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The Tax Procedures (Tax Agents) Regulations

Legal Notice 111 of 2020

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The Tax Procedures (Tax Agents) Regulations
Citation
Legal Notice 111 of 2020
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Tax Procedures Act
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English
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Legal Notice
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LAWS OF KENYA

TAX PROCEDURES ACT

THE TAX PROCEDURES (TAX AGENTS) REGULATIONS

LEGAL NOTICE 111 OF 2020

  • Published in Kenya Gazette Vol. CXXII—No. 126 on 3 July 2020
  • Commenced on 24 June 2020
  1. [Revised by 24th Annual Supplement (Legal Notice 221 of 2023) on 31 December 2022]

1. Citation

These Regulations may be cited as the Tax Procedures (Tax Agents) Regulations.

2. Interpretation

In these Regulations, unless the context otherwise requires—"Committee" means the Tax Agents Committee established under regulation 7;"misconduct" includes making false tax declarations, aiding and abetting tax evasion, and any conduct that is prohibited by any tax law;"person" includes an individual and a partnership;"practicing certificate" means a certificate issued to a person by a recognised professional association which permits that person to practice that profession;"registration certificate" means the certificate issued by the Commissioner under regulation 5;"tax agent" means a person registered by the Commissioner as a tax agent under regulation 5; and"Tribunal" means the Tax Appeals Tribunal established under the Tax Appeals Tribunal Act (Cap. 469A).

3. Registration of tax agents

(1)A person who wishes to act as a tax agent shall apply in writing to the Commissioner for registration.
(2)An application under paragraph (1) shall be accompanied by a non-refundable fee of twenty thousand shillings.
(3)The Commissioner may register a person as a tax agent if that person is fit and proper and—
(a)is a member of the Institute of Certified Public Accountants of Kenya and with at least three years’ experience;
(b)is an advocate of the High Court of Kenya, holds a current practicing certificate and with at least three years’ experience;
(c)is a former tax administrator with at least ten years’ experience in tax administration; or
(d)holds any other relevant qualifications and possesses experience recognised by the Commissioner as sufficient for a tax agent.
(4)This regulation shall not apply to a non-resident person who is temporarily in Kenya for the sole purpose of representing a client on tax matters.

4. Determination whether a person is fit and proper

In determining whether a person is fit and proper to be registered as a tax agent under regulation 3, the Tax Agents Committee shall consider—
(a)whether the person is tax compliant;
(b)the person’s probity, competence and soundness of judgment in fulfilling the responsibilities of a tax agent;
(c)whether the person has ever been involved in financial irregularities including misappropriation of funds or manipulation of tax transactions;
(d)whether the person has ever been convicted of an offence involving fraud; or
(e)whether the person has been convicted of any tax offence under a tax law or an anti-corruption law.

5. Licensing of tax agents

(1)Where an applicant has satisfied the requirements of regulations 3 and 4, the Commissioner shall issue the applicant with a registration certificate.
(2)The registration certificate issued under paragraph (1) shall be deemed to be the tax agent’s licence for purposes of section 20.
(3)Where an application for registration as a tax agent is rejected, the Commissioner shall specify the reasons for the rejection in writing.

6. Functions of tax agents

(1)The functions of a tax agent shall be to—
(a)prepare and submit tax returns on behalf of a taxpayer;
(b)liaise with the Commissioner on behalf of a taxpayer on matters relating to tax; or
(c)advise and represent a taxpayer in tax matters before the Tribunal.
(2)An advocate of the High Court of Kenya acting in the ordinary course of the advocate’s profession shall not be required to register as a tax agent to perform the functions under paragraph (1)(b) and (c).

7. Register of tax agents

(1)The Commissioner shall maintain a register of licensed tax agents.
(2)The register shall contain—
(a)the names of tax agents;
(b)the qualifications of the tax agents;
(c)the principal address of business of the tax agents and any other place where the tax agents may operate from; and
(d)such other information as the Commissioner may specify.
(3)A tax agent shall notify the Commissioner of any change of particulars in the register within fourteen days of such change.

8. Register of clients

A tax agent shall maintain a register containing the following details—
(a)the names of the tax agent’s clients;
(b)the date of engagement as a tax agent by each client;
(c)the physical addresses, postal addresses and any other contact information of each client;
(d)information relating to the nature of the business that each client is engaged in; and
(e)such other particulars as the Commissioner may specify.

9. Tax Agents’ Committee

(1)The Cabinet Secretary shall, by notice in the Gazette, appoint a Tax Agents’ Committee.
(2)The Committee shall comprise of—
(a)a chairperson who shall be from the private sector, have at least fifteen years’ relevant experience, and hold a degree in taxation, finance, accounting, economics or law from a university recognised in Kenya;
(b)a representative of the Institute of Certified Public Accountants of Kenya;
(c)a representative of the Law Society of Kenya; and
(d)four other persons who have at least ten years’ relevant experience and hold a degree in taxation, finance, accounting, economics or law from a recognized university.
(3)The Commissioner shall appoint a secretary to the Committee from the staff of the Authority.

10. Tenure of members of Committee

(1)The chairperson or a member of the Committee shall hold office—
(a)in case of the Chairperson, for a term not exceeding five years and shall not be eligible for re-appointment; and
(b)in case of a member, for a term not exceeding three years but may be eligible for re-appointment for one final term not exceeding three years.
(2)The office of the chairperson or a member of the Committee shall become vacant if the holder—
(a)resigns by notice in writing to the Cabinet Secretary;
(b)is convicted of a criminal offence;
(c)is declared bankrupt by a court of competent jurisdiction;
(d)fails to attend three consecutive meetings without notice to the chairperson or, in case of the chairperson, to the Commissioner;
(e)is unable to perform the functions of the office by reason of prolonged illness; or
(f)is otherwise unable or unfit to discharge the functions of the office.

11. Conduct of business

(1)The Chairperson shall preside at every meeting of the Committee and in the absence of the Chairperson, the members present shall appoint one of them to preside over the meeting.
(2)The quorum for a meeting of the Committee shall be five members.
(3)The members of the Committee shall be paid such remuneration as the Cabinet Secretary may, in consultation with Salaries and Remuneration Commission, determine.

12. Functions of the Committee

The Tax Agents Committee shall—
(a)consider applications for registration of tax agents and recommend to the Commissioner whether or not an application should be granted or rejected; and
(b)where any allegation of misconduct is made against a tax agent, carry out investigations and make recommendations to the Commissioner regarding the action to be taken with respect to the allegation.

13. Investigation of allegations of misconduct

(1)A complaint of misconduct against a tax agent shall be referred by the Commissioner to the Committee for investigation.
(2)The Committee may, in the course of its investigations under paragraph (1), hear any witnesses and receive any documents that will assist it in the investigation.
(3)Before the Committee makes a decision on an allegation against a tax agent, it shall grant the tax agent an opportunity to be heard, call witnesses and present evidence before the Committee.
(4)The Committee shall not, later than seven days after the conclusion of the investigation, submit a report to the Commissioner recommending that the Commissioner—
(a)clears the tax agent of the allegations;
(b)cautions, warns or reprimands the tax agent;
(c)suspends the registration of the tax agent;
(d)deregisters the tax agent; or
(e)take such other action that may be appropriate in the circumstances.
(5)The Commissioner shall, within fourteen days of receiving the report of the Committee, take action as recommended under paragraph (4).
(6)Where the Commissioner takes action under paragraph (4) (c) or (d) against a tax agent who is a member of a recognised professional association, the Commissioner shall notify the association of the allegations against the tax agent and the action taken thereof.

14. Offences

(1)A person commits an offence if that person—
(a)fraudulently makes, or causes or permits to be made, any false or incorrect entry into a register maintained for the purposes of these Regulations;
(b)fraudulently procures or attempts to procure registration as a tax agent;
(c)fraudulently makes any statement which is false or misleading with a view to gaining any advantage, concession or privilege under these Regulations;
(d)purports to operate as a tax agent without being registered; or
(e)contravenes any provision of these Regulations.
(2)Where a person commits an offence under these Regulations, the relevant sanctions under the Act shall apply.

15. Transitional provisions

Any person who was registered as a tax agent by the Commissioner before the coming to force of these Regulations shall be deemed to have been registered as a tax agent under these Regulations.
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History of this document

31 December 2022 this version
03 July 2020
Read this version
24 June 2020
Commenced