 36. Disclosure of information ................................................................................................................................................................ 12 37. General penalty .................................................................................................................................................................................... 13 38. Evidence .................................................................................................................................................................................................. 13 39. Power of sentence .............................................................................................................................................................................. 13 40. Power of officers to prosecute ....................................................................................................................................................... 13 Part V – CONSEQUENTIAL AMENDMENTS AND SAVINGS ................................................................................................................. 13 41. ENTIAL AMENDMENTS AND SAVINGS ................................................................................................................. 13 41. [Spent] ..................................................................................................................................................................................................... 13 42. [Spent] ..................................................................................................................................................................................................... 13 43. [Repealed by Act No. 38 of 2016, s. 65.] ................................................................................................................................... 13 44. Saving provisions ................................................................................................................................................................................ 13 SCHEDULE [s. 6] ................................................................................................................................................................................................. 14 ................................................................................................................................................... 14 Tax Appeals Tribunal Act (Cap. 469A) Kenya TAX APPEALS TRIBUNAL ACT CAP. 469A Published in Kenya Gazette Vol. CXV—No. 170 on 6 December 2013 Assented to on 27 November 2013 Commenced on 1 April 2015 by Tax Appeals Tribunal Act Commencement [Amended by Finance Act, 2015 (Act No. 14 of 2015) on 1 October 2015] [Amended by Finance Act, 2016 (Act No. 38 of 2016) on 1 January 2017] [Amended by Finance Act, 2017 (Act No. 15 of 2017) on 1 January 2018] [Amended by Finance Act, 2018 (Act No. 10 of 2018) on 1 October 2018] [Amended by Finance Act, 2020 (Act No. 8 of 2020) on 30 June 2020] [Amended by Tax Appeals Tribunal (Amendment) Act, 2022 (Act No. 7 of 2022) on 21 March 2022] [Revised by 24th Annual Supplement (Legal Notice 221 of 2023) on 31 December 2022] [Amended by Finance Act, 2023 (Act No. 4 of 2023) on 1 July 2023] An Act of Parliament to make provision for the establishment of a Tribunal; for the management and administration of tax appeals, and for connected purposes Part I – PRELIMINARY 1. Short title This Act may be cited as the Tax Appeals Tribunal Act. 2. dministration of tax appeals, and for connected purposes Part I – PRELIMINARY 1. Short title This Act may be cited as the Tax Appeals Tribunal Act. 2. Interpretation In this Act, unless the context otherwise requires— “appeal” means an appeal to the Tribunal against a decision of the Commissioner under any of the tax laws; “Cabinet Secretary” means the Cabinet Secretary responsible for matters relating to finance; “Chairperson” means the Chairperson of the Tribunal appointed under section 4; "Commission" means the Judicial Service Commission established under Article 171 of the Constitution; "Commissioner” means the Commissioner appointed under Kenya Revenue Authority Act; “member” means a member of the Tribunal appointed under section 4; “Secretary” means the Secretary of the Tribunal appointed under section 7; “tax” includes duty, tax or any imposition levied under any tax law; “tax agent” means a person acting on behalf of another person on matters relating to tax and is registered as such by the Commissioner; “tax law” means— (a) the Income Tax Act (Cap. 470); (b) the Excise Duty Act (Cap. 472); or (c) the Value Added Tax (Cap. 476); (d) the East African Community Customs Management Act, 2004; 1 (Cap. 470); (b) the Excise Duty Act (Cap. 472); or (c) the Value Added Tax (Cap. 476); (d) the East African Community Customs Management Act, 2004; 1 Tax Appeals Tribunal Act (Cap. 469A) Kenya (e) any other tax legislation administered by the Commissioner; “Tribunal” means the Tax Appeals Tribunal established under section 3. [Act No. 7 of 2022, s. 2.] Part II – ESTABLISHMENT OF TAX APPEALS TRIBUNAL 3. Establishment of the Tribunal There is established a Tribunal to be known as the Tax Appeals Tribunal to hear appeals filed against any tax decision made by the Commissioner. 4. Membership of the Tribunal The Tribunal shall consist of the following members, appointed by the Judicial Service Commission— (a) a Chairperson; and (b) not less than fifteen but not more than twenty other members, of whom not less than five and not more than nine shall be Advocates of the High Court of Kenya. [Act No. 7 of 2022, s. 3.] 4A. twenty other members, of whom not less than five and not more than nine shall be Advocates of the High Court of Kenya. [Act No. 7 of 2022, s. 3.] 4A. Qualifications for appointment A person shall not be appointed a Chairperson or a member of the Tribunal under section 4 unless that person— (a) in case of the Chairperson, is qualified to be appointed as a Judge of the High Court; and (b) in case of a member— (i) is of high moral character and integrity in accordance with Chapter six of the Constitution; (ii) has a degree in law, business, finance, public finance, economics, insurance or related discipline from a university recognized in Kenya or any other relevant qualification from an institution recognized in Kenya; (iii) has at least ten years' experience in matters relating to the discipline referred to under subparagraph (ii); (iv) is not a public officer or a tax agent; (v) has not at any time within the preceding five years been an employee of the Kenya Revenue Authority; (vi) has met his tax obligations; (vii) has not been convicted of an offence under any law; and (viii) has not been adjudged bankrupt by a court of competent jurisdiction. [Act No. 7 of 2022, s. 3.] 4B. convicted of an offence under any law; and (viii) has not been adjudged bankrupt by a court of competent jurisdiction. [Act No. 7 of 2022, s. 3.] 4B. Appointment procedures The Chairperson and members of the Tribunal shall be recruited and appointed in accordance with the provisions of the Third Schedule to the Judicial Service Act (Cap. 8A). [Act No. 7 of 2022, s. 3.] 2 be recruited and appointed in accordance with the provisions of the Third Schedule to the Judicial Service Act (Cap. 8A). [Act No. 7 of 2022, s. 3.] 2 Tax Appeals Tribunal Act (Cap. 469A) Kenya 4C. Staggered appointment The Commission shall appoint the members of the Tribunal in a staggered manner so as to ensure that, at all times, at least one third of the members are in office. [Act No. 7 of 2022, s. 3.] 5. Tenure of office (1) The Chairperson or a member of the Tribunal shall hold office— (a) in case of the Chairperson, for a term not exceeding five years but shall not be eligible for re- appointment; and (b) in case of a member, for a term not exceeding three years but shall be eligible for re- appointment for one further term of three years. (1A) The Chairperson or a member of the Tribunal shall serve on a fulltime basis. be eligible for re- appointment for one further term of three years. (1A) The Chairperson or a member of the Tribunal shall serve on a fulltime basis. (2) A person appointed under this Act shall cease to hold office if that person— (a) resigns from office by notice in writing addressed to the Judicial Service Commission; (b) becomes a public servant or an employee of the Kenya Revenue Authority, or a tax agent; (c) is absent from three consecutive meetings of the Tribunal without the permission of the Chairperson; (d) is adjudged bankrupt by a Court of competent jurisdiction; (e) is convicted of an offence under any tax law or of a criminal offence; (f) is unable to perform the functions of the office arising by reason of infirmity of body or mind; or (g) is otherwise unable or unfit to discharge the functions of the office. (3) Deleted by Act No. 7 of 2022, s. 4; (4) Deleted by Act No. 7 of 2022, s. 4; (5) Deleted by Act No. 7 of 2022, s. 4; (6) Deleted by Act No. 7 of 2022, s. 4. [Act No. 7 of 2022, s. 4.] 6. Oath of office A person appointed as the Chairperson or a member of the Tribunal shall, before assuming office, take or subscribe to the oath or affirmation set out in the Schedule before the Chief Registrar of the Judiciary. 7. al shall, before assuming office, take or subscribe to the oath or affirmation set out in the Schedule before the Chief Registrar of the Judiciary. 7. Staff of the Tribunal (1) There shall be a Secretary to the Tribunal who shall be competitively appointed by the Commission. (2) A person shall not be qualified for appointment under subsection (1) unless that person— (a) has a degree in law, business, finance, economics, insurance or related field from a university recognized in Kenya; (b) has a minimum of ten years' experience in matters relating to the discipline referred to in paragraph (a) five of which should have been in senior management; 3 mum of ten years' experience in matters relating to the discipline referred to in paragraph (a) five of which should have been in senior management; 3 Tax Appeals Tribunal Act (Cap. 469A) Kenya (c) has completed five years since he left the Authority, if the person is former employee of the Kenya Revenue Authority; (d) is not a tax agent; (e) has not been convicted of a felony; (f) has not been adjudged bankrupt by a court of competent jurisdiction; (g) has met his tax obligations; and (h) meets the requirements of Chapter Six of the Constitution. (3) The Tribunal shall have such other staff, recruited competitively, by the Commission, as may be necessary for the proper discharge of the functions of the Tribunal under the Act. [Act No. 38 of 2016, s. 60, Act No. 7 of 2022, s. 5.] 7A. as may be necessary for the proper discharge of the functions of the Tribunal under the Act. [Act No. 38 of 2016, s. 60, Act No. 7 of 2022, s. 5.] 7A. Functions of the Secretary The functions of the Secretary of the Tribunal shall include— (a) the day-to-day management of the affairs of the Tribunal; (b) keeping proper records of tax appeals filed, judgment delivered and the tax appeals settled out of the Tribunal; (c) under the guidance of the Chairperson, providing policy and strategic leadership of the Tribunal and the Secretariat; (d) mobilizing and managing the resources of the Tribunal; (e) coordinating the preparation and approval of annual budget estimates by the Tribunal through a resolution by not less than half of the members; (f) overseeing the financial management and administrative functions of the Tribunal in accordance with the Public Finance Management Act (Cap. 412A); (g) keeping proper books of account of the financial affairs of the Tribunal; and (h) any other functions that may be assigned by the Chairperson from time to time. [Act No. 7 of 2022, s. 6.] 8. Remuneration and payment of expenses (1) The Chairperson or a member of the Tribunal shall be paid such remuneration as may be determined by the Commission in consultation with the Salaries and Remuneration Commission, from time to time. all be paid such remuneration as may be determined by the Commission in consultation with the Salaries and Remuneration Commission, from time to time. (2) The expenses of the Tribunal shall be paid out of the funds of the Tribunal. (3) The staff of the Tribunal shall be paid such remuneration as may be determined by the Commission in consultation with the Salaries and Remuneration Commission from time to time. [Act No. 7 of 2022, s. 7.] 8A. Expenses of the Tribunal The expenses of the Tribunal shall be paid out of the Judiciary Fund. [Act No. 7 of 2022, s. 8.] 4 No. 7 of 2022, s. 7.] 8A. Expenses of the Tribunal The expenses of the Tribunal shall be paid out of the Judiciary Fund. [Act No. 7 of 2022, s. 8.] 4 Tax Appeals Tribunal Act (Cap. 469A) Kenya 9. Arrangement of business (1) The Chairperson shall be responsible for ensuring the orderly and expeditious discharge of the mandate of the Tribunal. (2) Without limiting the generality of subsection (1), the Chairperson shall— (a) constitute a panel to hear any matter before the Tribunal; (b) determine the place at which a panel may sit; and (c) determine the procedure for the conduct of the business of the Tribunal. (3) The Tribunal shall submit an annual report to the Chief Justice on its performance in the preceding year. [Act No. 7 of 2022, s. 9.] 10. Constitution of a panel (1) A panel constituted for any proceedings shall have at least three members, at least one of whom shall be an advocate of the High Court. (2) At a hearing of a matter before the panel— (a) if the Chairperson is a member of the panel as constituted, the Chairperson shall preside; or (b) in any other case, the Chairperson shall designate one of the members of the panel who being an advocate of the High Court or a member of the Institute of Certified Public Accountants of Kenya, to preside over the proceedings. panel who being an advocate of the High Court or a member of the Institute of Certified Public Accountants of Kenya, to preside over the proceedings. (3) Where a member of the panel ceases to be such member, or is not available for the proceedings, the Chairperson of the Tribunal shall assign another member to the panel and the proceedings shall continue. [Act No. 10 of 2018, s. 21.] 11. Clerk of a panel (1) There shall be a clerk for each panel, who shall be the secretary to the panel. (2) A clerk to a panel shall be designated by the Secretary to the Tribunal from among the staff of the Tribunal. [Act No. 38 of 2016, s. 61, Act No. 7 of 2022, s. 10.] Part III – APPEALS TO THE TRIBUNAL 12. Appeals to the Tribunal A person who disputes the decision of the Commissioner on any matter arising under the provisions of any tax law may, subject to the provisions of the relevant tax law, upon giving notice in writing to the Commissioner, appeal to the Tribunal, Provided that such person shall before appealing, pay a non-refundable fee of twenty thousand shillings. 13. Procedure for appeal (1) A notice of appeal to the Tribunal shall— (a) be in writing or through electronic means; 5 of twenty thousand shillings. 13. Procedure for appeal (1) A notice of appeal to the Tribunal shall— (a) be in writing or through electronic means; 5 Tax Appeals Tribunal Act (Cap. 469A) Kenya (b) be submitted to the Tribunal within thirty days upon receipt of the decision of the Commissioner. (2) The appellant shall, within fourteen days from the date of filing the notice of appeal, submit enough copies, as may be advised by the Tribunal, of— (a) a memorandum of appeal; (b) statements of facts; and (c) the appealable decision; and (d) such other documents as may be necessary to enable the Tribunal to make a decision on the appeal. (3) The Tribunal may, upon application in writing or through electronic means, extend the time for filing the notice of appeal and for submitting the documents referred to in subsection (2). (4) An extension under subsection (3) may be granted owing to absence from Kenya, or sickness, or other reasonable cause that may have prevented the applicant from filing the notice of appeal or submitting the documents within the specified period. (5) An appellant shall serve a copy of the appeal on the Commissioner within two days after giving notice of appeal to the Tribunal. specified period. (5) An appellant shall serve a copy of the appeal on the Commissioner within two days after giving notice of appeal to the Tribunal. (6) The appellant shall, unless the Tribunal orders otherwise, be limited to the grounds stated in the appeal or documents to which the decision relates. (7) The Tribunal shall hear and determine an appeal within ninety days from the date the appeal is filed with the Tribunal. Provided that in case the panel is not able to conclude hearing an appeal within ninety days, the panel may through a resolution made by not less than half of its Members, extend the time for hearing and determination of the appeal by not more than thirty days. (8) The parties to an appeal may apply, in writing, to the Tribunal to settle the dispute out of the Tribunal and in such a case, the time taken to resolve or conclude the settlement out of the Tribunal shall be excluded when calculating the period contemplated in subsection (7). (9) For the purposes of this section, “appealable decision” has the meaning assigned to it in section 3(1) of the Tax Procedures Act (Cap. 469B). [Act No. 14 of 2015, s. 61, Act No. 38 of 2016, s. 62, Act No. 15 of 2017, s. 50, Act No. 10 of 2018, s. 22, Act No. 8 of 2020, s. 23, Act No. 7 of 2022, s. 11, Act No. 4 of 2023, s. 39.] 14. Exemption from the provisions of Cap. 0, Act No. 10 of 2018, s. 22, Act No. 8 of 2020, s. 23, Act No. 7 of 2022, s. 11, Act No. 4 of 2023, s. 39.] 14. Exemption from the provisions of Cap. 21 The provisions of the Civil Procedure Act (Cap. 21) shall not apply to the proceedings of the Tribunal. 15. Submission of material documents to the Tribunal by the Commissioner (1) The Commissioner shall, within thirty days after being served with a copy of an appeal to the Tribunal, submit to the Tribunal enough copies as may be advised by the Tribunal, of— (a) a statement of facts including the reasons for the tax decision; and (b) any other document which may be necessary for review of the decision by the Tribunal. (2) The Tribunal may require the Commissioner to submit to the Tribunal additional documents that, in the opinion of the Tribunal, may be in the Commissioner’s possession or control. 6 ommissioner to submit to the Tribunal additional documents that, in the opinion of the Tribunal, may be in the Commissioner’s possession or control. 6 Tax Appeals Tribunal Act (Cap. 469A) Kenya (3) The Commissioner shall serve the appellant with a copy of the statement of facts and other documents required under this section within two working days from the date of submission to the Tribunal. (4) The Tribunal may, upon application in writing by the Commissioner, extend the time for submitting and serving the statement of facts and the documents referred to in this section, where it is proved to the satisfaction of the Tribunal, that the delay is not inordinate or other reasonable cause that may have prevented the Commissioner from submitting and serving the statement of facts and the documents within the specified period. [Act No. 38 of 2016, s. 63.] 16. Hearing (1) The Secretary to the Tribunal shall advise all parties in writing or through electronic means of the time and place of the hearing at least fourteen days before the commencement of hearing. (2) Evidence before the Tribunal may be given orally or through affidavits or in such manner as the Tribunal may direct. the commencement of hearing. (2) Evidence before the Tribunal may be given orally or through affidavits or in such manner as the Tribunal may direct. (3) If it is proved to the satisfaction of the Tribunal that owing to absence of the appellant from Kenya or due to sickness or any other reasonable cause, the appellant is prevented from attending or the hearing of the appeal on the date and the time fixed for hearing, the Tribunal may adjourn the hearing of the appeal for such reasonable time as it may think appropriate. [Act No. 7 of 2022, s. 12.] 17. Witnesses The Tribunal may call any person to attend at a hearing and give evidence including production of any document if the Tribunal believes such evidence shall assist in its deliberations. 18. Order to stay or affect the implementation of the decision under review Where an appeal against a tax decision has been filed under this Act, the Tribunal may make an order staying or otherwise affecting the operation or implementation of the decision under review as it considers appropriate for the purposes of securing the effectiveness of the proceeding and determination of the appeal. 19. ecision under review as it considers appropriate for the purposes of securing the effectiveness of the proceeding and determination of the appeal. 19. Conflict of interest (1) A member of the Tribunal shall disclose any interest on the matter which is the subject of proceedings that could conflict with the proper performance of the member’s functions. (2) Except with the consent of all the parties, any member who has declared interest under this section shall not take part in the proceedings. (3) A member who takes part in the proceeding of the Tribunal in contravention of this section commits an offence. 20. Powers of the Tribunal during a proceeding (1) For the purpose of proceedings before the Tribunal, the Tribunal may— (a) take evidence on oath; (b) proceed in the absence of a party who has reasonable notice of the proceedings; and (c) adjourn the hearing of the proceedings. 7 vidence on oath; (b) proceed in the absence of a party who has reasonable notice of the proceedings; and (c) adjourn the hearing of the proceedings. 7 Tax Appeals Tribunal Act (Cap. 469A) Kenya (2) For the purpose of hearing proceedings before the Tribunal, the Tribunal shall have powers of a subordinate Court to summon a person to appear before it— (a) to give evidence; or (b) to produce books, documents or things mentioned in the summons. (3) Where the Tribunal considers it desirable for the purposes of avoiding expenses or delay, or for any other special reason, it may receive evidence by affidavit and administer interrogations and require the persons to whom interrogations are administered to make a full and true reply to the interrogations. (4) The Tribunal shall have power to request for examination of witnesses abroad. 21. dministered to make a full and true reply to the interrogations. (4) The Tribunal shall have power to request for examination of witnesses abroad. 21. Contempt of Tribunal Any person who— (a) insults a member or an employee of the Tribunal in relation to the exercise of powers and functions under this Act; or (b) interrupts the proceedings of the Tribunal; or (c) creates a disturbance, or takes part in creating a disturbance in or near a place where the Tribunal is sitting; or (d) does any other act or thing that would, if the Tribunal were a court of law, constitute a contempt of that court, commits an offence and shall be liable on conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding six months, or to both. [Act No. 7 of 2022, s. 13.] 22. Disobedience of summons to give evidence, etc. ngs or to imprisonment for a term not exceeding six months, or to both. [Act No. 7 of 2022, s. 13.] 22. Disobedience of summons to give evidence, etc. Any person summoned by the Tribunal to attend and give evidence or to produce any records, books of account, statements, or other documents, whether in electronic form or otherwise, or who is required to answer interrogatories, and who without sufficient cause— (a) refuses or fails to attend at the time and place mentioned in the summons served on him; or (b) refuses or fails to answer, or to answer fully and satisfactorily, to the best of his knowledge and belief, all questions lawfully put to him by or with the concurrence of the Tribunal; (c) refuses or fails to produce any records, books of account, statements or other documents, whether in electronic form or otherwise, which are in his possession or under his control, mentioned or referred to in any summons served on him, commits an offence and shall be liable on conviction to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding three years, or to both. 23. Expert evidence (1) The Tribunal shall have powers to engage the service of an independent expert in any proceedings as may be appropriate upon such terms and conditions as the Chairperson may determine. engage the service of an independent expert in any proceedings as may be appropriate upon such terms and conditions as the Chairperson may determine. (2) The Tribunal may use the views of the expert referred to in subsection (1) in making decision on an appeal. 8 (2) The Tribunal may use the views of the expert referred to in subsection (1) in making decision on an appeal. 8 Tax Appeals Tribunal Act (Cap. 469A) Kenya 24. Procedure of the Tribunal (1) The proceedings of the Tribunal shall be of a judicial nature. (2) The Chief Justice shall prescribe rules to guide proceedings of the Tribunal. (3) The Tribunal shall have such assistance in carrying out its lawful writs, processes, orders, rules, decrees or commands as is available to a Court in Kenya. 25. Representation before the Tribunal (1) For the hearing of proceedings before the Tribunal, the appellant may appear in person or be represented by a tax agent or by an advocate of the High Court of Kenya. (2) If it is proved to the satisfaction of the Tribunal that owing to absence of the appellant from Kenya or due to sickness or any other reasonable cause, the appellant is prevented from attending, at the hearing of the appeal on the date and the time fixed for hearing, the Tribunal may adjourn the hearing of the appeal for such reasonable time as it may consider appropriate. [Act No. 38 of 2016, s. 64, Act No. 7 of 2022, s. 14.] 26. adjourn the hearing of the appeal for such reasonable time as it may consider appropriate. [Act No. 38 of 2016, s. 64, Act No. 7 of 2022, s. 14.] 26. Opportunity to make submissions concerning evidence The Tribunal shall ensure that every party to proceedings is given a reasonable opportunity to— (a) present his case; and (b) inspect any documents in relation to the proceedings and make submissions. 27. Discontinuance, dismissal or reinstatement of an appeal (1) An appellant may, by notice in writing or through electronic means, withdraw the appeal. (2) If an appellant fails, without reasonable cause, to appear for the hearing of the proceedings, the Tribunal may dismiss the appeal. (3) If an appellant fails without reasonable cause to proceed with the appeal or comply with a direction by the Tribunal, the Tribunal may dismiss the appeal. (4) Where the respondent without reasonable cause fails to appear for the hearing of the proceedings, the Tribunal may uphold the appeal. the appeal. (4) Where the respondent without reasonable cause fails to appear for the hearing of the proceedings, the Tribunal may uphold the appeal. (5) Where the Tribunal dismisses an appeal under subsection (2) or (3), or upholds an appeal under subsection (4), the appellant or respondent may, within thirty days from the date of receipt of the notice of the decision, apply to the Tribunal for reinstatement of the appeal, and the Tribunal may, if it considers it appropriate to do so, reinstate the appeal and give such directions as may be appropriate. [Act No. 7 of 2022, s. 15.] 28. Power of the Tribunal where the parties reach agreement (1) The parties may, at any stage during proceedings, apply to the Tribunal to be allowed to settle the matter out of the Tribunal, and the Tribunal shall grant the request under such conditions as it may impose. (2) The parties to the appeal shall report to the Tribunal the outcome of settlement of the matter outside the Tribunal. 9 onditions as it may impose. (2) The parties to the appeal shall report to the Tribunal the outcome of settlement of the matter outside the Tribunal. 9 Tax Appeals Tribunal Act (Cap. 469A) Kenya 29. Decisions of the Tribunal (1) The decision of the Tribunal shall be by majority vote of the members present, and in the case of equality of votes, the Chairperson shall have a casting vote in addition to his deliberative vote. (2) The Tribunal shall make a decision in writing or through electronic means— (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and either— (i) making a decision in substitution for the decision so set aside; or (ii) referring the matter to the Commissioner for reconsideration in accordance with any directions or recommendations of the Tribunal. (3) The Tribunal shall give reasons in writing or through electronic means for its decision, including its findings on material questions of fact and reference to the evidence or other material on which those findings were based. (4) The Tribunal shall cause a copy of its decision, including the reasons for the decision, to be served on each party to the proceeding. were based. (4) The Tribunal shall cause a copy of its decision, including the reasons for the decision, to be served on each party to the proceeding. (5) Subject to subsection (4), a decision of a Tribunal shall come into operation on date the notice of the decision is given or on such other date as may be specified by the Tribunal in the notice. (6) A decision of the Tribunal shall have effect as and be enforceable as if it were a decision of a court. (7) Subject to subsection (9), all decisions of the Tribunal and all evidence received by it, including a transcript of the report of the hearings, are public records open to inspection of the public. (8) Subject to subsection (9), a Tribunal shall provide for the publication of its decisions, including reasons, in such form and manner as may be adapted for public information and use, and such authorized publication is evidence of the decisions of the Tribunal in all courts of Kenya without any further proof of authentication. (9) The Tribunal shall ensure that in releasing, or allowing access to, information under subsection (7) or (8) measures are taken to prevent the disclosure of trade secrets or other confidential information. [Act No. 7 of 2022, s. 16.] 29A. ubsection (7) or (8) measures are taken to prevent the disclosure of trade secrets or other confidential information. [Act No. 7 of 2022, s. 16.] 29A. Review of decree or orders (1) A person who is aggrieved by a decree or an order from which no appeal has been preferred from the Tribunal to the High Court, may apply for review of the decree or the order within seven days from the date the decree or order was made by the Tribunal. (2) Applications for review of decree or orders under subsection (1) may be made— (a) upon the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by the applicant at the time when the decree was passed or the order was made; (b) on account of some mistake or error apparent on the face of the record; or (c) for any other sufficient reason. 10 s passed or the order was made; (b) on account of some mistake or error apparent on the face of the record; or (c) for any other sufficient reason. 10 Tax Appeals Tribunal Act (Cap. 469A) Kenya (3) Upon receipt of an application for review under subsection (1), the Tribunal may, set aside, vary or affirm the decree or the order, stating reasons for review as it deems fit within fourteen days after receipt of an application. [Act No. 7 of 2022, s. 17.] 30. Burden of proof In a proceeding before the Tribunal, the appellant has the burden of proving— (a) where an appeal relates to an assessment, that the assessment is excessive; or (b) in any other case, that the tax decision should not have been made or should have been made differently. 31. Enforcement of orders for costs (1) Where the Tribunal awards costs in any appeal, it shall, on application by the person to whom the costs are awarded, issue to him a certificate stating the amount of costs. (2) Every certificate issued under subsection (1) may be filed in the High Court by the person in whose favour the costs are awarded and, upon being so filed, shall be deemed to be a decree of the High Court and may be executed as such: Provided that an order for the costs against the Government shall not be enforced save in the manner provided for by the Government Proceedings Act (Cap. vided that an order for the costs against the Government shall not be enforced save in the manner provided for by the Government Proceedings Act (Cap. 40). 32. Appeals to the High Court on decisions of the Tribunal (1) A party to proceedings before the Tribunal may, within thirty days after being notified of the decision or within such further period as the High Court may allow, appeal to the High Court, and the party so appealing shall serve a copy of the notice of appeal on the other party. (1A) A party that has appealed against the decision of the Tribunal in subsection (1) shall within two days of lodging a notice of appeal, serve a copy of the notice on the other party. (2) The High Court shall hear appeals made under this section in accordance with rules set out by the Chief Justice. [Act No. 7 of 2022, s. 18.] 32A. Filing of documents Any notice, application, decision or other document that is to be made in writing under this Part may be submitted in hard copy or by electronic means. [Act No. 7 of 2022, s. 19.] Part IV – OFFENCES AND EVIDENCE 33. made in writing under this Part may be submitted in hard copy or by electronic means. [Act No. 7 of 2022, s. 19.] Part IV – OFFENCES AND EVIDENCE 33. Offences (1) A person who— (a) knowingly makes any false statement, false claim for a refund, produces any false document or information, or makes any false return concerning any material particular relating to any matter under this Act; (b) not being a registered person or being a person who has ceased to be a registered person, holds himself out as a registered person; 11 r this Act; (b) not being a registered person or being a person who has ceased to be a registered person, holds himself out as a registered person; 11 Tax Appeals Tribunal Act (Cap. 469A) Kenya (c) fails to keep, retain, or maintain accounts, documents, or records as required under this Act; or (d) is knowingly concerned in or involved in the taking of steps with a view to the fraudulent evasion of tax by him or by any other person, commits an offence and shall be liable on conviction to a fine not exceeding four hundred thousand shillings or double the tax evaded, whichever is the higher, or to imprisonment for a period not exceeding three years, or to both. (2) Where a person is convicted of an offence under this section, the court may, in addition to any penalty which may be imposed, order the forfeiture of any taxable supplies which have passed in connection with the commission of the offence or, if the taxable supplies cannot be forfeited or cannot be found, of such sum as the court shall assess as the value of the taxable supplies. 34. ce or, if the taxable supplies cannot be forfeited or cannot be found, of such sum as the court shall assess as the value of the taxable supplies. 34. Liability of employers and officers of corporate bodies (1) Where any offence under this Act is committed by an employee or agent, the person by whom that employee or agent is employed shall also be guilty of the offence unless he proves to the satisfaction of the court that he did not know, and could not reasonably be expected to know, that the act or omission constituting the offence was taking place, or that he took all reasonable steps to ensure that the offence was not committed. (2) Where an offence under this Act is committed by a body corporate, every person who, at the time of the commission of the offence, was a director, general manager, secretary, or other similar officer of the body corporate, or was acting or purporting to act in that capacity, shall also be guilty of the offence, unless he proves that the offence was committed without his consent or knowledge or that he exercised all the diligence to prevent the commission of the offence that he ought to have exercised, having regard to the nature of his functions in that capacity and in all circumstances. 35. commission of the offence that he ought to have exercised, having regard to the nature of his functions in that capacity and in all circumstances. 35. Protection of officers An action, suit, prosecution or any other proceeding, shall not be brought or instituted against a person who is or was a Chairperson, a member of the Tribunal or an officer of the Tribunal in respect of any act done or omitted to be done in good faith in the discharge of any function under this Act, unless, having regard to the circumstances of the case, such act or omission is found to be— (a) done or omitted to be done wilfully or dishonestly by such officer; (b) attributable to the negligence of such officer; or (c) done or omitted to be done by such officer in contravention of any provision of this Act or the Regulations. [Act No. 7 of 2022, s. 20.] 36. r; or (c) done or omitted to be done by such officer in contravention of any provision of this Act or the Regulations. [Act No. 7 of 2022, s. 20.] 36. Disclosure of information (1) Any person employed in the performance of any function under this Act who, by virtue of the performance of that function, becomes possessed of any information and who directly or indirectly communicates that information to any person otherwise than— (a) in the normal performance of his functions under this Act; or (b) in the course of any proceedings in a court or the Tribunal; or (c) with the express permission of the Chairperson, commits an offence and shall be liable on conviction to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding twelve months, or to both. 12 liable on conviction to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding twelve months, or to both. 12 Tax Appeals Tribunal Act (Cap. 469A) Kenya (2) Notwithstanding any other provision of this Act, the Chairperson may disclose information to a person in the services of the Government in a revenue or statistical department where the information is needed for the purposes of the official duties of that person solely for revenue or statistical purposes. [Act No. 7 of 2022, s. 21.] 37. General penalty A person convicted of an offence under this Act for which no other penalty is provided shall be liable to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both. 38. ided shall be liable to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both. 38. Evidence In any proceedings, whether criminal or civil, under this Act— (a) other than upon an appeal, a certificate from the Commissioner stating that any amount is due from any person by way of tax, or other liability under this Act, shall be conclusive evidence that the amount is due and payable from that person; (b) the burden of proving that any tax has been paid or that any goods or services are exempt from payment of tax shall lie on the person liable to pay the tax or claiming that the tax has been paid or that the goods or services are exempt from payment of tax; and (c) a statement by the Commissioner that a person is registered or is not registered under this Act, shall be conclusive evidence of the fact unless that person proves the contrary. 39. Power of sentence Where any person is convicted of an offence under this Act by a court of competent jurisdiction presided over by a resident magistrate, the court may, notwithstanding the provisions of section 7 of the Criminal Procedure Code (Cap. 75) impose the maximum sentence prescribed by this Act for the offence. 40. hstanding the provisions of section 7 of the Criminal Procedure Code (Cap. 75) impose the maximum sentence prescribed by this Act for the offence. 40. Power of officers to prosecute An authorised officer may with the approval of the Director of Public Prosecution appear and prosecute in a prosecution before a subordinate court for an offence under this Act. Part V – CONSEQUENTIAL AMENDMENTS AND SAVINGS 41. [Spent] 42. [Spent] 43. [Repealed by Act No. 38 of 2016, s. 65.] 44. Saving provisions (1) Despite the provisions of sections 41, sections 42 and sections 43, any Tribunal or appeal committee established by any tax law or regulations made thereunder before the coming into effect of this Act shall continue to hear and conclude any appeals filed by a taxpayer for a period of ninety days after the commencement of this Act. (2) Any appeals referred to in subsection (1) which are not concluded within the period specified, shall be taken over by the Tribunal. 13 f this Act. (2) Any appeals referred to in subsection (1) which are not concluded within the period specified, shall be taken over by the Tribunal. 13 Tax Appeals Tribunal Act (Cap. 469A) Kenya (3) The Tribunal shall hear and determine appeals relating to tax decision made before its first sitting (if it was not concluded by the appeal mechanism that existed before the establishment of the Tribunal) within a period of one year from the date of the first sitting. (4) The Chairperson and the other members of the Tribunal appointed before the commencement of this Act shall continue to hold office for the unexpired duration of their term as if they have been appointed under section 4. (5) The Secretary and the other staff serving the Tribunal before commencement of this Act shall continue to hold office until the Commission appoints the staff of the Tribunal. [Act No. 14 of 2015, s. 62, Act No. 7 of 2022, s. 22.] SCHEDULE [s. 6] OATH/AFFIRMATION OF OFFICE BY MEMBERS OF THE TRIBUNAL I, ........................................ 5, s. 62, Act No. 7 of 2022, s. 22.] SCHEDULE [s. 6] OATH/AFFIRMATION OF OFFICE BY MEMBERS OF THE TRIBUNAL I, ........................................ having been appointed the Chairperson/ a member of the Tax Appeals Tribunal, do swear/affirm that I will be true and faithful to the best of my ability and power in the execution of the trust committed to my charge and inspection in the services of the Appeals Tribunal, and that I shall not acquire, take or receive any fee, perquisite, gratuity or reward whether pecuniary or of any sort or description whatsoever, either directly or indirectly, for any service, act, duty, matter or thing done or performed, or to be done or performed, in the execution or discharge of any of the duties of my office or employment on any account whatsoever, over than my salary and what is, or may be, allowed me by law or by the Cabinet Secretary in writing. Name: ........................................ Date ....................................... Signature: ....................................... Witness: Name: ........................................ Date ....................................... Signature: ....................................... 14
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