The Finance Act, 2021 (the Act) was signed into law by the President on 29 June 2021 and thereafter gazetted on 1 July 2021. The Act has introduced a number of changes that will align Kenya with international best practices such as introduction of Country by Country Reporting for Multi National Enterprises (MNEs) as well as the introduction of more stringent regulations on thin capitalization. The Act has also introduced a number of changes designed to enhance the tax base by getting more transactions into the ambit of taxation and increasing the tax on other transactions. It is also clear from the changes to the scope of digital services tax, that the government sees this as a potential area for revenue growth. Some of the enactments appear to be reactions by the Kenya Revenue Authority (KRA) to the recent spate of disputes that it has lost at the Tax Appeals Tribunal and the High Court. One example is the taxation of export of services which has been litigated in a number of cases and has now been amended to deny taxpayers refund of input VAT. There are notable provisions that have been enacted to cushion Kenyans from the harsh effects of the pandemic on the economy. Some of the provisions include the removal of the 10 year limit for the utilization of tax losses. Additionally, the Act now allows the Commissioner to refrain from assessing or recovering unpaid tax from a taxpayer where there is any other reason occasioning inability to recover the unpaid tax. The COVID-19 pandemic has impacted the Government’s ability to meet its expenditure requirements amid pressure for additional resources to service the current debt load. This informs the additional tax revenue mobilization measures contained in the Act, to finance the ambitious FY 2021/22 budget of KES 3.6 trillion.
