KENYA: COURT CLARIFIES THE WITHHOLDING TAX LIABILITY ON PAYERS FOR PERIOD BETWEEN JUNE 2016 TO NOVEMBER 2019
In a ruling delivered by the High Court on 13 May 2022 in the case of Commissioner of Domestic Taxes Department v Pevans East Africa Limited and Shop and Deliver Limited and 5 Others (HCCOMMITA/E003/2019), (being an appeal by the KRA against a decision of the Tax Appeals Tribunal) the court determined among other issues, the question of whether the respondents, being several betting companies, were liable for withholding tax not paid on the winnings paid to punters for the years 2018 and 2019. In upholding the Tribunal’s position, the High Court held that the provision that empowered the Commissioner to claim taxes from a payer who fails to account for withholding tax as though the tax were due from them was deleted from the Income Tax Act effective 9th June 2016 and only reinstated via the Tax Procedures Act on 9th November 2019. Therefore, the Court found that the Commissioner had no legal basis to demand withholding tax from the betting companies for the review period, being the year 2018 and part of 2019.
The implication of the ruling is to confirm that for the period between 9th June 2016 to 7th November 2019, there was no legal basis for KRA to demand withholding tax from payers of amounts which were subject to withholding tax where such payers had failed to withhold the tax. Therefore, any KRA demands for withholding tax from payers for the said period would fail on that basis.