Value Added Tax on Cross-Border Digital Supplies: The Kenyan Approach under the Finance Act 2019

Abstract

Advancements in the global digital economy have resulted in high levels of profitability for enterprises operating within it. The digital economy is particularly challenging for tax authorities the world over, as it is characterised by an unparalleled reliance on intangible assets and a difficulty in determining the jurisdiction in which value creation occurs. It is against this backdrop that Kenya enacted the Finance Act 2019, that had amongst its objectives, the effective taxation on the consumption of cross-border digital supplies. The amendments are largely targeted at the taxation of imported digital supplies from foreign jurisdictions to final consumers in Kenya. They place the responsibility of tax assessment and remittance to the consumer of the service. This move presents a critical departure from the previous regime where the responsibility of Value Added Tax (VAT) assessment and remittance fell on the firms supplying the service squarely. This paper critically assesses the practical efficacy and inherent weaknesses arising from the potential implementation of the proposed amendments under the VAT Act and provides recommendations on the way forward.