By Kavosa Assava, LLB
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Corporate Income Tax is at 30%
·
Net profit is the profit
after all the deductibles or allowable expenses have already been deducted and disallowables have been accounted
for; Gross profit is the profit when
the deductibles have not yet been
deducted.
·
Net Profit= Gross
Profit – Expenses
·
Gross Profit=
Sales – Cost of Sales
Allowable business
expenses are expenses related to business activity that are deductible for tax purposes
from the gross profit/revenue. S. 15
·
The general rule is that all expenses incurred in a business are
deductible except for Capital expenses. S. 15 has provided for some
exceptions to this rule which qualify certain capital expenses as allowables or
deductible expenses.
·
S. 15 ITA; (1) Subject to
section 16, for the purpose of ascertaining the total income of a person for a
year of income there shall be deducted all expenditure incurred in that year of
income. This is expenditure wholly and exclusively incurred in the production
of that income.
Under section 27 any income of an accounting period
ending on some day other than the last day of that year of income is taken to
be income for a year of income. The expenditure incurred during that period
shall be treated as having been incurred during that year of income.
(2) In computing for a year of income the gains or
profits chargeable to tax under section 3(2) (a), the following amounts shall
be deducted-
§ bad debts incurred in the production of those gains
or profits, and doubtful debts so
incurred to the extent that they are estimated to have become bad. [ provisions
for bad debts are disallowable]
§ amounts to be
deducted under the Second Schedule
§ amounts to be
deducted under the Ninth Schedule
§ expenditure of a
capital nature incurred by the owner or occupier of farm land for the
prevention of soil erosion;
§ expenditure of a
capital nature incurred on legal costs
and stamp duties in connection with the
acquisition of a lease, of premises used or to be used by him for the
purposes of his business;
§ expenditure
incurred in connection with a business before
the date of commencement of that business where the expenditure would have
been deductible under this section if incurred after that date; that the
expenditure shall be deemed to have been incurred on the date on which that
business commenced;
§ any sums expended
for structural alterations to the
premises where the expenditure is necessary to
maintain the existing rent; but no deduction shall be made for the cost of
an extension to, or replacement of, those premises;
§ the amount
considered to be just and reasonable as representing the diminution in value of any implement, utensil or similar article,
not being machinery or plant in respect of which a deduction may be made under
the Second Schedule, employed in the production of gains or profits;
§ An entrance fee or
annual subscription paid to a trade
association which has made an election under section 21(2);
§ in the case of
gains or profits of the owner of land from the sale of or the grant of the
right to fell, standing timber which was growing on the land at the time the
owner acquired the land–
·
where the land was acquired for valuable
consideration, so much of the consideration as the Commissioner may determine
to be just and reasonable as representing the cost of the standing timber; or
·
where no valuable consideration was given for the
land, so much of that amount as the Commissioner may determine to be just and
reasonable as representing the value of the standing timber at the time the
owner acquired the land as is attributable to the timber sold during that year
of income;
§ in the case of
gains or profits from the sale of standing timber by a person who has purchased
the right to fell that timber, so much of the price paid for that right as the
Commissioner may determine to be just and reasonable as attributable to the
timber sold during that year of income;
§ expenditure of a
capital nature incurred by the owner or tenant of agricultural land, as defined
in the Second Schedule, on clearing that land, or on clearing and planting
thereon permanent or semi-permanent crops;
§ expenditure
incurred by a person for the purposes of a business carried on by him being –
·
expenditure of a capital nature on scientific research;
or
·
expenditure not of a capital nature on scientific
research; or
·
a sum paid to a scientific research association
approved for the purposes of this paragraph by the Commissioner as being an
association which has as its object the undertaking of scientific research
related to the class of business to which the, business belongs; or
·
a sum paid to a university, college, research
institute or other similar institution approved for the purposes of this
paragraph by the Commissioner for the scientific research mentioned in
subparagraph (iii);
§ any sum contributed by an employer to a national
provident fund or other retirement benefits scheme established for
employees throughout Kenya by the provisions of any written law;
§ expenditure on advertising in connection with a
business; and for this purpose
"expenditure on advertising" includes expenditure intended to
advertise or promote, whether directly or indirectly, the sale of the goods or
services provided by that business;
§ an amount equal to
one-third of the total gains and profits
from employment of an individual who is not a citizen of Kenya and
·
whose employer is a non-resident company or
partnership trading for profit;
·
who is in Kenya solely for the performance of his
duties in relation to his employer's regional office;
·
who is absent from Kenya for the performance of those
duties for a period or periods amounting in the aggregate to one hundred and
twenty days or more in that year of income; and
·
whose gains and profits from that employment are not
deductible in ascertaining the total income chargeable to tax under this Act of
his employer or of any company or partnership which controls, or is controlled
by, that employer; and in this subparagraph "control" has the meaning
assigned to it in paragraph 32 of the Second Schedule.
§ Expenditure of a
capital nature on legal costs and other
incidental expenses relating to authorisation and issue of shares, debentures
or similar securities offered for purchase by the general public
§ Expenditure of a
capital nature incurred on legal costs
and other incidental expenses, for the purposes of listing on any securities
exchange operating in Kenya, without raising additional capital.
§ Expenditure
incurred by the lessee in the case of a lease
or similar transaction as determined in accordance with such rules as may be
prescribed under this Act;
§ Expenditure of a
capital nature incurred on rating for the purposes of listing on any securities exchange operating in Kenya.
§ Club subscription paid by an employer on behalf of an
employee;
§ Any cash donation to a charitable organization
registered or exempt from registration under the Societies Act or the Non-
Governmental Organizations Co-ordination Act, 1990, and whose income is exempt
from tax under paragraph 10 of the First Schedule to this Act, or to any
project approved by the Minister for Finance;
§ Expenditure of a
capital nature incurred, with the prior approval of the Minister, on the construction of a public school, hospital,
road or any similar kind of social infrastructure;
§ Expenditure of a
capital nature incurred in the purchase
or acquisition of an indefeasible right to use a fibre optic cable by a
telecommunication operator provided the amount of deduction shall be limited to
five per cent per annum.
Disallowables are expenses which
had been deducted when they should not have
been deducted. Disallowable business expenses are unrelated expenses incurred
by a business and must be added back to the net profit to be taxed.
·
Depreciation; when it is calculated by the business owner,
it is added back as a disallowable then wear and tear is calculated as per the
Act and deducted later. Depreciation has not yet been computed or dealt with in
GP. When given the GP, you have to calculate depreciation.
Wear and tear is a deductible;
it is calculated based on the second schedule; each item’s wear and tear is
computed then those values are added together and finally deducted from the
profits.
·
Second Schedule S.
7: (1) Subject to this Part, where, during a year
of income, machinery owned by a person is used by him for the purposes of his
business, there shall be made in computing his gains or profits for that year
of income a deduction (in this Part referred to as a "wear and tear
deduction").
(2) The amount of the
wear and tear deduction for a year of income shall be the appropriate
percentage of the written down value
at the end of that year, before making the deduction, of the machinery
classified as follows –
(a)
tractors, combine
harvesters, heavy earth-moving equipment and such other heavy self-propelling
machines of a similar nature
(b) other self-propelling vehicles, including aircraft
(c) All other machinery, including ships;
§ and the
appropriate percentage shall be 371/2 per cent for class (a), 25 per cent for
class (b) and 121/2 per cent for class (c).
(3) For machinery
purchased on or after 1st January 1992, the amount of wear and tear deduction
for a year of income shall be the appropriate percentage of the written down
value at the end of that year before making that deduction, of the machinery
classified as follows
(a) tractors, combine harvesters, heavy earth-moving
equipment and such other heavy self-propelling machines of a similar nature
(b) computers and peripheral computer hardware,
calculators, copiers and duplicating machines;
(c) all other self-propelling vehicles including
aircraft; (cc) petroleum pipeline; (d) all other machinery, including ships;
§ and the
appropriate percentage shall be 37.5 per cent for the class of machinery in subparagraph (a), 30 percent for
the class of machinery in subparagraph (b), 25 percent for the class of
machinery in subparagraph (c) and 12.5 percent for the class of machinery in
(d);
·
Bad debts are deductible/allowable
but doubtful debts are not deductible.
·
Salaries and wages
and other staff
related costs are deductible/allowable
·
Interest on a bank
loan is deductible/
allowable.
·
A vehicle/machinery
bought for a business, then sold at a
loss is deductible therefore an allowable expense. If a profit is made at sale, the profit is taxable, therefore not deductible and
consequently a disallowable.
·
Renovations [s. 15 (f)] are
not deductible therefore disallowable. Repairs
are allowable.
·
Contingencies are not a real
expense therefore it is not deductible.
·
Subscriptions are allowable but donations are not allowable
[disallowable]. Donations are
allowable only and deductible only where it is made to/by a charitable or
religious or educational institutions THAT hold an exemption certificate.
·
You need to pay taxes on profits before you can pay dividends; Therefore, they must be
subjected to tax and cannot be deducted; they are a disallowable.
·
The withholding
tax is deducted from the total tax to be paid; it is considered as a prepayment.
·
Section 16 ITA; Income Tax is
not deductible unless it is income made outside Kenya
·
Double taxation
agreement:
Where there is a double taxation agreement, the rate
of foreign tax is calculated and deducted from the Kenyan tax rate [the tax you
would have paid in Kenya on the same amount]. This is known as giving a credit;
Where there is no double taxation agreement, the rate
of the foreign tax is deducted from the revenue you earned and the difference
is then taxed in the Kenyan jurisdiction. This is known as treating the foreign
tax like an expense.
·
Education fees for employees or
their dependents is not deductible for corporate income tax but is deductable
for income tax.
·
Income tax is not an expense
incurred in carrying out business activities and therefore it is not
deductible.
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Thin Capitalization Rule:
·
Withholding tax is usually charged on the gross
income/profit
Example
Mhasibu Company Limited, a marketing
agency made a net profit of KES 4,850,000 for the year 2013. The following
expenses relate to the business for that year of income:
Expenses
|
KES
|
General
administrative expenses (allowable)
|
800,000
|
Director’s fees
and expenses (allowable)
|
100,000
|
Repairs and
renewals
|
160,000
|
Subscriptions
and donations
|
40,000
|
Bad debts
(allowable)
|
160,000
|
Pre-incorporation
expenses (allowable)
|
60,000
|
Rent, rates and
insurance (allowable)
|
100,000
|
Legal and
accounting fees (allowable)
|
830,000
|
Depreciation
(disallowable)
|
200,000
|
Dividends (disallowable)
|
100,000
|
Loss on the sale
of motor vehicles (allowable)
|
100,000
|
Interest on
overdue tax (disallowable)
|
50,000
|
The following additional information
relates to the above expenses:
1.
Repairs and renewals:
-
Redecorating an existing business – 60,000
-
Renovation to a building recently purchased – 100,000
2.
Subscriptions and donations:
-
National chamber of commerce – 20,000
-
Kenya Red Cross Society – 20,000
3.
Pre-incorporation expenses:
-
Secretarial services fee – 20,000
-
Stamp duty - - 40,000
4.
Depreciation:
-
Motor vehicles purchased at the beginning of the year
2013 at the cost of KES 3,000,000 – depreciated at 10% - 300,000
-
Software – purchased at the beginning of the year 2013
at the cost of KES 500,000 – amortized at the rate of 10% - 50,000
-
Office furniture purchased at the beginning of the
year 2013 at the cost of KES 500,000- depreciated at 10% - 50,000
5.
Since Mhasibu provides a service, their clients
withheld 5% of the amount due to Mhasibu. In total, KES 255,000 was withheld by
the clients.
Calculate the tax liability of Mhasibu
Company Limited.
Revision Notes
Corporate Structures and tax treatment
·
The most common corporate form is a limited liability
company.
·
Recently, Kenyan law has introduced limited liability
partnerships.
·
The key differences between these two types of
entities is that a limited liability partnership is considered tax transparent (as is the case with
unincorporated partnerships in Kenya) while a limited liability company is taxable on its own right as a separate
legal entity.
Transparent Entities
·
Partnerships (both incorporated and unincorporated)
are generally treated as transparent for tax purposes in Kenya.
·
Before 2012, it was only possible to establish an
unincorporated partnership in Kenya and therefore these types of entities were
mainly used by professional service firms.
·
In 2012, Kenya introduced limited liability
partnerships (LLPs) which are corporate vehicles with separate legal
personality from their members.
·
The business sector and investment groups therefore
mainly use a limited liability company as their investment vehicle.
·
Having said that, it is also becoming common to find
that a foreign company, such as a Mauritius global business company, has been
used as an investment vehicle for investments made in Kenya. This is
particularly common for private equity and hedge funds with investments in
Kenya.
Determining residence
·
A company is tax resident in Kenya if:
1.
It is incorporated under Kenyan law;
2. The management and
control of its affairs are exercised in Kenya for any given year of income; or
3. If the Cabinet
Secretary in charge of the National Treasury declares the company to be tax
resident for a particular year of income in a notice published in the Kenya
Gazette.
·
A different residency test exists under the double tax
treaties entered into with Kenya.
·
With transparent entities such as partnerships and
limited liability partnerships, the members are taxable and not the entities.
·
Consequently, tax liability of the members depends on
whether they are resident in Kenya or not.
·
In certain instances, non-resident persons would be
taxable on gains made or accrued in Kenya and would be subject to tax in Kenya
through a permanent establishment
they have been deemed to create in Kenya or through a withholding tax regime
pursuant to which a person resident in Kenya is required to withhold tax on a
payment due to the non-resident person.
Tax Rates
·
The current
corporate tax rate applicable in Kenya is 30% in the case of resident
corporations (ie limited liability companies).
·
A non-resident company with a permanent establishment in Kenya is taxed at 37.5%.
·
The tax is computed on the taxable income of a
company, having deducted expenses
which are wholly and exclusively incurred in the production of income.
·
There are preferential
tax rates available for newly listed companies, pursuant to which the tax
rates range from 20% to 27% for a period ranging from three to five years.
·
The preferential rates depend on the percentage of
listed shares made available to the public through the Nairobi Securities
Exchange, as follows:
20% rate if 40% of issued share capital is listed –
(five year period);
25% rate if 30% of issued share capital is listed –
(five year period); and
27% rate if 20% of issued share capital is listed –
(three year period).
·
For any other businesses owned by individuals directly
or through transparent entities, the individuals are taxed on individual tax
rates.
·
The individual tax rates are based on a graduated
scale ranging from 10% to 30%.
·
Monthly income in excess of USD 390 earned by an
individual would be subject to tax at the highest bracket on the graduated
scale (i.e. 30%).
Key Features of The tax regime
·
Calculation of Taxable Profits
·
Profits are taxed on an accrual basis for each tax
year.
·
Taxable profits are based on adjusted accounting
profits.
·
In other words, taxable profits comprise the excess of
a company’s net accounting profit having added back nondeductible expenses and
having deducted allowable expenses and allowances.
·
Generally, expenses such as capital expenditure,
restricted loan interest due to thin capitalisation, personal expenses,
unrealised foreign exchange losses and depreciation would be disallowed for tax
purposes.
·
On the other hand, capital allowances ranging from
12.5% to 33.3% would be allowed against taxable income for equipment used in
the production of income.
·
There are also investment deductions which may be
available as a deduction against taxable income.
·
Special incentives for technology investments
·
While there is no patent box regime in Kenya, there is
an important provision in the Income Tax Act which allows for expenditure of a
capital or revenue nature incurred on scientific research for the purposes of
business carried on to be fully deducted in a year of income. This is unlike
other types of capital expenditure which are not deductible in full against income but are instead capitalised
and receive capital allowances instead.
·
It is however important to note that the ITA provides
that the following expenditure falls within the meaning of “scientific
research”:
·
• expenditure
of a capital nature on scientific research; • expenditure
not of a capital nature on scientific research; • a sum paid to a scientific research association approved for the
purposes of this paragraph by the Commissioner as being an association which
has as its object the undertaking of scientific research related to the class
of business to which the business belongs; or • a
sum paid to a university, college, research institute or other similar
institution approved for the purposes of this paragraph by the Commissioner for
the scientific research mentioned in subparagraph (2.3);
·
In addition,
the following technology related capital allowances are available:
·
• Computer
software – 20% on cost; • Telecommunication
equipment – 20% on cost; and • Irrevocable
Right of Use (IRU) on fibre optic cable – 5% on cost.
