William Mbote

Should the taxpayer still bear the burden of proof in instances where a tax dispute with the Revenue Authority is based in pre-populated & third party data? In my submission before the National Assembly's Finance & Planning Committee on behalf of the Tax Research Centre at @StrathU, I argue that Finance Bill 2026's proposals seeking to anchor Incomes & Expenses Validation in law will be incomplete if they do not include a proposal for the the Revenue Authority being saddled with the burden of proof in such instances. Here's why: · Finance Bill 2026 proposes to amend Sec75 of the Tax Procedures Act to provide that the Revenue Authority may use technology to pre-populate tax returns on behalf of a person required to submit or lodge a tax return · Finance Bill 2026 further proposes that a person required to submit or lodge a tax return may rely on pre-populated return generated by the Revenue Authority to file their return · Finance Bill 2026 proposes to amend Sec112 to provide that the Cabinet Secretary of the National Treasury may make Regulations for the procedure for the submission or lodging of returns based on pre-populated tax returns generated by the Revenue Authority Here's where the problem is: · In all this, Sec56(1) which provides that "In any proceedings, the burden shall be on the taxpayer to prove that a tax decision is incorrect" remains unchanged · Sec56(1) is predicated on the fact that Kenya has been running on a self-assessment based regime & the data upon which tax disputes emerges was held by the taxpayer · With Incomes & Expenses Validation & the onset of a Dual Assessment regime in Kenya, taxpayers are now exposed not just to errors of judgement & data on their part, but also errors of technology & transmission which are out of their control · Can we really still have the burden of proof lying exclusively with the taxpayer in an environment where tax compliance has shifted from a function of record keeping to one where system integration reliability is now a key factor?