The Tax Appeal Tribunal has endorsed tax liability assessments based on dividend payouts by corporates. This decision would embolden the Kenya Revenue Authority (KRA) to pursue corporates that distribute earnings to shareholders while paying little or no corporate income tax.
In a ruling involving Kenya Electricity Generating Company (KenGen), the tribunal upheld a Sh2.36 billion compensating tax assessment after finding that the power producer failed to demonstrate that dividends paid to shareholders, including the government, originated from profits already subject to tax.
The decision arose from a dispute over KRA’s review of KenGen’s tax affairs for the period between 2019 and 2024.
According to the tribunal, that finding was sufficient to require KenGen to explain the source of the dividends.
“KRA identified a gap that the appellant was required to explain,” the tribunal said. “Against that background, the burden shifted to the appellant to demonstrate, with sufficient evidence, that the dividends were sourced from gains or profits on which tax had already been paid.”
KRA had initially issued an assessment on December 4, 2024, demanding Sh2.95 billion comprising compensating tax of Sh2.36 billion and withholding tax of Sh586.2 million. However, following alternative dispute resolution proceedings, the withholding tax component was dropped, leaving only the compensating tax assessment for determination.
KRA argued that although KenGen paid taxes on rental income, interest income and other miscellaneous income, it paid no tax on its principal business income because of substantial capital allowance claims.
The tribunal noted that KRA had demonstrated that taxed non-business income amounted to about Sh3.3 billion, which was less than half the Sh6.92 billion distributed as dividends during the review period. KRA therefore maintained that the company was liable to compensating tax under Section 7A of the Income Tax Act.
This section governs the taxation on dividends distributed out of untaxed gains or profits. It requires companies that distribute dividends from profits that have not been subjected to corporate tax to pay tax on those specific distributed amounts.
KenGen challenged the assessment, insisting that it had not distributed dividends from untaxed profits. The company argued that its operations generated tax losses and therefore no taxable gains capable of attracting compensating tax.
It relied on tax computations showing business losses of Sh37.5 billion in 2018/2019, Sh34.16 billion in 2019/2020, Sh19.76 billion in 2020/2021 and Sh32.89 billion in 2021/2022.
The company further argued that it had fully paid taxes on rental, interest and miscellaneous income and therefore had no untaxed gains or profits.
KenGen also pointed to its accumulated retained earnings, saying the dividends were funded from reserves built over many years.
It told the tribunal that retained earnings stood at Sh86.6 billion in 2019 and had increased to Sh113.19 billion by 2023, comfortably exceeding the Sh6.9 billion distributed to shareholders during the period under review.
But the tribunal found that explanation insufficient. It observed that KenGen is a capital-intensive utility whose balance sheet is dominated by property, plant and equipment accumulated over decades through equity and debt financing.
“The appellant did not present a cash flow analysis identifying the specific sources of the cash used to pay the dividends, nor did it link those cash flows to taxed reserves. The appellant provided no explanation for this gap.”
The tribunal noted that KRA had specifically requested audited accounts showing the source of funds used to pay dividends as well as a breakdown of taxed and untaxed income streams that contributed to the distributions. However, KenGen failed to provide an analysis showing the composition of retained earnings or identifying which reserves funded the dividend payments.
“The Tribunal finds that the appellant did not discharge its burden under Section 56(1) of the TPA. The evidence presented was insufficient to establish, by a cogent and sufficiently particularised analysis, that the dividends distributed were sourced from gains or profits on which tax had already been paid,” the tribunal ruled.
The tribunal further rejected KenGen’s contention that its tax-loss position automatically shielded it from compensating tax.
It observed that although the company reported tax losses, it continued to generate substantial revenues from electricity sales that exceeded operating costs. The gains, the tribunal said, were effectively shielded from corporation tax through capital allowance deductions.
“In the Tribunal’s considered view, a company that is in a tax loss position solely by reason of capital allowance claims, while generating real economic revenues that substantially exceed its operating costs, cannot automatically, and without more, be said to have no gains or profits for Section 7A purposes,” the tribunal stated.
The ruling also upheld KRA’s use of a reconstruction methodology, including a gross-up formula, to determine the gains from which the dividends were paid.
Although the approach is not expressly provided for under current tax law, the tribunal found that KRA was entitled to adopt the method after KenGen failed to provide records that would have enabled a more precise calculation.
The decision is likely to strengthen KRA’s position in pursuing compensating tax assessments where companies distribute dividends despite having little or no corporation tax liability, particularly where taxpayers cannot clearly demonstrate that the distributions originated from profits that had already been taxed.