Avoiding Double Taxation: What Pension Schemes Can Learn from the Banki Kuu Ruling

Introduction

In a landmark ruling that could reshape the landscape of pension fund taxation in Kenya, the Banki Kuu Pension Scheme 2012 Registered Trustees emerged victorious in a dispute against the Commissioner of Domestic Taxes. At the heart of the dispute was a critical question: Should excess contributions to a pension fund, beyond the previous statutory limit of Kshs. 240,000 (currently Kshs. 360,000), be subject to corporate tax? This case not only highlights the complexities of tax exemptions for registered pension schemes but also underscores the importance of avoiding double taxation.

Background of the Case

The Appellant, Banki Kuu Pension Scheme 2012 Registered Trustees, is a pension scheme established for the benefit of Central Bank of Kenya staff and their dependents. The scheme is registered under the Retirement Benefits Authority and operates within the framework of Kenyan pension laws.

During a tax audit/review for the period from July 2018 to June 2020, the Commissioner of Domestic Taxes claimed that investment income earned from the extra money put into the pension fund (above the usual contribution limits) should be taxed right at the scheme/fund level. This resulted in a tax bill of Kshs. 240,865,260.00 for the pension fund. The trustees of the Banki Kuu Pension Scheme 2012 disagreed with this tax decision, so they challenged it by taking the matter to the Tax Appeals Tribunal to resolve the disagreement.

The Legal Battle: Appellant vs. Respondent

Appellant’s Position (Banki Kuu Pension Scheme 2012 Registered Trustees)

The Appellant argued that its income is fully exempt from corporate tax under Section 13 of the Income Tax Act and Paragraph 12 of the First Schedule to the ITA. These provisions grant tax exemptions to registered pension schemes, and the Appellant contended that taxing excess contributions at the scheme level would result in double taxation. This is because taxes are already paid by members when they withdraw their benefits.

Respondent’s Position (Commissioner of Domestic Taxes)

The Respondent maintained that contributions exceeding the annual limit at the time of Kshs. 240,000 are not exempt from taxation. Consequently, the investment income generated from these excess contributions should be subject to corporate tax at the scheme level. The Respondent argued that the tax exemption under the ITA applies only to contributions within the statutory limit and that income from excess contributions falls outside this exemption.

Tribunal’s Findings

The Tax Appeals Tribunal ruled in favor of the Appellant, holding that the income of registered pension schemes is fully exempt under the ITA. The Tribunal found no legal basis for segregating income based on excess contributions and emphasized that the tax exemption applies to the entire income of the scheme.

Key points from the Tribunal’s ruling include:

No Legal Basis for Segregation: The Tribunal found no provision in the ITA that allows for the separation of income derived from excess contributions.
Legitimate Expectation: The Tribunal upheld the principle of legitimate expectation, noting that the Respondent’s prior refund of corporate taxes reinforced the Appellant’s understanding of its tax-exempt status.
Avoidance of Double Taxation: The Tribunal concluded that taxing the Appellant’s income at the scheme level would amount to double taxation, as taxes are already paid by members upon withdrawal of their benefits.

Key Takeaways from the Ruling

The Tribunal’s decision offers several important lessons for pension schemes, tax professionals, and policymakers:

Tax Exemption: Income from excess contributions (above Kshs. 240,000 annually, now Kshs. 360,000) is not subject to corporate tax at the scheme level.
Legitimate Expectation: Taxpayers can rely on precedent set by the tax authority to establish a legitimate expectation of consistent tax treatment.
Double Taxation: Tax authorities must avoid double taxation, particularly in cases where taxes are already paid at the point of withdrawal by pension scheme members.

Implications for Pension Schemes and Tax Planning

The ruling has significant implications for pension schemes and their members:

Compliance: Pension schemes must ensure compliance with the Income Tax Act and Retirement Benefits Authority regulations. Maintaining clear records of contributions and withdrawals is essential to avoid disputes with tax authorities.
Tax Planning: Schemes should leverage the tax-exempt status of pension withdrawals under the Tax Laws (Amendment) Act, 2024, to optimize tax efficiency for their members.
Dispute Resolution: In case of disputes, pension schemes should consider appealing to the Tax Appeals Tribunal, which has demonstrated a tendency to interpret tax laws in favor of taxpayers where exemptions are clearly established.

Conclusion: What This Means for the Future

The Banki Kuu Pension Scheme case is a landmark ruling that reaffirms the tax-exempt status of registered pension schemes under Kenyan law. It highlights the importance of statutory interpretation, legitimate expectation, and the avoidance of double taxation in the context of pension income.
For pension scheme trustees and members, this ruling provides much-needed clarity and sets a precedent for future disputes. It also underscores the need for tax authorities to align their assessments with the provisions of the Income Tax Act, ensuring fairness and consistency in the treatment of pension funds.
As the regulatory landscape continues to evolve, staying informed about changes in tax legislation will be crucial for maximizing the benefits of retirement savings in a tax-efficient manner.

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Have questions about how this ruling affects your pension scheme? Contact our team of tax experts today on tax.advisory@kkcoeastafrica.com .