The High Court this June delivered a significant blow to the Kenya Revenue Authority (KRA) by ruling that it cannot impose levies on the fees collected by banks from card transactions.
Justice David Manjanja concurred with Standard Chartered Bank’s argument that the KRA cannot impose both the 16% value-added tax (VAT) and excise duty on the fees paid by merchants for the use of point-of-sale (POS) machines.
This ruling represents a second defeat for the KRA, as the Tax Appeals Tribunal (TAT) had previously determined that the role of banks is solely to verify cardholder information during money transfers.
The core issue at stake was whether interchange fees are exempt from VAT and whether the commissioner’s application of the shortfall penalty was justified. Standard Chartered contended that interchange fees are ancillary to money transfers and, therefore, should be exempt from VAT. According to the bank, the fees charged to merchants are strictly for the purchase of goods or services and cannot be considered as money transfers.
On the other hand, the KRA argued that card users of VISA International Services Association, MasterCard, Inc., and American Express Ltd pay a royalty to the global service network system for facilitating the transaction, making it subject to VAT at the standard rate.
Justice Majanja determined that while the KRA relied on a Court of Appeal decision regarding ABSA’s payments to Visa companies for trademarks and logos, the appellate court did not specifically address royalty payments. As a result, Justice Majanja rejected the commissioner’s argument that interchange fees constitute royalty payments and are subject to VAT, noting that the Court of Appeal’s decision indicates otherwise.
In its defense before the TAT, Standard Chartered also argued that excise duty should be paid by the receiving bank that owns the point-of-sale (POS) machine, with the remaining fees distributed among issuing banks and payment service providers like VISA. The tribunal concluded that imposing excise duty on fees received by Standard Chartered would amount to double taxation.
The KRA conducted a review of the financial statements of lenders from January 2014 to September 2018. As a result, it claimed that Standard Chartered owed additional excise duty on earned fees and commissions, totaling Sh505.7 million, including interest and penalties.
As of March 2021, there were 48,355 POS machines in the country, facilitating a total of 3,511,453 transactions.
