Columnists

Tax judgment might open Pandora’s field

Tuesday September 28 2021

Final week, the Excessive Court docket declared the minimal tax handed within the Finance Invoice 2020 unconstitutional, handing a setback to the Kenya Income Authority (KRA) which had deliberate to gather Sh21 billion yearly.

Inside hours after the judgment, the KRA introduced that it will be transfer to the Court docket of Enchantment to have the choice overturned.

At first when the KRA made this pronouncement, I assumed it was leaping the gun as a result of being a tax administrator and never a coverage maker, it ought to have let Treasury deal with the attraction.

However going by the judgment, the KRA has the locus standi to attraction the ruling.

Within the judgment, the Excessive Court docket discovered that the tax pointers issued by the KRA have been non-binding and never enforceable by regulation as a result of they weren’t enshrined within the Statutory Devices Act.

The Act would then require that the rules undergo public participation and likewise be tabled earlier than Parliament for approval.

This a part of the judgment is what invited the KRA to guide an attraction as a result of tax pointers is a matter inside its purview.

There may be want for this a part of judgment to be clearly elaborated within the Court docket of Enchantment as a result of it stands to open the floodgates of litigation for a lot of regulators.

There are instances the place the KRA has clearly usurped the powers of the Nationwide Meeting on tax coverage making.

However to say it has no discretion to subject tax pointers and has to undergo the Statutory Devices Act signifies that implementation of tax legal guidelines after the Finance Invoice has been handed into regulation must look forward to months.

The compliance process demanded by the Statutory Devices Act will imply the KRA is not going to be gathering taxes throughout the required timeframe of the monetary 12 months and so even the federal government’s monetary obligations is not going to be met.

Why this a part of the judgment opens floodgates is that it offers grounds for any guideline issued by a regulator to be challenged.

For instance, it signifies that even the Central Financial institution of Kenya when issuing the Financial Coverage Committee updates that are additionally regulatory pointers ought to undergo the Statutory Devices Act. So, all regulators will discover their fingers tied in assembly their mandate.

Second is that the court docket discovered the minimal tax as discriminatory. Now, right here we’re strolling on skinny ice as a result of if we’re to strictly comply with this precept {that a} tax regulation shouldn’t be discriminatory, we’re opening a Pandora’s field.

A taxpayer who pays Pay As You Earn can argue that the tax regulation is discriminatory as a result of these within the casual sector don’t pay Pay As You Earn.

One other state of affairs is {that a} taxpayer can argue that it’s discriminatory for the regulation to exempt individuals with disabilities from paying Pay As You Earn or import obligation on automobiles they convey into the nation.

So, segmentation in tax coverage design to impact fairness is necessary, and segmentation is in tandem with the truth that a tax coverage will likely be discriminatory.

The place I agree with the ruling is on the grounds of equity. The design of this tax regulation was to focus on companies perpetually declaring losses by inventive accounting.

However in the middle of making an attempt to handle this tax avoidance subject, the regulation punishes everybody making losses when it initially targets those that keep away from paying company tax by declaring losses.

From the implementation of this regulation, it was companies which have genuinely made losses who bore the complete brunt of this regulation.

Little question there’s a tax avoidance case for the minimal tax. There are firms which have perpetually been reporting losses for like 10 years, which begs the query how their capital has been resilient for all that whereas.

Quite a lot of jurisdictions like Tanzania, Cameroon, Taiwan, and america have already got the minimal tax in place to handle this tax avoidance drawback. The issue has been the design of the minimal tax to fulfil its intention.