The High Court sitting in Nairobi has upheld the judgment of the Tax Appeals Tribunal (TAT) delivered on 8th December 2016 to the effect that taxes amounting to Kshs. 1,654,846,603 was due and payable by the taxpayer.

Following reports from Parliament that the taxpayer was dealing in smuggled gold, the Commissioner carried out investigations into the affairs of the taxpayer for the years 2010-2011 and established that the taxpayer, Ushindi Limited (formerly Ushindi Exporters Limited), had made exports of gold worth Kshs. 2,595,3838,877 in 2010 and Kshs. 2,940,001,820 in 2011.

When requested for documents to support its transactions, it was the taxpayer’s position that it carried out its transactions predominantly in cash. Further, the taxpayer alleged that most of the gold was purchased from artisan miners who normally did not give their personal details nor tax invoices.

It was also the taxpayer’s contention that it maintained records in accordance with the Trading in Unwrought Precious Metals Act (Cap 309 of the Laws of Kenya) which only required details limited to; the date of transaction, nature and weight of precious metal and price if any. There was, in its view, no requirement to give names or identities of the sellers based on an alleged correspondence from the then Ministry of Environment and Mineral Resources (hereinafter ‘the Ministry’).

In the circumstances, the Commissioner relying on the provisions of Section 54A of the Income Tax Act disallowed the costs claimed by the taxpayer on account of its failure to furnish it with documents requested. It was the Commissioner’s view that the taxpayer had failed to provide documents sufficient for computation of tax.

As regards the directive from the Ministry, the Court while appreciating the discretion under 9, 10 and 11 of the Mining Act, placed reliance on a the letter by the then Minister for Mining confirming that the Law did not provide a waiver of the requirement to keep a register of transactions.

As such the court held that the Ministry went beyond its powers to allow dealers to transact without keeping the requisite records. It was thus the court’s view that the taxpayer had failed to comply with obligations set out in Section 11 of the Trading in Unwrought Precious Metals Act as well as Section 54A of the Income Tax Act. Further, the court upheld the TAT observation that by not disclosing the names of the suppliers then the taxpayer was shielding the fraudsters from being assessed to tax.

Consequently, the Court upheld the Commissioner’s position (and indeed the ruling by the Tax Appeals Tribunal) that in view of the taxpayer’s failure to furnish the Commissioner with the documents requested, it could not purport to claim costs under Section 15 of the Income Tax Act. It was upon the taxpayer to prove that the tax assessed had been wrongfully imposed and it failed to do so.

Commissioner, Investigation and Enforcement Department- David Yego