May 26, 2021 Kenyan Government presents Finance Bill, 2021 to Parliament Executive summary On 4 May 2021, the Kenyan Treasury Cabinet Secretary presented the Finance Bill, 2021 (the Bill) to Parliament. It is expected that Parliament will seek stakeholder and public comments before enactment. Once the public consultation period ends, the Bill will be resubmitted by Treasury to Parliament before it is signed into law by end of June. The Bill is presented annually as a matter of ordinary Fiscal Budgetary course and amends the various tax laws: the Income Tax Act (ITA), the Value Added Tax Act, 2013 (VAT Act), Excise Duty Act, Tax Procedures Act, 2015 (TPA), and the Miscellaneous Fees and Levies Act. The Bill also provides for other miscellaneous amendments to other Acts. This publication summarizes the key proposals contained in the Bill. All proposals are expected to come into effect upon assent by the President (or as specifically provided in the Finance Act, 2021). Detailed discussion Business tax Definition of control The definition of the term ”control” was deleted when the Second Schedule to the ITA was repealed. The Bill seeks to amend Section 2 of the ITA to provide for a new definition of control in relation to a person to mean:
Similar to Uganda’s definition of control, the proposed definition is broad and deep; it will effectively impact a larger number of taxpayers. The Kenya Revenue Authority/Commissioner will also have discretion to impute control in business relationships, dealings and practices. The definition is also likely to have a bearing on licensing arrangements between independent parties and dependent/exclusive distribution models. Definition of infrastructure bond The Bill seeks to define the term “infrastructure bond” to mean, a bond issued by the Government for the financing of a strategic public infrastructure facility including a road, hospital, port, sporting facility, water and sewerage system, or a communication network. Definition of permanent establishment After many years of discussion, the Bill proposes to repeal the current definition of the term “permanent establishment” (PE) and introduce a new definition which aligns with international best practice under the Organisation for Economic Co-operation and Development (OECD) and United Nations (UN) Model Tax Conventions, as well as the Base Erosion and Profit Shifting (BEPS) report. The following key changes have been proposed to the current definition of PE:
Expansion of Digital Services Tax (DST) The Bill expands the scope of DST to include any income generated by businesses over the internet or electronic networks. This is a deliberate effort to expand the tax base of the digital economy. The Bill also proposes to exclude the following from the ambit of DST:
Persons subject to the DST will be required to submit returns and pay tax due on or before the 20th day of the month following the month in which the digital services were offered. Indefinite carryforward of tax loss The Bill proposes to remove the 10-year time limitation. If the Bill is passed, taxpayers will utilize a tax loss arising in a year of income to reduce taxable business income in subsequent years indefinitely. While this appears to be a positive development, especially for the protection of tax losses resulting from a claim of investment allowances, its usefulness will be tested once the constitutionality of the minimum tax provision is determined. Deductibility of interest expense on loans The Bill seeks to tighten the thin capitalization provision from the simple 3:1 ratio, to 30% of EBITDA thereby limiting all debt-raising expenses. Interest paid or payable to related persons and third parties will be restricted to 30% of earnings before interest, taxes, depreciation and amortization (EBITDA). Exempt income will be excluded from earnings. However, payments that are economically equivalent to interest and expenses incurred in connection to raising finance will be considered as interest. Previously, the restriction of interest deduction was applicable to thinly capitalized entities, that is, those that exceeded the debt to equity ratio of 3:1. The proposed formula introduces a paradigm shift in the computation of deductible interest expense by ignoring the gearing ratio of a company and seeking to protect the erosion of taxable income by claim of interest expenses. Country-by-Country Reporting (CbCR) The Bill seeks to legislate CbCR in line with the requirements of members of the OECD/G20 Inclusive Framework on BEPS. The BEPS Associate countries, Kenya included, committed to implement four minimum standards namely countering harmful tax practices (Action 5), countering tax treaty abuse (Action 6), transfer pricing documentation and CbCR(Action 13), and improving dispute resolution mechanisms (Action 14). The ultimate parent entity of a multinational enterprise (MNE) group based in Kenya will be required to file an annual return within 12 months after the last day of the Group’s financial reporting year where the entity’s gross turnover exceeds a prescribed threshold. The Bill is silent on the threshold. The information to be included in the return includes:
An MNE Group has been defined to mean a group that includes two or more enterprises that are resident in different jurisdictions including PEs while ultimate parent entity means, “an entity that is resident in Kenya for tax purposes; is not controlled by another entity; and owns or controls a multinational enterprise group.’’ The objective of the proposal is to enhance information sharing across different jurisdictions so that MNEs pay their fair share of tax. Amendment on Limitation of Benefits (LoB) rule Currently, in order to enjoy treaty benefits, 50% of the underlying ownership of a company must be held by individuals. The Bill widens this restriction to persons. ”Person” includes both natural and corporate person; the change effectively extends treaty benefits limitations to companies, partnerships, trusts, Governments or such other bodies. Amendments to investment allowance To address the gaps in the investment allowance regime introduced in 2020, the Bill proposes amending the basis for claiming an investment allowance on the 50% balance from the first year of investment from reducing balance to straight line. The Bill also proposes to:
While these proposals are positive, the Bill did not define farm works as expected. Taxation of extractive sector The Bill seeks to reduce the claim of tax depreciation for machinery used to undertake prospecting/exploration operations from 100% to 50% in the first year of use, with the balance being claimed in the subsequent two years on straight line basis. Further the Bill seeks to:
Personal tax Amendment to insurance relief The Bill seeks to extend the scope of insurance relief to contributions made to the National Hospital Insurance Fund. The proposal is intended to encourage Kenyans to contribute towards health care in line with the Government’s agenda of universal health coverage. Tax Procedures Act, 2015 (TPA) Increased scope of TPA The Miscellaneous Fees and Levies Act, 2016 has been brought under the ambit of the TPA. Administrative and procedural matters will thus be governed by the provisions of the TPA. International tax agreements Taking into consideration recent losses from tax disputes, the Bill seeks to incorporate the pacta sunt servanda principle by providing that international tax agreements that the Government has concluded relating to international tax compliance, prevention of tax evasion and exchange of tax information shall have effect in the manner prescribed in such agreements. Additionally, disclosure of any information obtained pursuant to the agreements will be governed by the provisions of the said agreements. Common Reporting Standards
Amendment to statute of limitations The Bill proposes to extend the time period that a taxpayer is required to maintain their records from five to seven years. The time limit within which a taxpayer can amend a tax return is also to be increased from five to seven years. Amendments on taxation of the digital economy The Bill proposes to:
Exemption from withholding Value Added Tax (VAT) The Bill seeks to take away the power of the Commissioner to exempt any supplier from withholding VAT obligations. Currently, if a taxpayer can demonstrate to the Commissioner that due to the nature of his business and as a result of withholding VAT he will be in a continuous VAT credit for a period of not less than 24 months, the Commissioner can exempt such taxpayer from the withholding VAT regime. This proposal will be punitive to taxpayers who are in perpetual VAT credit position as it will exacerbate the situation especially due to the delayed settlement of VAT refunds. Other proposed amendments The Bill seeks to:
Value Added Tax Expansion of scope of taxation of digital marketplace supplies The Bill proposes to amend Section 5(7) of the VAT Act to expand the tax base for taxation of the digital marketplace to include supplies made over the internet or an electronic network. Clarification on imported services The Bill proposes to delete the word ”registered person” from section 10 to align the changes enacted by the Finance Act 2019 which brought to tax imported services provided to non-registered persons in addition to registered persons. Expansion of restriction on deductibility of input tax The Bill proposes to expand the restriction on deductibility of input tax to include leased and hired passenger cars or minibuses and their repairs and maintenance thereof unless they are acquired, exclusively for the purposes of making taxable supply of that automobile in the ordinary course of the business of selling or hiring/leasing of passenger cars or mini buses. Deferment of payment of tax The Bill proposes to amend Section 19(2) of the VAT Act to also allow unregistered persons to be eligible for deferment of payment of tax due. Registration for VAT by Group companies The Bill proposes to delete the current provision allowing single VAT registration by a group of companies. The regulations required to operationalize this provision have never been issued hence the lack of implementation. Group VAT registration (if implemented) would have been administratively efficient for companies within a group as all would have been treated as one person and would have filed a single VAT return. Group VAT registration has worked in other jurisdictions (e.g., the United Kingdom). Group registrations would also have been efficient for group companies providing digital services and earning related revenues from Kenya. Enactment of VAT regulations The Bill proposes to remove the requirement to table VAT Regulations made by the Cabinet Secretary (CS) before the National Assembly for approval before they take effect. This appears to be contrary to the principle of separation of powers with the CS seemingly having legislative powers. Harmonization with the Common External Tariff (CET) The Bill has proposed several deletions from and inclusions in the First schedule which are meant to align the Harmonized System Codes in the Value Added Tax Act, 2013 to the East African Community Common External Tariff, 2017. However, the VAT status of these products remains exempt. Excise Duty Amendments to key definitions The Bill seeks to amend Section 2 of Excise Duty Act, 2015 to introduce the following new definitions:
Provided that if there are two or more persons and any of them with the knowledge or consent of the others has any excisable goods in his custody or possession, such goods shall be deemed to be in the custody and possession of all of them.
Relief from excise duty paid The Bill proposes to allow licensed persons who have paid tax on purchased internet data in bulk for resale, to offset it against the excise duty payable on internet data services supplied to the final consumer. This proposal is timely especially for taxpayers in the internet data business. “Input” excise duty will no longer be a cost as it will be offset against “output” excise duty charged/payable. Amendment of the list of excisable services The Bill proposes to reintroduce excise duty on betting services at 20% of the amount waged or staked. Excise duty on betting services was introduced in 2019, repealed in 2020 and now reintroduced in 2021. Miscellaneous Fees and Levies Act Application of Tax procedures Act, 2015 (TPA) The Bill proposes to amend Section 9 of the Act to bring the following under the ambit of Section 47 of the TPA:
With this amendment, refund of import declaration fee, export duty and railway development levy will be conducted as per the TPA provisions. Similarly, calculation of penalties and interest accruing on unpaid amounts shall be as per the TPA provisions. Exemptions from Import Declaration Fes and Railway Development Levy The Bill proposes to exempt importation of goods which the Cabinet Secretary determines to be of public interest or which promote investment (and whose value is not less than KES5b) from Import Declaration Fees (IDF) and Railway Development Levy (RDL). This proposal is a welcome move by the Government to encourage investment in Kenya. However, it remains to be seen if the KES5b threshold is feasible. Prior to 2020, there was a similar exemption from IDF with a much smaller threshold of KES200m that attracted many potential investors. _________________________________________ For additional information with respect to this Alert, please contact the following: Ernst & Young (Kenya), Nairobi
Ernst & Young Société d’Avocats, Pan African Tax – Transfer Pricing Desk, Paris
Ernst & Young LLP (United Kingdom), Pan African Tax Desk, London
Ernst & Young LLP (United States), Pan African Tax Desk, New York
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