Tax Appeals Tribunal Act

Section 1. Short title Section This Act may be cited as the Tax Appeals Tribunal Act.

Section 2. Interpretation Section 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; (e) any other tax legislation administered by the Commissioner ; “Tribunal” means the Tax Appeals Tribun...

Section 3. Establishment of theTribunal Section 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 .

Section 4. Membership of theTribunal Section a Chairperson ; and

Section 5. Tenure of office Section 5(1)(a) in case of the Chairperson , for a term not exceeding five years but shall not be eligible for re-appointment; and Section 5(1)(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. Section 5(1A) The Chairperson or a member of the Tribunal shall serve on a fulltime basis. Section 5(2)(a) resigns from office by notice in writing addressed to the Judicial Service Commission ("the Judicial Service Commission established under Article 171 of the Constitution;") ; Section 5(2)(b) becomes a public servant or an employee of the Kenya Revenue Authority, or a tax agent ; Section 5(2)(c) is absent from three consecutive meetings of the Tribunal without the permission of the Chairperson ; Section 5(2)(d) is adjudged bankrupt by a Court of competent jurisdiction; Section 5(2)(e) is convicted of an offence under any tax law or of a criminal offence; Section 5(2)(f) is unable to perform the functions of the office arising by reason of infirmity of body or mind; or Section 5(2)(g) is otherwise unable or unfit to discharge the functions of the office. Section 5(3) Delet...

Section 6. Oath of office Section 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.

Section 7. Staff of theTribunal Section 7(1) There shall be a Secretary to the Tribunal who shall be competitively appointed by the Commission ("the Judicial Service Commission established under Article 171 of the Constitution;") . Section 7(2)(a) has a degree in law, business, finance, economics, insurance or related field from a university recognized in Kenya; Section 7(2)(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; Section 7(2)(c) has completed five years since he left the Authority, if the person is former employee of the Kenya Revenue Authority; Section 7(2)(d) is not a tax agent ; Section 7(2)(e) has not been convicted of a felony; Section 7(2)(f) has not been adjudged bankrupt by a court of competent jurisdiction; Section 7(2)(g) has met his tax obligations; and Section 7(2)(h) meets the requirements of Chapter Six of the Constitution. Section 7(3) The Tribunal shall have such other staff, recruited competitively, by the Commission ("the Judicial Service Commission established under Article 171 of the Constitution;") , as may be necessary for the proper disch...

Section 8. Remuneration and payment of expenses Section 8(1) The Chairperson or a member of the Tribunal shall be paid such remuneration as may be determined by the Commission ("the Judicial Service Commission established under Article 171 of the Constitution;") in consultation with the Salaries and Remuneration Commission ("the Judicial Service Commission established under Article 171 of the Constitution;") , from time to time. Section 8(2) The expenses of the Tribunal shall be paid out of the funds of the Tribunal . Section 8(3) The staff of the Tribunal shall be paid such remuneration as may be determined by the Commission ("the Judicial Service Commission established under Article 171 of the Constitution;") in consultation with the Salaries and Remuneration Commission ("the Judicial Service Commission established under Article 171 of the Constitution;") from time to time. [Act No. 7 of 2022 , s. 7.]

Section 9. Arrangement of business Section 9(1) The Chairperson shall be responsible for ensuring the orderly and expeditious discharge of the mandate of the Tribunal . Section 9(2)(a) constitute a panel to hear any matter before the Tribunal ; Section 9(2)(b) determine the place at which a panel may sit; and Section 9(2)(c) determine the procedure for the conduct of the business of the Tribunal . Section 9(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.]

Section 10. Constitution of a panel Section 10(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. Section 10(2)(a) if the Chairperson is a member of the panel as constituted, the Chairperson shall preside; or Section 10(2)(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. Section 10(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.]

Section 11. Clerk of a panel Section 11(1) There shall be a clerk for each panel, who shall be the secretary to the panel. Section 11(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.]

Section 4A. Qualifications for appointment Section in case of the Chairperson , is qualified to be appointed as a Judge of the High Court; and

Section 4B. Appointment procedures Section 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.]

Section 4C. Staggered appointment Section The Commission ("the Judicial Service Commission established under Article 171 of the Constitution;") 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.]

Section 7A. Functions of theSecretary Section the day-to-day management of the affairs of the Tribunal ;

Section 8A. Expenses of theTribunal Section The expenses of the Tribunal shall be paid out of the Judiciary Fund. [Act No. 7 of 2022 , s. 8.]

Section 12. Appeals to theTribunal Section 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.

Section 13. Procedure forappeal Section 13(1)(a) be in writing or through electronic means; Section 13(1)(b) be submitted to the Tribunal within thirty days upon receipt of the decision of the Commissioner . Section 13(2)(a) a memorandum of appeal ; Section 13(2)(b) statements of facts; and Section 13(2)(c) the appealable decision; and Section 13(2)(d) such other documents as may be necessary to enable the Tribunal to make a decision on the appeal . Section 13(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). Section 13(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. Section 13(5) An appellant shall serve a copy of the appeal on the Commissioner within two days after giving notice of appeal to the Tribunal . Section 13(6) The appellant shall, unless the Tribunal orders otherwise, be limited to the grounds stated in the appeal or documents to which...

Section 14. Exemption from the provisions ofCap. 21 Section The provisions of the Civil Procedure Act ( Cap. 21 ) shall not apply to the proceedings of the Tribunal.

Section 15. Submission of material documents to theTribunalby theCommissioner Section 15(1)(a) a statement of facts including the reasons for the tax decision; and Section 15(1)(b) any other document which may be necessary for review of the decision by the Tribunal . Section 15(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. Section 15(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 . Section 15(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.]

Section 16. Hearing Section 16(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. Section 16(2) Evidence before the Tribunal may be given orally or through affidavits or in such manner as the Tribunal may direct. Section 16(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.]

Section 17. Witnesses Section 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 18. Order to stay or affect the implementation of the decision under review Section 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 19. Conflict of interest Section 19(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. Section 19(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. Section 19(3) A member who takes part in the proceeding of the Tribunal in contravention of this section commits an offence.

Section 20. Powers of theTribunalduring a proceeding Section 20(1)(a) take evidence on oath; Section 20(1)(b) proceed in the absence of a party who has reasonable notice of the proceedings; and Section 20(1)(c) adjourn the hearing of the proceedings. Section 20(2)(a) to give evidence; or Section 20(2)(b) to produce books, documents or things mentioned in the summons. Section 20(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. Section 20(4) The Tribunal shall have power to request for examination of witnesses abroad.

Section 21. Contempt ofTribunal Section insults a member or an employee of the Tribunal in relation to the exercise of powers and functions under this Act; or

Section 22. Disobedience of summons to give evidence,etc. Section refuses or fails to attend at the time and place mentioned in the summons served on him; or

Section 23. Expert evidence Section 23(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. Section 23(2) The Tribunal may use the views of the expert referred to in subsection (1) in making decision on an appeal .

Section 24. Procedure of theTribunal Section 24(1) The proceedings of the Tribunal shall be of a judicial nature. Section 24(2) The Chief Justice shall prescribe rules to guide proceedings of the Tribunal . Section 24(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.

Section 25. Representation before theTribunal Section 25(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. Section 25(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.]

Section 26. Opportunity to make submissions concerning evidence Section present his case; and

Section 27. Discontinuance, dismissal or reinstatement of anappeal Section 27(1) An appellant may, by notice in writing or through electronic means, withdraw the appeal . Section 27(2) If an appellant fails, without reasonable cause, to appear for the hearing of the proceedings, the Tribunal may dismiss the appeal . Section 27(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 . Section 27(4) Where the respondent without reasonable cause fails to appear for the hearing of the proceedings, the Tribunal may uphold the appeal . Section 27(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.]

Section 28. Power of theTribunalwhere the parties reach agreement Section 28(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. Section 28(2) The parties to the appeal shall report to the Tribunal the outcome of settlement of the matter outside the Tribunal .

Section 29. Decisions of theTribunal Section 29(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. Section 29(2)(a) affirming the decision under review; Section 29(2)(b) varying the decision under review; or Section 29(2)(c) making a decision in substitution for the decision so set aside; or Section 29(2)(c)(i) making a decision in substitution for the decision so set aside; or Section 29(2)(c)(ii) referring the matter to the Commissioner for reconsideration in accordance with any directions or recommendations of the Tribunal . Section 29(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. Section 29(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. Section 29(5) Subject to subsection (4), a decision of a Tribunal shall come into operation on date the notice of the decision i...

Section 30. Burden of proof Section where an appeal relates to an assessment, that the assessment is excessive; or

Section 31. Enforcement of orders for costs Section 31(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. Section 31(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. 40 ).

Section 32. Appeals to the High Court on decisions of theTribunal Section 32(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. Section 32(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. Section 32(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.]

Section 29A. Review of decree or orders Section 29A(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 . Section 29A(2)(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; Section 29A(2)(b) on account of some mistake or error apparent on the face of the record; or Section 29A(2)(c) for any other sufficient reason. Section 29A(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.]

Section 32A. Filing of documents Section 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.]

Section 33. Offences Section 33(1)(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; Section 33(1)(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; Section 33(1)(c) fails to keep, retain, or maintain accounts, documents, or records as required under this Act; or Section 33(1)(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, Section 33(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.

Section 34. Liability of employers and officers of corporate bodies Section 34(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. Section 34(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.

Section 35. Protection of officers Section done or omitted to be done wilfully or dishonestly by such officer;

Section 36. Disclosure of information Section 36(1)(a) in the normal performance of his functions under this Act; or Section 36(1)(b) in the course of any proceedings in a court or the Tribunal ; or Section 36(1)(c) with the express permission of the Chairperson , Section 36(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.]

Section 37. General penalty Section 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.

Section 38. Evidence Section 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;

Section 39. Power of sentence Section 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.

Section 40. Power of officers to prosecute Section 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.

Section 43.[Repealed by ActNo. 38 of 2016, s. 65.]

Section 44. Saving provisions Section 44(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. Section 44(2) Any appeals referred to in subsection (1) which are not concluded within the period specified, shall be taken over by the Tribunal . Section 44(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. Section 44(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 . Section 44(5) The Secretary and the other staff serving the Tribunal before commencement of this Act shall continue to hold office until the Commission ("th...