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{
    "id": 844287,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/844287/?format=api",
    "text_counter": 204,
    "type": "speech",
    "speaker_name": "Uasin Gishu CWR JP",
    "speaker_title": "Hon. (Ms.) Gladys Boss Shollei",
    "speaker": {
        "id": 13278,
        "legal_name": "Gladys Jepkosgei-boss Shollei",
        "slug": "gladys-jepkosgei-boss-shollei"
    },
    "content": "committees or rules for disciplining advocates who do not adhere to the regulations and also for the purpose of issuing practising certificates. It is very similar. The Committee also wishes to report that it is required by Section 16 of the Statutory Instruments Act to consult with the regulation-making authority. In this case, the Committee met with the National Treasury in order to consult in relation to these particular regulations. During that time, the Committee considered the regulations against the provisions of the Constitution, the Tax Procedures Act, the Statutory Instruments Act and the Interpretation and General Provisions Act. The Committee, in its findings, observed and recommended that the regulations are void for the following reasons; or must be nullified for the following reasons: 1. On account of defective drafting. 2. That the penalties prescribed exceed that by the parent statute; and, 3. There is no provision for professional indemnity to protect persons that are served by those tax agents. The regulations do not provide for a transitional mechanism as well as the status of existing tax agents. You may recall that there are tax agents existing at the moment. The regulations do not provide how the old tax agents will transit into these new regulations. For that reason, that is deemed as defective drafting because regulations must have transitional mechanisms or clauses. The second reason is that the offences and penalties that are provided in these regulations exceed that of the parent statute. Specifically, Regulation 10 prescribes the offences and also provides for the penalties for persons who are found culpable in contravening the regulations set out. It indicates that those persons shall be liable for a fine not exceeding Kshs200,000 or an imprisonment for a term not exceeding two years. However, this exceeds what is provided by the Tax Procedures Act, which provides that it should not exceed Kshs20,000 or such terms of imprisonment not exceeding six months or both. It, therefore, also contravenes Section 24 of the Statutory Instruments Act which also caps a limit to the penalties and prison terms that can be meted out to such persons. The third reason is that it is common practice as seen in lawyers and doctors that professionals take out professional indemnity to cover legal costs and expenses incurred in their defence as well as damages or costs that may be awarded if they are alleged to have provided inadequate advice or services to their clients. The Committee observed that the regulations do not provide for this professional indemnity or insurance or compensation to taxpayers and, therefore, contravenes the parent statute. Lastly, the Committee also found that contrary to the Section 11 (1) of the Statutory Instruments Act, the regulation-making authority did not provide an explanatory memorandum which details out the manner in which public participation was carried out as required by the Constitution. The Committee was dissatisfied with the regulation-making authority’s explanation that it did not find public participation necessary since the regulations existed as the Kenya Revenue Authority Tax Agents Regulations 2012 and had, therefore, considered it as a transition from the previous Kenya Revenue Act which has since been repealed. The Committee observed that this was in contravention with Section 5 of the Statutory Instruments Act. Therefore, it was the finding of the Committee that the regulations are contrary to the Constitution, Tax Procedures Act and the Statutory Instruments Act and, therefore, recommended that they must be nullified in their entirety. It is the recommendation of the Committee that the Tax Procedures (Tax Agents) Regulations, 2018 be annulled in their entirety. The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor."
}