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Tax Appeals Tribunal Act

Scope Of The Act

This Is The Tribunal Established To Hear Appeals Filed Against any Tax Decision Made By The Commissioner In Relation to Any Of The Following Tax Laws:

 (a) The Income Tax Act; .

(b) The Customs And Excise Act; 

(c) The Value Added Tax;

(d) The East African Community Customs Management Act, 2004;

(e) Any Other Tax Legislation Administered By The Commissioner;

The Tribunal shall consist of a Chairperson and not less than fifteen but not more than twenty other members, who shall, subject to this Act, be appointed by the Cabinet Secretary upon such terms and conditions of service as the Cabinet Secretary may determine. (Section 4 and 5).

The Chairperson shall be responsible for ensuring the orderly and expeditious discharge of the mandate of the Tribunal. (Section 9(1))

Tribunal Panel

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.

 

  • 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. (Section 10).
  • There shall be a qualified clerk of each panel designated Clerk of the panel and who shall be the secretary to the panel.

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 (Section 12),

a. Notice:

  • Give notice of appeal to the Commissioner  in writing
  • Notice of Appeal should be issued within 30 days of receipt of Commissioners decision being appealed.
  • The applicant can request for extension of time to issue the Notice provided there is good reason for the delay.

b. Filing:

  • Within 14 days of the Notice being issued, file the following documents with the Tribunal Clerk.
  1. Memorandum of Appeal
  2. Statement of Tax
  3. Tax decision
  4. Pay Kshs. 20,000/= fee
  • Note: the Clerk will advise how many copies of the documents to be provided.
  • The applicant can request for extension of time to supply the documents provided there is good reason for the delay.

d. Service of  the Appeal

  • The Applicant shall serve Appeal documents on the Commissioner within 2 days of the Notice being issued.

e. Commissioner’s Response to Appeal

  • Within 30 days of receiving the Appeal, the Commissioner shall provide to the Tribunal,
  1. a statement of facts including the reasons for the tax decision; and
  2. any other document which may be necessary for review of the decision by the Tribunal.
  3. any other documents requested to provide by the Tribunal.
  • The Tribunal will hear and determine the appeal within 90 days from date the Applicant  files the Appeal. (Section 13(7)).
  • The Applicant is bound by the contents of documents filed. He can only provide additional information if the Tribunal allows it.
  • Normal procedures of Court as provided in the Civil Procedure Act, do not apply. (Section 14)
  • The Secretary to the Tribunal shall advise all parties in writing of the time and place of the hearing at least fourteen (14) days before the commencement of hearing.
  • Evidence before the Tribunal may be given orally or through affidavits or in such manner as the Tribunal may direct.
  • Date of hearing may be adjourned for any reasonable reason.
  • 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. (Section 17).
  • Yes. The proceedings of the Tribunal are of a judicial nature.
  • The Chief Justice shall prescribe rules to guide proceedings of the Tribunal.
  • 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.

Under Section 30 and 38 of the Act, the appellant has the burden of proving the Commissioner made a mistake and to show:

  • where an appeal relates to an assessment, that the assessment is excessive; or
  • in any other case, that the tax decision should not have been made or should have been made differently.

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. 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. Similarly, 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.

For the hearing of proceedings before the Tribunal, the appellant may appear in person or be represented by a tax agent (Section 25).

  • An appellant may, by notice in writing, withdraw the appeal.
  • If an appellant fails, without reasonable cause, to appear for the hearing of the proceedings, the Tribunal may dismiss the appeal.
  • 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.
  • Where the respondent without reasonable cause fails to appear for the hearing of the proceedings, the Tribunal may make a decision in favor of the Applicant and uphold the Appeal;
  • Where the Tribunal dismisses an appeal or upholds an appeal, 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.

Under Section 28 the Parties can apply to the Tribunal to be allowed to settle the matter privately. The Tribunal may give some conditions.  The Parties report to the Tribunal the outcome of the dispute.

  • The Appeal shall be decided by a majority decision of the panel sitting to hear the Appeal
  • The decision shall be in writing
  • The Tribunal may:
    • affirm the decision under review;
    • vary the decision under review; 
    • set aside the decision under review
    • make a decision in substitution for the decision so set aside; or
    • refer the matter to the Commissioner for reconsideration in accordance with any directions or recommendations of the Tribunal.
  • The Tribunal shall give reasons in writing 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.
  • The Tribunal shall cause a copy of its decision and the reasons for the decision, to be served on each party to the proceedings.
  • A decision of a Tribunal shall come into operation on the date the notice of the decision is given or on such other date as may be specified by the Tribunal in the notice.
  • A decision of the Tribunal shall have effect as and be enforceable as if it were a decision of a court.
  • 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.
  • 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.
  • The Tribunal shall ensure that in releasing, or allowing access to, information on its decision and the evidence presented before it, measures are taken to prevent the disclosure of trade secrets or other confidential information.

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.

Every certificate for Costs issued 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: Except that an order for the costs against the Government shall be enforce in the manner provided for by the Government Proceedings Act.

  • A party to the proceeding 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.
  • The party so appealing shall serve a copy of the Notice of Appeal on the other party.
  • The High Court shall hear appeals from the Tribunal in accordance with rules set out by the Chief Justice.

Obligations of the Tribunal Generally:

  1. The Tribunal shall submit an annual report to the Cabinet Secretary on its performance in the preceding year.( Section 9 ).
  2. 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 (Section 18).
  3. 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. (Section 19). Only with the consent of all the parties, any member who has declared interest under this section may take part in the proceedings. (Section 19(2)) .
  4. The Tribunal shall ensure each party has an opportunity to present their case and be heard ( Section 26).

Powers of the Tribunal during a proceeding ( Section 18, 20, 23, 28, 31)  

In carrying out its duties, the Tribunal has the power to:

(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.

(d ) summon a person to appear before it (i) to give evidence; or(ii) to produce books, documents or things mentioned in the summons.

(e) receive evidence by affidavit

(f) administer interrogations and require the persons to whom interrogations are administered to make a full and true reply to the interrogations.

(g) to request for examination of witnesses abroad.

(h)with the Chairman’s approval to engage the service of an independent expert in any proceedings and rely on such evidence to reach a decision.

(i) provide conditions for an out of tribunal agreement on request of the Parties.

(j) issue certificate of costs.

(k)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.(Section 18)

The tribunal to be chaired by Mr Moses Buyuka Obonyo was appointed by Cabinet Secretary for National Treasury Henry Rotich pursuant to section 4(1) of the Tax Appeals Tribunal Act, with effect from 1st April, 2015.

Chairman

1. Moses Buyuka Obonyo

Members

  1. Wilfred Nderitu Gichuki
  2. Philip Kiplang’at Korir
  3. Violet Sally Onyango
  4. Allan George Njogu Kamau
  5. Josephine Kemunto Maangi
  6. Joseph Mwangi Wachiuri
  7. Lilian Renee Awuor Omondi
  8. Eric Nyongesa Wafula
  9. Ponangipalli V. R. Ramana Rao
  10. Geofrey Katsoleh Kahindi Charo
  11. Jolawi O. Obondo
  12. Francis Kithuka Kivuli
  13. Abdulbasid Ahmed
  14. Boniface A. Dimmo
  15. Gabriel M. Kitenga
  16. Philomena Nepeita Kiroken
  17. Richard Rotich

 

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