MPs seek views on tax Bills amid fears of exclusion

The National Assembly has kicked off public participation hearings on amendments to various tax laws amid concerns over an attempt to leave out some regions.

The Finance and National Planning Committee is seeking public views on six Bills, including the Public Finance Management (Amendment) (No. 3) Bill, 2024, Public Finance Management (Amendment) (No. 4) Bill, 2024, Public Procurement and Disposal (Amendment) Bill, 2024. Others are Business Laws (Amendment) Bill, 2024, Tax Procedures (Amendment) Bill, 2024, and Tax Laws (Amendment) Bill, 2024.

The committee chaired by Molo MP Kuria Kimani started the hearings in Isiolo and Bungoma and is expected to hold four other sessions in Mombasa, Siaya, Taita-Taveta and Kericho counties on Tuesday and Wednesday.

Only six counties were selected for the exercise on the Tax Laws (Amendment) bill, 2024 and the Tax Procedures (Amendment) Bill, 2024.

Mr Joseph Kimani, a Nyeri resident, claimed that the National Assembly selected areas that they did not anticipate opposition.

“We know the trick they have used. If they came to Nyeri or other Mt Kenya region counties we would definitely oppose the taxes,” Mr Kimani said.

Residents of Isiolo who gave their views expressed fear that the exercise was a mere rubber stamp and warned MPs against sneaking in proposals that were rejected by Kenyans.

Mr Patrick Munialo and Mr Hassan Shano, who attempted to link the amendments to the rejected Finance Bill, 2024 were prevailed upon to abandon their argument and focus on the proposals.

“As you consider these amendments, be aware that Kenyans are planning to go to the streets again ...” Mr Munialo said before he was interrupted.

“We take note that even after the people rejected the Finance Bill, 2024, the very MPs who are here passed it. Why are you bringing back the Finance Bill through the amendments? Mr Shano asked.

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Mr Gatab Guracha said the intention to tax digital platforms earnings would cripple young people who were attempting to earn a living. Mr Salesa Forole accused the National Assembly of ambushing a clueless public, denying them a chance to make quality suggestions.

“We need at least a week to digest and understand the proposals being made in these amendments. We should have received information in time before the public participation forum,” Mr Forole said.

The residents also demanded efficient utilisation of public funds to increase confidence among taxpayers.

Asked to clarify why the public participation schedule on the crucial bills appeared to leave out other regions, the committee chairman responded: “We have a schedule we follow. We do six counties now, the next round of public participation (is done in) another six not previously covered.”

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In an interview, Nyeri Town MP Maina Mathenge supported this, saying public participation is usually done on a rotational basis. He urged Kenyans not to read too much into the choice of regions, adding that the views of all Kenyans would be incorporated in the final report.

“In any case people are required to send memoranda online and even deliver by hand to the Clerk of the National Assembly,” Mr Mathenge said in a telephone interview.

Mr Kimani said the committee will continue receiving public memoranda on the tax laws.

“We are also monitoring social media and the mainstream media for public views. All these views will be included in the committee report. It is in our interest to include the views of the public in the report and the laws we make. We assure Kenyans that this is not a cosmetic exercise,” Mr Kimani said.

Public hearings for the Public Finance Management (Amendment) Bills and the Public Procurement and Disposal (Amendment) Bill will take place at Parliament buildings on November 22 and 23. The committee will also receive public views on the Business Law (Amendment) Bill at KICC on November 25 and 28.

Mr Kimani, who was accompanied by Kigumo MP Joseph Munyoro, Julius Ruto (Kesses) and Adipo Okuome (Karachuonyo), admitted that there was a high trust deficit between citizens and the government on utilisation of public funds.

The National Treasury is seeking to raise an extra Sh174 billion through the tax laws amendments.

The Supreme Court, in a judgment in the case of British American Tobacco Kenya Limited vs Cabinet Secretary for the Ministry of Health and four others, stated that “public participation must be real and not illusory”.

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“It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to fulfil a constitutional requirement. There is need for both quantitative and qualitative components in public participation,” the court stated.

“Public participation is not an abstract notion; it must be purposive and meaningful. Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis,” the top court added.

The Tax Laws (Amendment) Bill 2024 seeks to reintroduce some taxes that were detailed in the Finance Bill 2024 that the government withdrew after public protests.

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Published by the National Assembly on November 1, the Bill aims to amend three laws—Income Tax, Value Added Tax and Excise Duty Acts. Among the proposals is the increment of the Railway Development Levy rate from 1.5 per cent to 2.5 per cent, which will occasion higher costs of imports and consequently a rise in prices of commodities.

The Bill also proposes a reclassification of the VAT status of a raft of goods and services from exempt to 16 percent.

It proposes an expanded definition of “royalty” to include all software-related payments and subject them to withholding tax.

If passed into law, digital platforms will be taxed as it proposes to classify payments made through digital market platforms, including digital content monetisation, as income earned.

Infrastructure bonds that are tax exempt will also attract tax at the rate of 5 per cent if the Bill becomes law, but this tax will not apply to bonds listed before the effective date.

Payments for the supply of goods to a public entity will also be subject to a withholding tax at the rate of 5 per cent for a non-resident and 0.5 per cent for residents.

The Bill also seeks to re-introduce minimum top-up tax and proposes to subject to tax income or principal sum of a registered family trust and capital gain relating to the transfer of title of immovable property to such a trust.

A proposal to replace the digital service tax with a Significant Economic Presence Tax, which was first proposed in the rejected Finance Bill 2024, has been reintroduced. The proposed tax, payable by non-resident persons, will be charged at the rate of 3 per cent of the gross turnover.

However, the Bill also contains some reliefs for taxpayers, such as an increased tax free limit for meals, non-cash benefits and pension. The Bill proposes to increase the threshold for tax exemption for meals that an employer offers employees from Sh48,000 to Sh60,000 per year. Further, it seeks to increase tax exemption for other fringe benefits from Sh36,000 to Sh60,000.

The amount of gratuity and similar payments to a registered pension scheme exempt from tax is also proposed to be increased from Sh240,000 to Sh360,000.

The proposed law also seeks to increase personal tax reliefs to include the affordable housing levy, contributions to the Social Health Insurance Fund and to a post-retirement medical fund up to Sh15,000.
 

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