Tax Appeals Tribunal Act

This Act may be cited as the Tax Appeals Tribunal Act.

This section provides definitions of terms used in the Act (for example: "appeal", "Cabinet Secretary", "Commissioner", "tax law", and "Tribunal").

Panels for proceedings must have at least three members including at least one High Court advocate; the Chairperson must preside if a member, otherwise designate a qualified member; if a member ceases or is unavailable the Chairperson must assign another member and proceedings continue.

The Secretary to the Tribunal must designate a clerk for each panel from among the Tribunal's staff; the clerk serves as the panel's secretary.

Creates the Tax Appeals Tribunal to hear appeals against tax decisions made by the Commissioner.

Membership of the Tribunal includes a Chairperson.

The Chairperson is qualified to be appointed as a Judge of the High Court.

The Chairperson and members of the Tribunal shall be recruited and appointed in accordance with the Third Schedule to the Judicial Service Act (Cap. 8A).

The Commission shall appoint Tribunal members in a staggered way so that at least one third are always in office.

Chairperson serves up to five years and is not eligible for re-appointment; members serve up to three years and may be re-appointed once for a further three years. Chairperson or member must serve full-time. Office is vacated on resignation by notice to the Judicial Service Commission or on specified disqualifying events (absence, bankruptcy, conviction, incapacity, becoming a public servant/employee of KRA or tax agent, or otherwise unfit).

Before assuming office, a person appointed as Chairperson or member of the Tribunal must take or subscribe to the oath or affirmation in the Schedule before the Chief Registrar of the Judiciary.

The Secretary to the Tribunal must be competitively appointed by the Judicial Service Commission; the Tribunal shall have other staff recruited competitively by the Commission; the Secretary must meet specified qualifications and eligibility conditions.

TheSecretary must manage the day-to-day affairs of the Tribunal.

The Chairperson and members, and the staff of the Tribunal, are entitled to be paid remuneration as determined by the Commission in consultation with the Salaries and Remuneration Commission; the Tribunal's expenses are payable from the Tribunal's funds.

The expenses of the Tribunal shall be paid out of the Judiciary Fund.

The Chairperson must ensure the Tribunal's business is conducted in an orderly and expeditious manner; the Tribunal must submit an annual report to the Chief Justice on its performance in the preceding year.

A person who disputes the Commissioner's decision under any tax law may appeal to the Tribunal if they give written notice to the Commissioner and, before appealing, pay a non-refundable fee of twenty thousand shillings; appeals are subject to the relevant tax law.

Sets procedural rules for appeals to the Tribunal: how appeals must be filed, required documents, time limits for filing and determination, who must serve copies, and how time limits may be extended or excluded when settlement occurs.

Proceedings of the Tribunal are exempt from the provisions of the Civil Procedure Act (Cap. 21).

The Commissioner must submit to the Tribunal a statement of facts and any other documents necessary for review; the Commissioner must serve the appellant with copies within two working days from submission; the Tribunal may require additional documents and may extend the time on written application if delay is justified.

The Secretary to the Tribunal must notify all parties in writing or electronically of the hearing time and place at least fourteen days before the hearing; the Tribunal may accept evidence orally or by affidavit or as it directs, and may adjourn the hearing if the appellant cannot attend because of absence from Kenya, sickness, or other reasonable cause.

The Tribunal may call any person to attend a hearing and give evidence, and may require production of any document when it believes that evidence will assist its deliberations.

If an appeal against a tax decision is filed, the Tribunal may order a stay or otherwise affect the operation or implementation of the decision under review to secure the effectiveness of the proceeding and determination of the appeal.

Members of the Tribunal must disclose any interest in a matter before the Tribunal that could conflict with their functions; members who have declared such an interest must not take part in the proceedings except with consent of all parties; taking part in contravention is an offence.

Sets out powers of the Tribunal during a proceeding, including taking evidence on oath, proceeding in absence of a party with notice, adjourning hearings, receiving affidavit evidence, administering interrogations, and requesting examinations of witnesses abroad.

Insulting a member or an employee of the Tribunal in relation to the exercise of powers and functions under this Act is captured as contempt of the Tribunal.

Person who refuses or fails to attend at the time and place mentioned in a summons to give evidence is described as disobeying the summons.

The Tribunal may engage an independent expert for proceedings and may use that expert's views in deciding an appeal; the Chairperson may determine the terms and conditions for engaging the expert.

Tribunal proceedings must be judicial in nature; the Chief Justice must prescribe rules for Tribunal proceedings; the Tribunal is entitled to assistance available to a Kenyan Court.

An appellant may appear in person or be represented by a tax agent or an advocate of the High Court of Kenya; the Tribunal may adjourn the hearing if the appellant cannot attend due to absence from Kenya, sickness, or other reasonable cause.

Provides an opportunity to make submissions concerning evidence.

Section 27 allows an appellant to withdraw an appeal in writing or electronically; gives the Tribunal power to dismiss or uphold appeals where a party fails without reasonable cause to appear, proceed or comply; and allows the appellant or respondent to apply for reinstatement within thirty days, with the Tribunal able to reinstate and give directions.

Parties may apply to the Tribunal at any stage to settle the matter outside the Tribunal; the Tribunal must grant such requests subject to conditions it imposes; parties to the appeal must report the outcome of such settlement to the Tribunal.

The Tribunal must decide by majority; the Chairperson has a casting vote if votes tie. The Tribunal must give written or electronic reasons, serve copies to parties, publish decisions for public inspection, and take measures to protect trade secrets; Tribunal decisions take effect on notice and are enforceable as court decisions.

An aggrieved person may apply to the Tribunal for review within seven days; the Tribunal may set aside, vary or affirm the decree or order and must state reasons within fourteen days after receipt of the application.

Section 30 is titled 'Burden of proof' and begins: 'Section where an appeal relates to an assessment, that the assessment is excessive; or'

If the Tribunal awards costs, it must issue a certificate stating the amount of costs on application by the person awarded costs; that certificate may be filed in the High Court and, when filed, is deemed a High Court decree and may be executed as such.

A party to proceedings before the Tribunal may appeal to the High Court within thirty days (or a longer period the High Court allows); the appellant must serve a copy of the notice of appeal on the other party, and a party that has appealed must within two days of lodging the notice serve a copy on the other party. The High Court shall hear such appeals in accordance with rules set out by the Chief Justice.

Documents required to be in writing under this Part may be submitted either in hard copy or by electronic means.

Section 33 lists several offences (false statements/claims, holding out as registered when not, failing to keep required records, involvement in fraudulent tax evasion) and allows the court, upon conviction, to order forfeiture of taxable supplies or their assessed value.

Employers and corporate officers can be held guilty for offences committed by employees, agents, or the body corporate unless they prove lack of knowledge or that they took all reasonable steps or diligence to prevent the offence.

Actions done or omitted wilfully or dishonestly by such officer.

The Chairperson may disclose information to a government revenue or statistical department employee when needed for that person's official duties and solely for revenue or statistical purposes.

A person convicted of an offence under this Act for which no other penalty is provided is liable to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both.

A certificate from the Commissioner stating an amount is due is conclusive evidence that the amount is due and payable from that person.

If a person is convicted under this Act by a court of competent jurisdiction presided over by a resident magistrate, the court may impose the maximum sentence prescribed by this Act for that offence.

An authorised officer may, with the approval of the Director of Public Prosecution, appear and prosecute before a subordinate court for an offence under this Act.

Section 43 has been repealed.

Section 44 preserves existing tax appeal bodies and sets transitional arrangements for appeals, membership and staff of the Tribunal.