[2025] KETAT 108 (KLR)

Uriri Constituency Development Fund v Commissioner Legal Services & Board Co-ordination (Tax Appeal E262 of 2024) [2025] KETAT 108 (KLR) (7 February 2025) (Judgment)

Neutral citation: [2025] KETAT 108 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tax Appeal E262 of 2024

CA Muga, Chair, BK Terer, EN Njeru, E Ng'ang'a & SS Ololchike, Members

February 7, 2025

Between

Uriri Constituency Development Fund

Appellant

and

Commissioner Legal Services & Board Co-ordination

Respondent

Judgment

Background 1. The Appellant is a Constituency Development Fund. The National Government Constituencies Development Fund (NG-CDF) is established under the NG-CDF Act, 2015 as amended in 2016. The main purpose of the fund is to address socioeconomic development of the people at the constituency level in order to reduce poverty and enhance regional equity. The NG-CDF Act 2015 aligned the operations of the fund to the new constitutional dispensation especially in terms of ensuring that the law strongly embraces the principles of participation of the people, separation of powers and delineation of functions between National and County Governments.

2. The Respondent is a principal officer appointed under Section 13 of the Kenya Revenue Authority Act, CAP 469 of Kenya’s Laws (hereinafter “the Act”). Under Section 5 (1) of the Act, the Kenya Revenue Authority is an agency of the Government for the collection and receipt of all tax revenue. Further, under Section 5(2) of the Act with respect to the performance of its functions under subsection (1), the Authority is mandated to administer and enforce all provisions of the written laws as set out in Part 1 and 2 of the First Schedule to the Act for the purposes of assessing, collecting and accounting for all revenues in accordance with those laws.

3. The Respondent, issued the Appellant with a notice of assessment dated 30th March 2021, detailing PAYE, Withholding VAT (WHVAT) and Withholding Income Tax (WHIT) assessments amounting to Kshs 51,399,432. 00 for the period July 2013 to June 2019.

4. The Appellant objected to the additional assessments on 3rd July 2023, while providing reasons for the late objection that were accepted by the Respondent. The Respondent thereafter issued an objection decision on 4th September 2023 confirming PAYE, WHVAT and WHIT assessments amounting to Ksh 51,399,432. 00

5. Being dissatisfied with the Respondent’s findings and its objection decision, the Appellant lodged its notice of Appeal dated 4th March, 2024 on 6th March 2024. On 25th April, 2024, the Tribunal directed that the Appellant’s notice of appeal dated 4th March 2024 be deemed as having been filed and properly on record.

The Appeal/appellant’s Case 6. The Appellant’s Memorandum of Appeal and Statement of Facts dated and filed on 4th March 2024 were deemed as having been filed and properly on record following the orders of the Tribunal made on 25th April 2024. The Appellant also filed its written Submissions dated 24th September 2024 on 11th October 2024 and the same were adopted by the Tribunal on 13th November 2024.

7. The Respondent issued an assessment dated 30th March 2021 on the grounds that the Appellant failed to deduct and remit PAYE on committee allowances and sitting allowances paid to the Board members.

8. The Appellant stated that it transacted taxable services from CDF projects but failed to withhold and remit VAT Withholding taxes to the Commissioner and that the Appellant engaged in CDF projects and failed to withhold tax.

9. The Appellant lodged its notice of objection on 10th July 2023. Upon review of the notice of objection the Respondent issued an objection decision on 4th September 2023 fully rejecting the appellant’s grounds of objection.

10. The Appellant appealed against the Respondent’s decision of 4th September 2023 on the following grounds:a.That the Appellant was registered for PAYE in May 2018 and before May 2018 it was the responsibility of the sub-county treasury to deduct and remit PAYE however, the assessment dates back to 2013. b.That not all approved allocation for committee expense was paid as committee sitting allowance since the National Government Constituency Development Act, CAP 414A of the Laws of Kenya (hereinafter “NGCDF Act”) Section 16(c) does not allow payment of more than 24 sittings per financial year. This totals to Ksh 1,248,000. 00 payable each year as a sitting allowance.c.That the Appellant was appointed as withholding VAT agent in August 2018 and the assessment dates as far back as 2013. d.That the Respondent disregarded the supporting documents availed in arriving at the objection decision.e.That the assessment was humongous and would interfere with disbursement of bursaries to needy students and has grounded operations at the Fund including payment of salaries and contractors.f.That the assessment is outside the 5-year statutory timeline pursuant to the provisions of Section 31(4) of the Tax Procedures Act, CAP 469B of the Laws of Kenya (hereinafter “TPA”).

11. On whether the Respondent was allowed to conduct an audit beyond the stipulated 5-year period the Appellant relied on its written submissions wherein it submitted that the Respondent conducted an audit beyond the stipulated 5-years contrary to Section 29 (5) to the TPA.

12. The Appellant submitted that timelines were important and going beyond them was an abuse of power. The Appellant urged the Tribunal to affirm the position adopted in Keroche Industries Limited v Kenva Revenue Authority & 5 Others [2007] eKLR and Reg v Secretary of State for the Environment Ex Parte Nottinghamshire Country Council [1986] AC.

13. Further, the Appellant reiterated that the Respondent infringed its legitimate expectation of a fair administrative action when the assessment was carried out past the 5 years. It submitted that, procedural legitimate expectation rests on the presumption that a public authority will follow a certain procedure in advance of a decision being taken.

14. On whether the members of the Appellant’s committee were its employees, the Appellant submitted that the services offered by the committee are consultative in nature and should therefore be regarded as a contract for service, rather than a contract of service, since the decisions and guidance provided by the committee are independent of the Appellant.

15. The Respondent on the other hand asserted that the committee members of the Appellant received sitting allowances that were subject to PAYE, The Appellant added that applying PAYE to the committee sitting allowances is flawed, as the law stipulates that PAYE applies to employment emoluments and consultancy fees are subject to withholding tax and should be taxed accordingly.

16. The Appellant asserted that a committee member is entitled to Kshs. 5,000. 00 for each session attended and that the committee holds a maximum of 2 sessions each month, and members receive a sitting allowance for each session they attend. In any given month, each member of the Appellant’s committee receives a total of Ksh 10,000. 00 in sitting allowances.

17. The Appellant cited the provision of section 35(3)(f) of Income Tax Act, CAP 470 of the Laws of Kenya (hereinafter “ITA”) which provides that management or professional fee or training fee, the aggregate value of which is twenty-four thousand shillings or more in a month. It submitted that the payments made to the Appellant’s committee members do not meet the threshold required, of Ksh. 24,000. 00 per month for them to be subjected to the withholding income tax. The Appellant therefore, prayed that the Tribunal to dismiss the Respondent’s pleadings to impose PAYE on the sitting allowance paid to Appellant’s committee members in its entirety, as there is no substantive basis for such a charge.

18. On determining at what point an individual appointed as a WHVAT agent thereby assuming associated responsibilities the Appellant submitted that Section 42A of the TPA gives powers to the Commissioner to appoint a person to withhold two per cent (six per cent prior to 7th November, 2019) of the taxable value on purchasing taxable supplies at the time of paying for the supplies and remitting the same directly to the Commissioner. The Appellant submitted that it was not notified of the appointment as WHVAT agent until 13th August 2018.

19. The Appellant argued that the Respondent penalized the Appellant for failing to withhold WHVAT for a period prior to their appointment as a WHVAT Agent. In this regard, the Appellant cited the case of Tanganyika Mine Workers Union v The Registrar of Trade Unions [1961] EA 629 to argue that the Respondent’s action should not be both punitive and unjust to the Appellant.

20. The Appellant also relied on the case of Vestey v Inland Revenue Commissioners [1979] 3 All ER at 984 where it was held that taxes are imposed on subjects by parliament. A citizen cannot be taxed unless he is designated in clear terms by a taxing Act as a taxpayer and the amount of his liability is clearly defined.

21. On whether the WHT tax imposed on the Appellant was justified, The Appellant submitted it is important to comply with Section 34(4) and (5) of the TPA regarding the taxes assessed for the periods 2013/2014 and 2014/2015.

22. The Appellant urged the Tribunal to set aside the 2013/2014 and 2014/2015 assessments.

Appellant’s Prayers 23. The Appellant urged this Tribunal to allow the Appeal and the Respondent’s objection decision dated 4th September 2023 be set aside.

Respondent’s Case 24. In response to the Appeal, the Respondent filed its statement of facts dated and filed on 24th May 2024 and also relied on its written submissions filed on 7th October 2024.

25. The Respondent stated that it conducted a reconciliation exercise on the Appellant to examine the CDF expenditure with the aim of ascertaining whether the right amount of taxes that arise from disbursements had been accounted for and remitted to the Respondent.

26. The Respondent observed that the Appellant had not been remitting Withholding taxes until January 2019. The arears determined were PAYE, Withholding Income tax (WHIT) and Withholding VAT (WHVAT) for the period July 2013 to June 2019. The Respondent proceeded to issue the Appellant with a Notice of Assessment dated 30th March 2021, detailing PAYE, WHVAT and WHIT assessments amounting to Ksh 51,399,432. 00 for the period July 2013 to June 2019.

27. The Appellant objected to the additional assessments on 3rd July 2023. The Respondent thereafter issued an objection decision on 4th September 2023 confirming PAYE, WHVAT and WHIT assessments amounting to Kshs 51,399,432. Then the Appellant filed this appeal.

28. On whether the Appellant was registered for PAYE in May 2018 and whether it was the responsibility of the sub-county treasury to deduct and remit PAYE, the Respondent stated that the Appellant did not provide any documentation to show that it registered for PAYE on or before May 2018, neither did it provide documentation to show that the sub-county treasury deducted and accounted for PAYE on their behalf.

29. The Respondent stated that Section 56(1) of the TPA places the burden of proof on the Appellant, whereby the Appellant is required to prove its position beyond reasonable doubt. The Respondent averred that the assessments issued on PAYE were based the information available to the Respondent. It relied on Section 23 of the TPA to argue that the Appellant has to keep record necessary to determine tax liability.

30. The Respondent stated that it is empowered by section 31 of TPA to make alterations or additions to original assessments from available information for a reporting period based on the best judgment. The Respondent asserted that the Appellant did not prove its position beyond reasonable doubt that it was registered for PAYE in May 2018 and that the sub-county treasury deducted and remitted PAYE on the Appellant’s behalf.

31. On whether the Appellant deducted and remitted PAYE on committee allowances and sitting allowances paid to the board, The Respondent stated that the Appellant did not provide any supporting documents to show that not all the approved allocation for committee sitting allowance was not paid out.

32. It averred that Section 29(1) of the TPA allows the Respondent to issue default assessment. The Respondent added that the Appellant failed to provide supporting documents which led to the Respondent issuing default assessments based on the information available on PAYE committee sitting allowance. The Respondent also cited the case of Osho Drappers Ltd v Commissioner of Domestic Taxes, TAT No. 159 of 2018] that held that the taxpayer has to produce documents to discharge its burden of proof.

33. The Respondent contended that it did not err by raising PAYE on committee allowances as this ground was not supported with evidence by the Appellant. On whether the Appellant was appointed as a Withholding VAT agent in August 2018, the Respondent contended that while the registration for Withholding VAT was done on i-Tax in 2018, it was established that the Appellant had registered prior to 2018 and that the i-Tax notification was just the regularization of the same.

34. The Respondent therefore concluded that the Appellant was a registered Withholding VAT agent prior to the year 2018 and the assessments issued in relation to the same were proper.

35. On whether the Respondent disregarded supporting documents provided by the Appellant, the Respondent stated that the Appellant did not provide any necessary required supporting documents as requested by the Respondent to support their grounds of objection. Further, the Respondent stated that it engaged with the Appellant via several electronic mail correspondence in regards to provision of supporting documents but the same were not provided by the Appellant.

36. The Respondent reiterated the Appellant’s obligations as provided for under Section 56(1) of the TPA. It also argued that the Appellant failed to keep documents as provided under section 23 of the TPA. Further, the Respondent cited the provisions of section 93(1) of the TPA which provides as follows:‘‘Failure to maintain documents(1)A person commits an offence if the person fails to keep, retain or maintain a document that may be required to be kept, retained or maintained in accordance with a tax law without reasonable excuse during a reporting period.’’

37. The Respondent posited that the Appellant failed in its obligation and that it cannot blame the Respondent that it failed to consider documents that it provided. The Respondent stated that the documents were not in relation to their grounds of objection. On whether the assessments were outside the 5-year statutory timeline, the Respondent stated that this ground was not raised during the objection stage and that the Appellant cannot rely on grounds that were not addressed during the objection stage.

38. The Respondent cited the following provisions of Section 56(3) of the TPA:‘‘56. General provisions relating to objections and appeals(3)In an appeal by a taxpayer to the Tribunal, High Court or Court of Appeal in relation to an appealable decision, the taxpayer shall rely only on the grounds stated in the objection to which the decision relates unless the Tribunal or Court allows the person to add new grounds.’’

39. The Respondent submitted that this ground was irrelevant for the purposes of this Appeal. On whether the assessment for PAYE was justified, the Respondent relied on the provisions of Section 106 and 107 of the Evidence Act, CAP 80 of the Laws of Kenya (hereinafter “Evidence Act”) Section 56 of the TPA and Section 30 of the Tax Appeals Tribunal Act, CAP 469A of the Laws of Kenya (hereinafter “TATA”) to submit that the Appellant failed to discharge its burden of proof.

40. The Respondent also relied on the case of Commissioner of Investigations & Enforcements v Dr. Evans Kidero (2022) eKLR to submit that the taxpayer has a duty to keep records to discharge its burden of proof. The Respondent submitted that the Appellant failed to provide documents to support its objection leading the Respondent to rely on the available information in accordance with Section 31 of the TPA.

41. Further, on the issue of deducting and remitting PAYE on the committee allowances, the Respondent emphasised that the Appellant did not provide any proof to show how many sittings the members of the committee had held. Further, it submitted that the Appellant did not provide any evidence such as minutes to show the number of meetings that have been held by the committee and how many members have been present in each meeting so as to enable the Respondent in determining the correct PAYE amount that the Appellant ought to have remitted.

42. The Respondent further submitted that the Appellant did not produce any evidence of payment of the sitting allowances to the members of the committee who were present for the Respondent to determine how many people were present in the committee meetings to determine the tax liability.

43. On whether the Respondent disregarded the supporting documents provided by the Appellant, the Respondent submitted that the Appellant did not provide the necessary documents that were required by the Respondent to aid the Respondent in determining its tax liability. The Respondent reiterated that the Appellant failed to discharge the burden of proof therefore, the Appeal should be dismissed.

Respondent’s prayers 44. The Respondent prayed that the Respondent’s objection decision dated 4th September 2023 be upheld and that the appeal be dismissed with costs to the Respondent.

Issues For Determination 45. The Tribunal has carefully perused the parties’ pleadings documentation and written submissions is of the view that there are two issues that call for its determination as follows:a.Whether the default tax assessments in respect to the 2013 to 2015 period were statutorily time barred.b.Whether the Respondent erred in confirming the assessments.

Analysis And Findings 46. The Tribunal will proceed to analyse the issues identified for determination hereinunder:

a. Whether the default tax assessments in respect to the 2013 to 2015 period were statutorily time barred. 47. The Respondent issued assessments dated 30th March 2021 seeking to recover taxes in respect of the period from 2013 to 2019. Whereas the Appellant submitted that the 2013/2014 and 2014/2015 assessments were statutorily time time barred. The Respondent submitted that the Appellant failed to avail documents therefore, it amended the assessments in respect to 2018 and issued default assessments in respect to the PAYE due from the sitting allowances due to the Appellant’s committee members.

48. The Tribunal observes that the tax assessment, objection to the assessment and issuance of the objection decision are statutorily mandated activities that must be carried out within stipulated timelines under the applicable laws. Default assessments are issued by the Respondent where a taxpayer fails to remit a return for a reporting period. In any case, pursuant to Section 29(5) of the TPA the same must be carried out within 5 years following the last date of the reporting period to which the assessment relates. However, there is a proviso in Section 29 (6) of the TPA allowing the Commissioner to go beyond the period of 5 years where there is gross or wilful neglect, evasion or fraud. The provisions of Section 29 (5) and (6) are as set out below:“(5)Subject to subsection (6), an assessment under subsection (1) shall not be made after five years immediately following the last date of the reporting period to which the assessment relates.(6)Subsection (5) shall not apply in the case of gross or wilful neglect, evasion…..”

49. The view of the Tribunal is that the Respondent can issue a default assessment where a taxpayer fails to remit a tax return for a reporting period. In addition, the Respondent could only issue such a default assessment beyond the 5-year statutory stipulated period where the elements of gross or wilful neglect, evasion or fraud are proven and pleaded. In the case of Gitere Kahura Investments Ltd v TheCommissioner of Investigations and Enforcement Tax Appeal No. 16 of 2019 observed as follows:‘‘The Respondent has the burden of proof pursuant to sections 107 and 108 of the Evidence Act to prove that the Appellant breached section 29(6) of the Act.…The assessed tax is for the period 2013-2016 being demanded in year 2018. The Tribunal has perused respondent’s pleadings and did not find evidence from the Respondent accusing the Appellant for gross or wilful neglect, evasion or fraudulent activities concerning taxes as provided for under section 29(6) of the Act. In this regard, the Tribunal find that tax assessment for the year 2012 and 2013 are time barred by virtue of section 29(5) of TPA.’’

50. Section 23 of the TPA provides for timelines for keeping records. In particular Section 23(1) (c) requires documents to be kept for five years or lesser period. The said Section provides as follows:‘‘1)A person shall—(a)Maintain any document required under a tax law, in either of the official languages;(b)Maintain any document required under a tax law so as to enable the person's tax liability to be readily ascertained; and(c)Subject to subsection (3), retain the document for a period of five years from the end of the reporting period to which it relates or such shorter period as may be specified in a tax law.’’

51. The view of the Tribunal is that in cases where there is evasion or fraud, the Respondent has the burden of proving, beyond a reasonable doubt that the Appellant committed evasion or fraud and the Tribunal does not have jurisdiction to decide criminal cases. However non-filing of returns is proof enough of gross or wilful neglect by a taxpayer as held in the High Court case of Mburu v Commissioner of Domestic Taxes (Income Tax Appeal E064 of 2021) [2023] KEHC 2594 (KLR), wherein the High Court upheld the Tribunal’s finding that it was lawful for the Respondent to assess tax for the year 2013 as stipulated under Section 29(6) of the TPA because the Appellant failed to file returns.

52. The Tribunal examined the Respondent’s default assessment dated 30th July 2023 and noted that the default assessment was in respect to the years 2013 to 2019. The Tribunal further notes the Respondent’s assertion that the Appellant did not prove beyond a reasonable doubt that it was registered for its PAYE obligation in May, 2018.

53. The Tribunal’s view is that the Appellant need not ‘prove beyond a reasonable doubt’. The Appellant should prove on a “balance of probabilities” that it was registered for its PAYE obligation in May, 2018. The reason that the Tribunal has taken this view is that the matter before it is not a criminal matter and, in any case, the Tribunal does not have jurisdiction to hear criminal matters. The Appellant must discharge its burden of proving that the decision of the Respondent is incorrect. However, the standard of proof lower than that required in criminal matters.

54. The Tribunal notes that as held in Mburu v Commissioner of Domestic Taxes (Income Tax Appeal E064 of 2021) [2023] KEHC 2594 (KLR), gross or wilful neglect can be proved where a taxpayer neglects to file its tax returns despite being required by the requisite law to do so. The Tribunal sighted and reviewed the documents provided by the Appellant in evidence and notes that the PIN Certificate of the Appellant issued on 7th March, 2019 indicates that the effective date for the PAYE obligation was 18th May 2018. The Tribunal finds that prior to 18th May, 2018 the Appellant neither had the obligation of filing PAYE returns nor could it have done so because the obligation was non-existent. The Respondent had no reason to apply the provisions of Section 29 (6) of the TPA in this regard.

55. The Tribunal notes the assertions of the Respondent that the Appellant was a registered Withholding tax VAT agent prior to 2018. The Appellant included as part of its documentary evidence a notification issued on 13th August, 2018. Appointing it as a Withholding tax VAT agent.

56. The Tribunal notes the Respondent’s inability to controvert this evidence by mere assertions at paragraphs 25 and 26 of its statement of facts. The burden of proof swung to the Respondent who ought to have made a contrary claim and adduced evidence that the Appellant was registered as a Withholding VAT agent prior to 13th August, 2018. The notification dated 13th August, 2018 states as follows:“This notification confirms that you have been appointed a Withholding VAT Agent under section 42A (1) of the TPA.As a Withholding VAT Agent, you are required to withhold VAT at the prescribed rate from your suppliers upon payment and remit the same to KRA within the prescribed timelines…..”

57. Consequently, the Tribunal finds and holds that the default tax assessments in respect to the 2013 to 2015 period were unlawful and statutorily time barred.

b. Whether the Appellant discharged its burden of proof. 58. The Tribunal having established that the 2013 to 2015 assessments were unlawful and statutorily time barred, will now consider whether the Respondent erred in confirming the 2016 to 2019 assessments. The Respondent stated that the Appellant failed to file documents to support its objection. The Tribunal examined the Appellant’s pleadings and noted that the Appellant filed documentary evidence to support its Appeal. The Respondent was therefore incorrect in its assertions. The Appellant adduced the following as its documentary evidence to support its Appeal: PIN certificate

Withholding VAT agent appointment notification

The objection decision,

A notice of notice of objection dated 3rd July 2023.

Tax arrears notification dated 30th March 2021.

59. The Tribunal’s view is that a taxpayer has a duty in law to demonstrate that the Respondent’s decision is incorrect. This is well captured under Section 56 (1) of the TPA which provides as follows:‘In any proceedings under this Part, the burden shall be on the taxpayer to prove that a tax decision is incorrect.’’

60. Further, Section 30 of the TATA provides as follows:‘‘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.’’

61. In order to discharge its burden of proving that the tax decision of the Respondent is incorrect, a taxpayer must adduce positive documentary evidence to support its case. Section 23 (1)(b) of the TPA provides as follows:‘‘a person shall— maintain any document required under a tax law so as to enable the person's tax liability to be readily ascertained.’’

62. Section 51(3) (c) of the TPA provides as follows:‘‘a notice of objection shall be treated as validly lodged by a taxpayer under subsection (2) if—all the relevant documents relating to the objection have been submitted.’’

63. The Tribunal’s view is that the Respondent is at liberty to request for documents in support of the notice of objection. In this regard, section 59(1) of the TPA provides as follows:‘‘(1)For the purposes of obtaining full information in respect of the tax liability of any person or class of persons, or for any other purposes relating to a tax law, the Commissioner or an authorised officer may require any person, by notice in writing, to—(a)Produce for examination, at such time and place as may be specified in the notice, any documents (including in electronic format) that are in the person's custody or under the person's control relating to the tax liability of any person;(b)Furnish information relating to the tax liability of any person in the manner and by the time as specified in the notice.’’

64. The Tribunal further notes the following provisions of Rule 5 of the Tax Appeals Tribunal (Procedure) Rules, 2015 on the evidence a taxpayer is expected to adduce in an Appeal before the Tribunal:‘‘(1)Statement of fact signed by the appellant shall set out precisely all the facts on which the appeal is based and shall refer specifically to documentary evidence or other evidence which it is proposed to adduce at the hearing of the appeal.(2)The documentary evidence referred to in paragraph (1) shall be annexed to the statement of fact.’’

65. The Tribunal cites the case of Singapore Motors Limited v Commissioner of Domestic Taxes (Income Tax Appeal E039 of 2021) [2024] KEHC 2443 (KLR) the High Court held as follows:‘‘This Court has remained emphatic that under section 30 of the Tax Appeals Tribunal Act (TATA) and section 56 of the Tax Procedures Act (TPA), the burden of proving that an assessment is wrong or excessive remains upon the taxpayer.’’

66. The Tribunal also cites the case of Darwine Wholesalers Limited v Commissioner of Investigations and Enforcement (Income Tax Appeal E051 of 2021) [2023] KEHC 23537 (KLR) where it was held as follows:“Under section 59 of the TPA and section 43 of the VAT Act the Commissioner is expressly empowered to ask for additional information to ascertain the tax chargeable. This legal position is in consonance with section 107 and 112 of the Evidence in that the balance of proof lies with the party with the knowledge of facts. Further section 30 of the Tax Appeals Tribunal Act (TATA) and section 56 of the TPA imposes the burden of proof on the tax payer to prove that an assessment was wrong or that it was excessive.”

67. The Tribunal notes that the foregoing paragraphs outline the legal requirements and established precedent that it is the burden of the taxpayer to discharge its burden of proving that the decision of the Respondent is incorrect and such a burden can be discharged by adducing evidence, up to and including documentary evidence. In the instant case, the Appellant adduced the following in evidence: PIN certificate- which proved that the Appellant was a registered taxpayer and PAYE obligation was added on 18th May 2018.

Withholding VAT agent appointment notification- proof that the Appellant was appointed as a VAT agent and the date of its appointment.

The objection decision- proof that the Respondent issued an appealable decision.

A notice of objection dated 3rd July 2023- This proved that the Appellant objected to the assessments.

Tax arrears notification dated 30th March 2021-proof that the Appellant was in arrears.

68. The Tribunal is of the view that the Appellant’s documentary evidence was insufficient. The Appellant ought to have adduced evidence to support its assertions regarding the meetings that were held; The PAYE deductions were made by the sub-county treasury; disbursement forms or other documents proving that not all the committee sitting allowance was paid out. Pursuant to Section 56(1) of the TPA and Section 30 of the TATA, the Appellant has the obligation of proving that the Respondent’s decision is incorrect. The Appellant failed to discharge its burden since it adduced insufficient evidence.

69. Consequently, the Tribunal finds and holds that the Appellant was unsuccessful in discharging its burden of proving that the Respondent erred in confirming the 2016 to 2019 tax assessments.

Final Decision 70. The upshot to the foregoing is that the Tribunal finds and holds that the Appeal partially succeeds and makes the following Orders:a.The Appeal be and is hereby partially allowed.b.The objection decision dated 4th September 2023 be and is hereby varied as follows:i.The 2013 to 2015 tax assessments be and are hereby set aside; andii.The 2016 to 2019 tax assessments be and are hereby upheld.c.Each party to bear its own cost.

71. It is so Ordered.

DATED AND DELIVERED AT NAIROBI ON THIS 7TH DAY OF FEBRUARY, 2025. ………………………………….CHRISTINE A. MUGACHAIRPERSON………………………….. …………….……………..BONIFACE K. TERERMEMBER………….…..…………… ……….……..…………….ELISHAH N. NJERUMEMBER………….…..…………… ……….……..…………….EUNICE N. NG’ANG’AMEMBER………….…..…………… ……….……..…………….OLOLCHIKE S. SPENCERMEMBER