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What are the elements of the main criminal law offences in tax litigation?

The elements of the main criminal law offence of tax evasion are as follows:
  • Non-disclosure of income or other information relevant to the tax status of a person.
  • Fraudulent misrepresentation in tax reporting documentation.
  • Non-payment of taxes.
The available defences in respect of the offence of tax evasion are as follows:
  • A genuine lack of awareness that the offence was being committed. This is typically used by the senior management of an organisation that is charged with tax evasion, and the person accused will have to:
  • prove that there was no way that they could have known that the offence was being committed;
  • illustrate what steps they took to remedy the situation upon discovery.
  • A lack of clarity in the law which led to a misinterpretation or misapplication of that law by the taxpayer.
  • The Kenya Revenue Authority made a representation to the taxpayer that created a legitimate expectation that the taxpayer would be treated in a certain way, and that the taxpayer's actions were in accordance with the law.