August 11, 2022
High Court of Kenya reiterates importance of submission of proper documentation during the appeal process
On 29 July 2022, the High Court of Kenya (the High Court) reiterated the importance of taxpayers providing all relevant supporting documentation in their objections to assessments by the Kenya Revenue Authority (KRA).
In a case against a taxpayer (applicant) the High Court declined to admit information which the taxpayer had failed to provide to the KRA within the stipulated timelines as part of its objection to an assessment.
This was pursuant to a motion that the taxpayer filed at the High Court seeking leave of the court to produce supplementary documentation evidence which included Value Added Tax (VAT) payment slips, VAT monthly returns and e-acknowledgement VAT receipts to the Tax Appeals Tribunal (TAT).
The Court thus dismissed the application.
In May 2018, the KRA issued a demand notice of KES2,421,440 to the applicant related to VAT. The applicant in turn objected to the assessment in June of the same year, however, this objection was dismissed by the KRA which prompted the appellant to file an appeal before the TAT. The TAT dismissed the appeal.
Subsequently, the applicant filed an application at the High Court seeking leave of the court to present extra support documents which the applicant claimed were not submitted to the TAT by its tax agents.
The appellant asserted that the decision by the TAT was on the basis that sufficient proof had not been provided, which made the documents sought to be considered crucial for the determination of this appeal. The appellant also contended that the production of the documents would not prejudice the KRA in any way.
According to the applicant, the unsubmitted/omitted documents were of significant materiality to the decision previously reached by the TAT and it would be essential to have them considered.
As summarized below, the High Court addressed the factors that justify the admission of additional evidence during a tax dispute process.
The taxpayer's position
The applicant claimed that the administration of tax functions by the KRA should not deny the taxpayer's rights to submit additional evidence to the TAT.
The applicant also claimed that it should not suffer the consequences of negligence of its tax advisers who failed to submit the missing information.
The KRA's position
In its defense, the KRA asserted that the appellant had not submitted the said documents throughout the appeal process and should thus not be allowed to re-open a case through fresh information which had been concluded by the TAT.
It also asserted that the appellant had the information throughout the appeal process and was aware that the law has a proviso which allowed the appellant to request the TAT to admit additional information but did not do so.
The appellant's application should thus be dismissed summarily.
The Court's Determination
The High Court reviewed the submissions made by the two parties, the legislative provisions and case laws. It observed that it was at the discretion of the High Court to allow the production of additional evidence.
It also observed that based on case law, the High Court should determine that the additional information could not have been obtained with reasonable diligence for use during the trial; that the evidence is such that, if produced, it would probably have an important influence on the result of the case.
The High Court concluded that the evidence sought to be submitted was at all times in the possession of the appellant, this fact was within its knowledge and there was the opportunity to produce that evidence before the TAT. Allowing that evidence at this stage would be prejudicial to the KRA.
The application was thus dismissed.
The ruling reflects the importance of proper recordkeeping and ensuring that an objection meets the conditions set out in the law. The TAT has many times dismissed cases due to lack of sufficient supporting information.
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