Kenya Revenue Authority wins 9.3 Bn tax case

The Kenya Revenue Authority (KRA) has won a Kshs 9.3 billion tax case against Paleah Stores Limited in a judgment delivered on 22nd January 2021 by the Tax Appeals Tribunal. The amount constitutes of Kshs 1, 361, 746,295 corporation tax and Kshs 7,891,387,842 in value added tax inclusive of interest and penalties. Paleah Stores Limited had appealed to the Tribunal in May 2017 contesting assessment and demand of the taxes by the KRA for the years of income 2008 to 2014.

Paleah Stores Limited admitted in its statement of facts before the Tribunal that it was a victim of bad professional advice leading to its accounts and tax returns not reflecting the correct position of its operations for the stated years. It however contested the tax assessments on the grounds that KRA did not consider its input tax claims, operational expenses and that the computation of the taxes was unfair. The tax assessments and demands arose out of an investigation and a tax audit carried out on Paleah Stores Limited by KRA for the years of income 2008 to 2014. Based on Paleah Stores Limited’s appeal, the Tribunal framed three issues for determination.

First, the law in Kenya is that tax assessments are based on self-assessment. The Tribunal observed that Paleah Stores Limited had not complied with its statutory obligations of keeping proper records for purposes of computing tax. This necessitated KRA to obtain information from third parties such as Paleah Stores’ suppliers and bankers. In its statement of facts to the Tribunal, Paleah Stores Ltd stated as follows; “In absence of complete records, the Appellant and the Respondent agreed to use the Banking Method to compute income for corporation tax, sales for output tax and purchases for input VAT.”

The banking method revealed that Paleah Stores Limited had undeclared income tax and VAT which it failed to prove that it was excessive. “In the instant case, the appellant has not proved to the satisfaction of the Tribunal that the respondent’s additional income tax assessments for 2008 to 2014 years of income were excessive. From the foregoing, the Tribunal is of the considered view that the Respondent did not err in law and fact by issuing additional income tax assessments on the appellant…,” the Tribunal held.

Secondly, VAT in Kenya operates on a monthly self – assessment basis whereby output VAT is set off against input VAT such that where output tax is greater than input tax, tax liability arises and is payable. Paleah Stores Limited in its statement of facts admitted that it did not keep proper VAT records. The company did not contest that it made its VAT claims outside the allowed statutory periods. Based on the computations, Paleah Stores Limited’s entire claim for input VAT was disallowed.

Thirdly, Paleah Stores Limited alleged unfair administrative action by KRA. The Tribunal observed that the company failed to specify the exact nature of unfairness as alleged. KRA demonstrated that all procedural requirements. In the eyes of the Tribunal and based on evidence, KRA adequately lived up to its mandate and did not act unfairly. “The Appellant…was expected to provide cogent evidence of unfairness meted out by the Respondent and not merely casting aspersions of purported procedural unfairness,” the Tribunal held. The upshot is that the Tribunal found the appeal by Paleah Stores Limited unmerited and dismissed it.

Commissioner, Legal Services and Board Coordination

PRESS RELEASE 28/01/2021

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Kenya Revenue Authority wins 9.3 Bn tax case