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Appealing the decision of the Tax Appeals Tribunal at the High Court.

June 10, 2024 Publications

There is no limitation for the period covered in a tax investigation in cases of gross/willful, neglect, evasion or fraud by a taxpayer. In other instances, assessments shall be made within 5 years from the date of the last tax return.
A tax dispute commences when the Commissioner of Taxes audits a taxpayer after conducting its investigations, and it proceeds as follows:

 FilingTimelinesLegal Provision
1.The KRA conducts an audit and investigation on the taxpayer and sends an assessment. Section 29 of the Tax Procedures Act (TPA)
2.If the taxpayer, disagrees with the assessment, he objects to KRA by filing an objection. Within 30 days of receiving the assessmentSection 51(2) of the TPA 
3Taxpayer pays the entire amount of tax due under the assessment that is not in dispute or has applied for an extension of time to pay the tax not in dispute. Before lodging Notice of Appeal for the Notice of Appeal to be rendered valid.Section 51(3) of TPA
4KRA renders an objection decision.  Within 60 days of the taxpayer filing of a valid objectionSection 51(11) of the TPA
5If the taxpayer is dissatisfied with the objection decision, they appeal to the Tax Appeals Tribunal and:File a Notice of Appeal   File a Memorandum of Appeal and a Statement of Facts   Within 30 days of Objection Decision Within 14 days of filing the Notice of Appeal   Section 51(12) of the TPA and Section 13 (1) and (2) of the Tax Appeals Tribunal Act
6Serve the documents to KRA  Within 2 days of filing Notice of AppealSection 13(5) of the Tax Appeals Tribunal Act.
7KRA will respond and file their response with the Tribunal.Within 30 days of being served with the Notice of AppealSection 15 of the Tax Appeals Tribunal Act
8The Tribunal will send out hearing notices, conduct the hearing and give their determination. Section 13(7) of the Tax Appeals Tribunal Act
9TAT ADR alternative:Once an Appeal has been filed at the Tribunal, either party may apply to have the matter discussed at Alternative Dispute Resolution (ADR).  The ADR Discussions at this stage will culminate in an ADR Agreement which is executed by both parties and the Facilitator.The executed ADR Agreement will form the basis of the Tribunal/Court Consent which shall then be filed therein, in the prescribed form.Where parties fail to settle the dispute within the period, the dispute shall be referred back to the Court or the Tribunal that permitted the settlement.  At any stage during the proceedingsThe ADR settlement shall be made within 90 days from the date the Tribunal permits the settlement.If a matter is not concluded by the 90thday, the applicant may seek leave of the Tribunal or court to engage in a second round of ADR in order to allow them to complete the DiscussionsIf the Court initiated the ADR, the settlement shall be arrived at dependent on court timelines granted. Article 159 (2) (c) of the Constitution of Kenya Section 28 of the Tax Appeals Tribunal Act.Section 13(8) of Tax Appeals Tribunal Act  Section 55 of the TPA   Section 55(2) of the TPA. 
10If aggrieved with the decision of the Tribunal, appeal to the High Court on a question of law only; how:File a Notice of Appeal before the Tribunal     2. File a Memorandum of Appeal in the High Court and serve a copy on the Respondent. Within 30 days of decision of Tribunal      Within 30 days of the date of service of a Notice of AppealSection 56 of the TPA Section 32 of the Tax Appeals Tribunal Act and Section 53 of the TPARule 3 of The Tax Appeals Tribunal (Appeals to The High Court) Rules.Rule 5 of The Tax Appeals Tribunal (Appeals to The High Court) Rules.
11The Appellant shall serve a copy of the notice on the other party. Within 2 days of lodging a Notice of AppealSection 32(1A) of the Tax Appeals Tribunal Act
12The Respondent shall file a Statement of Facts with the Registrar.Within 30 days of service upon him of the copy of Memorandum of Appeal by the AppellantRule 8 of The Tax Appeals Tribunal (Appeals to The High Court) Rules.
13Alternative:Any party can also apply for an out of court settlement before the Court.The settlement shall be made within 90 days from the date the Court permits the settlementSection 55(1) of the TPA.
14If aggrieved with the decision of the High Court, appeal to the Court of Appeal  Within 30 days of decision of the High CourtSection 54 of the TPA

The Tax Procedures Act, CAP 469B provides on the procedure to be followed, along with the strict timelines to be adhered to by a taxpayer who wishes to dispute a tax decision from the point of assessment up until an appeal to the Court of Appeal.

By: MAUREEN MUTAI

For more insights pertaining to this matter, you can reach the writer at maureen@mmsadvocates.co.ke. You can also contact us at MMS Advocates, Lower Duplex Apartments, LOWER HILL ROAD, or email us at info@mmsadvocates.co.ke

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