The Tax Appeals Tribunal (Amendment) Act, 2022

LEGAL TAKE: LEGISLATIVE BRIEFING

By Lewis Ndonga

Ever had a grievance with the decision of a KRA Commissioner? Your first recourse shall be to the Tax Appeals Tribunal (the Tribunal).

The Tribunal is established under the Tax Appeals Tribunal Act No. 40 of 2013 (the Act). ?The Act also gives provisions on the proper appeal procedure to be followed in approaching the Tribunal. Recently, the Tax Appeals Tribunal (Amendment) Act No. 7 of 2022 made several amendments to the Act, which we will be highlighting in our latest Legal Take.

The Tribunal: Administrative changes

1. Owing to the judicial functions carried out by the Tribunal, the Chairperson, members and Secretary to the Tribunal shall now be appointed by the Judicial Service Commission (the JSC) as opposed to the Cabinet Secretary. These appointments must be made in accordance with the Third Schedule to the Judicial Service Act, 2011 that provides for procedures on appointment of judicial officers. Furthermore, the expenses of the Tribunal shall now be paid out from the Judiciary Fund.
2. ?To ensure that the Tribunal is always functional, the JSC is required to make appointments in a staggered manner to ensure that at least one third of the Tribunal members are in office. ?
3. The limitation on employees of KRA from being members of the Tribunal has been tightened. Former KRA employees are eligible for appointment as members of the Tribunal, provided that they were not employed by KRA at any time within 5 years prior.
4. ?Despite the new changes in law, the Chairperson and all Tribunal members shall continue to hold office until their term expires under the Act.

Appeals procedure: Approaching the Tribunal

1. The Digital Age! Parties can now make notice of appeals electronically, filing applications electronically and withdrawing appeals electronically. The Secretary can now also inform parties of hearing dates electronically. The Tribunal may also deliver its decision in writing or electronically.
2. The Act now allows the Tribunal, through majority vote, to extend the period of hearing and determining appeals brought before it by a maximum period of 30 days where the panel cannot conclude the hearing within the stipulated 90 days.
3. The fine payable for acts of contempt such as causing disturbances, interrupting the proceedings or insulting a member of the Tribunal has now been increased from K.Shs.100,000/= to K.Shs.500,000/= payable upon conviction.
4. Section 29A of the Act now gives recourse to parties aggrieved by a decree/order of the Tribunal which cannot be appealed against, to apply for review of the said decree/order. A party may seek for review on the grounds of:

• the discovery of new and important evidence unknown to the applicant prior;
• an apparent mistake or error; or
• any other sufficient reason.

The Tribunal must decide on the application of review within 14 days.

A party that appeals to the High Court against a decision of the Tribunal must serve a copy of the notice of appeal on the adverse party within 2 days of filing the same.

The immunity afforded to officers of the Tribunal has been specified to apply to the Chairperson, members and officers of the Tribunal, who acted or failed to act in good faith in the discharge of their functions. This immunity applies to both current and former Chairpersons, members and officers of the Tribunal.?