The Income Tax Act

The Finance Act of 2021 has introduced new definitions as follows;

Definition of Control

The Finance Act has defined “Control” as follows;

• A person is deemed to exercise control if they hold at-least 20% of the voting rights in a company, directly or indirectly. Previously, this has been at 25% as provided under the Income Tax Act.
• When a loan advanced by a person constitutes at least 70% of the total asset of another person, then the lender shall be deemed to have control. This however excludes a loan from a financial institution.
• Where a guarantee for indebtness includes at least 70% of the total indebtness of the other person, then the guarantor shall be deemed to have control over the other party. This excludes guarantee from a financial institution.
• When a person appoints more than half of the Board of Directors of another person, or at least one director or executive member of the governing board of that person, then they shall be deemed to exercise control.
• A person owns or has the exclusive rights over the intellectual property on which another person is wholly dependent on for their manufacturing or goods processing, articles or business carried on by other person.
• A person that supplies at least 90% of the purchases to another person, or influences the price or any other condition for the purchases of the other person shall be deemed to exercise control.
• A person that purchases at least 90% of the sales to another person, or influences the price or any other condition for the sales of the other person shall be deemed to exercise control.
• A person has any other relationship, dealing or practice with another person, which is subject to the Commissioner to deem that it constitutes control.

This is effective starting 1^st July 2021.

Permanent Establishment

The Finance Act has replaced the meaning of Permanent Establishment to include;

• A fixed place of business where business is wholly or partly carried on and includes a place of management, a branch, an office, a factory, workshop, a mine, an oil or gas well, a quarry or any other place of extraction or exploitation of natural resources, a warehouse for business providing storage facilities to others, a farm, a plantation or other place where agricultural, forestry plantation or related activities are carried on and a sales outlet.
• A building site, construction, assembly or installation project or any supervisory activity connected to the site or project, but only if it continues for a period of more than 183 days, which is on aggregate for continuous projects.
• The provision of services by a person through employees or other personnel engaged for that purpose, but only where the services or connected business in Kenya, continue for a period of or exceeding in aggregate 91 days in any 12-month period commencing or ending in any year of income concerned. This shall also include the consultants providing consultancy services on behalf of non-residents.
• An installation or structure used in the exploration for natural resources that continue for a period of not less than 91 days.
• A dependent agent of a person who acts on their behalf in respect of any activities which that person undertakes in Kenya including habitually concluding contracts, or playing the principal role leading to the conclusion of contracts that are routinely concluded without material modification by the person.

Where the activities are of a preparatory or auxiliary character, a PE shall not include;

• The use of facilities solely for the purpose of storage or display of goods belonging to an enterprise.
• Maintenance of a stock of goods belonging to an enterprise solely for the purpose of storage or display.
• Maintenance of a stock of goods belonging to an enterprise solely for the purpose of processing by another enterprise.
• Maintenance of a fixed place of business solely for the purpose of purchasing goods or collecting information for the enterprise.
• Maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity.
• Maintenance of a fixed place of business solely for any combination of using it solely for storage purposes or for purpose of carrying on any other activity as highlighted above.

This is effective starting 1^st July 2021.

Charge of tax on digital income

The Finance Act has introduced income (digital service) tax that will be charged on income accrued from a business carried out over the internet or an electronic network including through a digital marketplace. The Finance Act has redefined ‘Digital Marketplace’ to mean an online or electronic platform that enables users to sell or provide services, goods or other property to other users. This is effective starting 1^st July 2021. Minimum tax exemptions The Finance Act 2021 has introduced exemptions to minimum tax to the following persons.

• A person engaged in business whose retail price is controlled by the Government.
• A person engaged in insurance business
• A person engaged in manufacturing and that person’s cumulative investment in the preceding four years from assent is at least ten billion shillings
• A person licensed under Special Economic Zone Act 2015
• A person who is engaged in distribution business whose income is wholly based on a commission

This is effective from 1^st July 2021

Deadline for Submitting returns and Paying Digital Service Tax

The Finance Act has clarified the deadlines for submitting digital service tax. A person subject to Digital service tax shall submit and pay the tax due to the Commissioner on or before the 20th day of the month following the end of the month in which the digital service was offered..

Limiting DST to non-residents persons

The Finance Act 2021 also limits the persons subject to Digital Service Tax to the non-residents only. Exemption of Digital Service Tax Those whose income is subject to Withholding tax as stipulated under Income Tax Act section 35 are exempt from Digital service Tax and those non-resident person in Kenya who are involved in the business of transmitting messages by cable, radio, optical fibre, television broadcasting, Very Small Aperture Terminal (VSAT), internet, satellite or by any other similar method of communication as stated under section 9 (2) of the Income Tax Act

Thin Cap Rules

The Finance Act has introduced new thin capitalization to apply to the gross interest paid or payable to related persons and third parties in excess of 30% of EBITDA (Earnings before Interest, Taxes, Depreciation & Amortization). This will apply to;

• Interest on all loans
• Payments that are economically equivalent to interest.
• Expenses incurred in connection with raising the finance.

Provided; an amount of deemed interest where the person is controlled by a non-resident person alone or together with not more than 4 other persons and where the company is not a bank or a financial institution licensed under the Banking Act. Exemptions on thin capitalization The Finance Act has exempted the following from thin capitalization

• Banks or financial institutions licensed under the Banking Act;
• Micro and small enterprises registered under the Micro and Small Enterprises Act, 2012

This is effective starting 1^st January 2022.

Country-by-Country Reporting for Multinational Enterprises (CBC reporting)

The Finance Act has introduced country by country reporting through Section 18B in the Income Tax Act. The Finance Act defines multinational enterprise group to include two or more enterprises which are resident in different jurisdictions including an enterprise that carries on business through a permanent establishment or through any other entity in another jurisdiction. An ultimate parent entity is an entity that is resident in Kenya, not controlled by another entity and owns or controls a multinational enterprise group. An ultimate parent entity of a multilateral enterprise group should submit to the Commissioner a return describing the group’s financial activities in Kenya and in all other jurisdictions where the group has taxable presence, not later than 12 months after the last day of reporting financial year of the group. The Finance Act 2021 further states that Multinational Enterprises should give financial report that contain group’s aggregate information including amount of revenue, profit or loss before tax, income tax paid and accrued, stated capital, accumulated earnings, no. of employees and tangible assets (other than cash & cash equivalent) in each jurisdiction in which the group operates. This changes the dynamics on how multinational enterprises groups with branches and Permanent Establishments have been operating in the country. This will enable KRA to comprehensively perform a transfer pricing risk assessment and other risks associated with profit shifting for group enterprises. Insurance relief on contribution towards National Hospital Insurance Fund The Finance Act 2021 has included contribution to National Hospital Insurance Fund as part of the contribution that will qualify for personal relief. This is in spirit with the Big Four agenda that include Universal Health coverage and will act as an incentive towards the health insurance contribution. This is effective starting 1^st January 2022. Tax Losses Carried Forward Indefinitely The Finance Act has amended the period of carrying forward tax losses from a period of 10 years to an indefinite period. This is until a company fully utilizes the losses. This is effective starting 1^st July 2021.

Tax Rebates for employers engaging graduates on apprenticeship programs

The Finance Act has extended the tax rebates to employers who also engage graduates from technical and vocational education and training institutions this is aside from the rebates previously applicable on the University graduates only. This is effective starting 1^st January 2022.

Special Arrangement for Relief from Double Taxation

The Finance Act has replaced Section 41 of the ITA on especial arrangements for relief from double taxation made with the government of contracting state with a view of affording relief from double taxation in relation to income tax and any taxes of similar character imposed by the contracting state shall have effect in relation to income tax and every such agreement shall be subject to provisions of Treaty Making and Ratification Act. Where the income under this section is derived from Kenya and is exempt or the arrangement results in a reduction, it shall not be available to the person who is a resident of the other contracting state if 50% or more of the underlying ownership of the person is held by a person who is not a resident of the other contracting state. This however, shall not apply on listed entities in the other contracting state. This is effective starting 1^st July 2021.

Straight Line basis for Capital Allowance

The Finance Act 2021 provides that the deduction on capital allowance shall be done in equal instalments after the first year of use (straight line basis). This replaces the previous reducing balance method on claiming capital allowance This is effective starting 1^st July 2021.

Investment Allowance to All Electricity Producers

The Finance Act 2021 has redefined manufacture under the Second Schedule by deleting ‘through the national grid’. This means all companies in the business of generating and distributing electricity both off-grip and through the national grid shall qualify for investment allowance. This is effective starting 1^st January 2022.

100% Deduction on Investment

The Finance Act has introduced Investment deduction at 100% where the cumulative investment value in the preceding 3 years of income is at least Kshs 2 Billion. Where the cumulative value of investment for the preceding 3 years of income was Kshs 2 Billion on or before the 25^th April, 2020, and the applicable rate of investment deduction was 150%, the rate shall continue to apply for the investment made on or before the 25^th April, 2020. The Finance Act has re-introduced a 100% Investment Deduction on the investment value outside Nairobi City County and Mombasa County in that year of income that is at least Kshs. 250 Million, In addition, investment deductions at the rate of 100% shall also be applicable on investments in the Special Economic Zones. This is effective starting 1^st January 2022.

Withholding Tax Rates for the Extractive Sector

See the tabulation below;

Description	Rate
Withholding Tax on service fee paid by contractors to non-resident sub-contractor in respect of mining or petroleum operations	10% Effective from 1st July, 2021
Withholding tax on service fee paid by a licensee to a non-resident subcontractor in respect of mining or petroleum operations	10% Effective from 1st July, 2021
Withholding tax on service fee paid by a contractor to a non-resident person in respect of management, training or professional fees.	10% Effective from 1st July, 2021

Tax Procedures Act

The Finance Act, 2021 has introduced the following changes under the Tax Procedures Act

Tax PIN is Mandatory for Digital Transactions

The Finance Act has included KRA Pin as a requirement for supply of goods and services over a digital marketplace or over the internet. This will enable proper administration of Digital Service Tax by the authority.

Tax Assessment Period Increased

The Finance Act 2021 has repealed section 37A of the TPA which initially refrained the Commissioner from assessing or recovering tax in some cases from the tax payers. This implies that the Commissioner will be at liberty to raise assessments to taxpayers within any financial period and recover taxes in form of principal tax, penalties and interest.

Notice of Objection in Electronic Form

The Finance Act provides that where a person who submits a notice of objection in electronic form or a tax return in electronic form, or pays the tax electronically, the due date shall remain the date specified in the relevant tax law.

Introduction of the Common Reporting Standards

The Finance Act 2021 has introduced the common reporting standard obligations for financial institutions in Kenya for automatic exchange of financial account information in tax matters. Financial institution means a custodial institution, a depository institution, an investment entity or a specified insurance company. Kenyan financial institution means;

1. Any financial institution that is resident in Kenya but does not mean any branch of that financial institution that is located outside Kenya; or
2. Any branch of a financial institution that is not 2021 Finance 169 No. 8 resident in Kenya, if that branch is located in Kenya.

Employment Act

Relief on National Health Insurance Fund

The Finance Act 2021 has included contribution to National Hospital Insurance Fund as part of the contribution that will qualify for personal relief. This is in spirit with the Big Four agenda that include Universal Health coverage and will act as an incentive towards the health insurance contribution. This is effective starting 1^st January 2022.

Vat Amendments

Redefinition of VAT on Imported Services

The Finance Act 2021 redefines the supply of imported services as in the case of a registered person would not have been entitled to a full amount of input tax payable if the services had been acquired by the person in taxable supply.

VAT on Digital Supplies

The Finance Act 2021 redefines the digital supplies by stating that VAT shall be applicable to supplies made over internet or an electronic network. Initially, digital supplies made through a digital marketplace were subject to VAT at the rate of 16%. Digital marketplace refers to an online platform that enables the direct interaction between buyers and sellers of goods and services or other properties to other users.

VAT on Imported Goods

The Finance Act has deleted the term registered and states that; If a supply of imported taxable services is made to a person, the person shall be deemed to have made a taxable supply to himself. Initially, if a supply of imported taxable services was made to a registered person, the registered person would be deemed to have made a taxable supply to himself.

Restriction of input tax incurred on hiring, leasing or acquisition of passenger cars or minibuses

Bill Proposal

The Finance act 2021 restricts a registered person from deducting input VAT if the tax relates to the acquisition, leasing or hiring passenger cars or mini buses, and the repair and maintenance, and entertainment, restaurant and accommodation services. Initially, the VAT Act only restricted a registered person from claiming input VAT if the tax related to the acquisition of passenger cars or minibuses, and the repair and maintenance, and entertainment, restaurant and accommodation services.

Exempt to Vatable Supplies

The Finance Act has deleted Disposable plastic syringes of tariff No. 9018.31.10 from being exempt supply The Finance Act has also deleted other syringes with or without needles of tariff No. 9018.31.90 from being exempt supply. This is effective starting 1^st July 2021.

Supplies from general rate to exempt

The Finance Act has added the following items to the exempted supply

Tarriff	Description	Previous Rate	Current Status
2106.10.00	Protein concentrates and textured protein substances	16%	Exempt
2106.90.10	Food preparations specially prepared for infants	16%	Exempt
2106.90.99	Other-Food preparations not elsewhere specified or included	16%	Exempt
2936.27.00	Vitamin C and its derivatives	16%	Exempt
3001.90.00	Other- Heparin and its salt	16%	Exempt
3001.90.00	Other- Other human or animal substances prepared for therapeutic or prophylactic uses, not elsewhere specified or included.	16%	Exempt
3002.11.00	Malaria diagnostic test kits	16%	Exempt
3002.12.00	Antisera and other blood fractions	16%	Exempt
3002.13.00	Immunological products unmixed, not put up in measured doses or in forms or packings for retail sale	16%	Exempt
3002.14.00	Immunological products mixed, not put up in measured doses or in forms or packings for retail sale	16%	Exempt
3002.15.00	Immunological products put up in measured doses or in forms or packings for retail sale	16%	Exempt
3002.19.00	Other- Antisera, other blood fractions and immunological products whether or not modified or obtained by means of biotechnological process	16%	Exempt
3003.31.00	Insulin	16%	Exempt
3004.43.00	Other medicaments, containing alkaloid or derivatives containing norephedrine or its salt.	16%	Exempt
3004.60.00	Other containing antimalarial active principles described in subheading Note2	16%	Exempt
2106.90.91	Food supplements	16%	Exempt
0402.21.00	Milk in powder, granules or other solid forms, of a fat content, by weight, exceeding 1.5%, not containing added sugar or other sweetening matter	16%	Exempt
0402.29.00	Other milk in powder, granules or other solid forms, of a fat content, by weight, exceeding 1.5%, not containing added sugar or other sweetening matter	16%	Exempt
0402.91.00	Other not containing added sugar or other sweetening matter	16%	Exempt
0402.99.00	Other milk	16%	Exempt
9021.10.00	Orthopedic or fracture appliances	16%	Exempt
9021.50.00	Other artificial parts of the body; Pacemakers for stimulating heart muscles, excluding parts and accessories.	16%	Exempt
9025.19.00	Hydrometers and similar floating instruments, thermometers, pyrometers, barometers, hygrometers, and psychrometers, recording or not and any combination of these instruments, thermometers, pyrometers, not combined with other instruments;	16%	Exempt
9019.20.00	Airway Guedel and Ambu bags	16%	Exempt
9018.90.00	Blood giving set and infusion sets	16%	Exempt

From Exempt to general rated (16%)

The Finance Act has added the following goods from exempt to Vatable at 16%.

Description	Previous rate	Current rate
3920.10.10 Plain polythene film/PE	Exempt	16%
4803.00.00 Airlid paper without super absorbent polymer 80gsm/67 of tariff number	Exempt	16%
4803.00.00 Airlid paper without super absorbent polymer 80gsm/67 of tariff number	Exempt	16%
4810.99.00 PE white 25-40gsm/release paper	Exempt	16%
5603.11.00 12-16 gsm spun bound piyropo nonwoven cover stock /15gsm spun bound PP non-woven SMS hydrophobic leg cuff	Exempt	16%

Reintroduction of exemption of VAT on renewable energy and extractive sector

The Finance act 2021 has reintroduced exemptions on the following supplies that were initially Vatable.

• Taxable goods, excluding motor vehicles, imported or purchased for direct and exclusive use in geothermal, oil or mining prospecting or exploration by a company granted a prospecting or exploration license upon recommendation by the Cabinet Secretary responsible for matters relating to energy, petroleum or mining, as case may be.
• Specialized equipment for the development and generation of solar and wind energy, including photovoltaic modules, direct current charge controllers, direct current inverters and deep cycle batteries that use or store solar power, upon recommendation of the Cabinet Secretary responsible for matters relating to energy

Medical equipment exempted from VAT 

The Finance Act has added the following medical equipment’s to be exempt supplies.

• Medical ventilators and the inputs for the manufacture of medical ventilators
• Physiotherapy accessories, treadmills for cardiology therapy and treatment of tariff number 9506.91.00 for use by licensed hospitals
• Dexpathenol of tariff number 3304.99.00 used for medical nappy rash treatment by licensed hospitals
• Medicaments of tariff number 3304.41.00, 3003.42.00, 3033.43.00, 3003.49.00, 3003.60.00 (excluding goods of heading 30.02, 30.05 or 30.06) consisting of two or more constituents which have been mixed together for therapeutic or prophylactic uses
• Diagnostic or laboratory reagents of tariff number 3822.00.00 on a backing, prepared diagnostic or laboratory reagents whether or not on a backing, other than those of heading 30.02 or 30.06, certified reference materials
• Electro-diagnostic apparatus of tariff numbers 9018.11.00, 9018.12.00, 9018.13.00, 9018.14.00, 9018.19.00, 9018.20.00, 9018.90.00
• Other instruments and appliances of tariff number 9018.41.00 used in dental sciences, dental drill engines, whether or not combined on a single base with other dental equipment
• Other instrument’s and appliances including surgical blades of tariff number 9018.49.00, 9018.50.00, 9018.90.00 used in dental science
• Ozone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus
• Other breathing appliances and gas masks, excluding protective masks having neither mechanical parts nor replaceable filters
• Artificial teeth and dental fittings of tariff numbers 9021.21.00, 9021.29.00 and artificial parts of the body of tariff numbers 9021.30.00, 9021.39.00, 9021.50.00 and 9021.90.00
• Apparatus based on the use of x-rays whether or not for medical, surgical or dental of tariff number 9022.12.00, 9022.13.00,9022.14.00 and 9022.19.00
• Apparatus based on the use of alpha, beta of gamma radiations, whether or not for medical, surgical or dental of tariff number 9022.21.00, 9022.29.00, 9022.30.00 and 9022.90.00
• Discs, tapes, solid-state non-volatile storage devices, “smart cards” and other media for recording of sound or of other phenomena whether or not recorded of tariff number 8523.80.10, including matrices and masters for the production of discs but excluding products of Chapter 37; software
• Weighing machine (excluding balances of a sensitivity of 5 centigrams or better) of tariff number 8423.31.00, including weight operated counting or checking machines; weighing machine weights of all kinds
• Fetal Doppler-pocket (Wdg-002) Pc and pulse oximeter-finger held (Gima brand) Pc of tariff number 9018.19.00
• Sterilizer Dry Heat (Wdg-001-Grx-05A) Pc, autoclave steam tabletops of tariff number 8419.20.00
• Tourniquets of tariff number 3926.90.99 for use by licensed hospitals

Change of VAT status from general rated to exempt for taxable goods supplied to persons that had an agreement or contract with the Government.

The Finance Act 2021 has introduced a clause under paragraph 114 to allow VAT exemption to taxable goods supplied to person goods supplied to persons that had an agreement with the Government prior to 25^th April 2020 and the agreement or contract provided for exemption from VAT – provided that this exemption shall apply to the unexpired period of the contract or agreement and upon recommendation by the Cabinet Secretary responsible for matters relating to energy.

The exportation of taxable services to be exempt from VAT

The Finance Act has removed exported services from zero rated to VAT exempt. Both companies and individuals involved in the exportation of services from Kenya will not be eligible to claim any input VAT.

Exemption of Transfer of assets and other related transactions into real estate investment trusts (REITS)

The Finance Act has exempted from VAT the transfer of assets and other transactions related to the transfer of assets into real estate investment trusts and asset-backed securities. Initially, this exemption had been revoked through the Tax Amendment Act, 2020.

Zero Rates Supplies

The Finance Act has introduced the following items under the Second Schedule;

• The transportation of goods originating from Kenya to a place outside Kenya.
• Transportation of sugarcane from farms to milling factories.
• The supply of maize (corn) flour, cassava flour, wheat or meslin flour and maize flour containing cassava flour by more than ten percent in weight.

Excise Tax

The Finance Act 2021 has brought a number of changes to the Excise Act 2015. Some of the changes introduced include reintroduction of excise duty tax on betting and gaming among others that are discussed below.

Introduction of new definitions

The Finance Act 2021 has introduced the following definitions to the Excise Duty Act

The definition of Compound

The term “compound” has the meaning assigned to it in section 2 of the Compounding of Potable Spirits Act, which defines the word compound’ to mean to communicate any flavor to, or to mix any ingredient or material with, spirits, but not so as to denature the spirits.

The definition of possession

The Finance Act 2021 defines the word ‘Possession’ as having, owning or controlling any excisable goods including-

1. having in one’s possession any excisable goods;
2. knowingly having any excisable goods in the actual possession or custody of any other person;
3. having any excisable goods in any place, whether belonging to or occupied by oneself or not, for the use or benefit of oneself: or
4. having any excisable goods for the use or benefit of another person:

Provided that if there are two or more persons and any of them with the knowledge or consent of the others has any excisable goods in his custody or possession. Such goods shall be deemed to be in the custody and possession of all of them. We still retain our submissions that there is need for the regulations to be elaborate in the definitions stipulating the person liable to account for excise duty on excisable goods still remains as defined under Section 5(3) of the Excise Duty Act those who are: the licensed manufacturer of excisable goods, the licensed person making the supply of excisable goods or an importer of excisable goods.

Fees or commission earned in respect of a loan to be subject to excise duty

The Finance Act has amended the definition of “other fees” by deleting the words “fees or commission earned in respect of a loan”. Currently, other fees charged by financial institutions is subject to excise duty at the rate of 20%. The Excise Duty Act also defines “other fees” to include – “any fees, charges or commissions charged by financial institutions relating to their licensed activities, but does not include interest on loan or return on loan or fees or commissions earned in respect of a loan or any share of profit or an insurance premium or premium based or related commissions specified in the Insurance Act or regulations made thereunder.” The Act further provides. Given the past practice, the definition of other fees has been a bone of dispute between taxpayers and the Kenya Revenue Authority especially in determining whether excise duty should be applicable to the fees related to loans. It is clear that ‘fees or commissions earned in respect of a loan’ will not be excluded from the definition of other fees. This will be subject to excise duty at the rate of 20%.  

Offsetting of excise duty paid on internet data services purchased for resale

                                                 The Finance Act has amended Section 14 of the Excise Duty Act to allow offsetting excise duty incurred by a licensed person on purchase of bulk internet data services for resale against excise duty payable by the person on supplying the internet data services to the final consumer. Previously, licensed excise businesses have only been allowed to offset excise duty paid on raw materials (both imported into Kenya and locally manufactured) from excise duty payable on the corresponding finished goods. No excise duty deduction is allowed to a supplier of internet data services who purchases internet data in bulk for resale.

Excise Duty tax on Sugar confectionary and chocolate manufactured locally

The Finance act has deleted the word ‘imported’ from the current provision in relation to sugar confectionary and white chocolate, chocolate in bloc, slabs or bars. This means that both imported and locally manufactured sugar confectionary of tariff 17.04 and chocolate of the stated tariff numbers are subject to excise duty.

Exemption of glass bottles to excise duty

The Finance Act 2021 has excluded importation of glass bottles from excise duty. Previously , excise duty was applicable on imported glass at the rate of 25%.

Reintroduction of excise duty on betting, gaming, lottery & price competition activities

The Finance Act has reintroduced excise duty on betting, gaming, lottery and price completion activities at the rate of 7.5% of the amount wagered or staked.

Conclusion

This alert addresses the key highlights of the Finance Act 2021. It comes at a time when the government is trying to recover from the effect of covid-19 pandemic and rebuild the economy. Some of the amendments bring the desired clarity as the government tries to streamline the tax administration for ease of tax collection and recovery. We urge the taxpayers to be proactive and put in necessary structures to help manage the changes as well as remain compliant. Disclaimer   This Tax Alert is meant for public knowledge only and we do not recommend any usage of it. Should you require any professional advice or any inquiry, kindly get in touch with our experts on tax@ronalds.co.ke or peterm@ronalds.