How To Write a Memorandum of Appeal in a Tax Case 

Legal processes follow specific guidelines and rules that must be followed. Failure to follow these requirements can have your tax case dismissed, which will not be in your favor. These guidelines include mandatory documents required to appeal, whether to the High Court, Court of Appeal, or the Tax Appeals Tribunal (TAT). One such document is the memorandum of appeal (MOA). This legal document is one of the mandatory documents that an appellant must submit as part of the tax appeal process. This post seeks to explain what a memorandum of appeal is in a tax case and how to write one in Kenya.

What is a Memorandum of Appeal in a Tax Case?

A memorandum of appeal is a legal document filed by an appellant in a tax case to a higher court or tax tribunal. This memo states the grounds under which the appellant is asking the higher court/tribunal to overturn or vary the decision made by a lower court or KRA. To understand where a memorandum of appeal comes in in a tax dispute, let’s recap what happens when a taxpayer is involved in a tax dispute with the KRA. Here’s a summary of what happens when a KRA assessment or audit escalates into a tax dispute:

• Step 1: KRA states the amount of tax payable, penalties, and interests after their audit and assessment.
• Step 2: The taxpayer accepts the decision and pays the tax/penalties/interest. If the taxpayer objects to the KRA decision, they object.
• Step 3: The taxpayer lodges an objection with KRA.
• Step 4: KRA accepts the objection and adjusts the taxes due, penalties, interests, etc. If KRA is not satisfied, it offers an objection decision.
• Step 5: If the taxpayer is not ready to give in to KRA’s objection, they can appeal the case with the TAT. They need to file a notice of appeal. Fourteen days after filing the notice of appeal, the taxpayer must file a memorandum of appeal, statement of facts, and the tax decision by the lower authority.

Now that we have an idea of where the memorandum of appeal comes in during the tax appeal process, let’s discuss what it entails. A memorandum of appeal is a procedural requirement under the Tax Appeals Tribunal Rules, the Income Tax Rules, and the Court of Appeals Rules. It must meet the following requirements:

• Must be signed by the appellant or their representative tax agent.
• It must set out concisely (without arguments or narrative) the grounds of appeal.
• The appeal grounds should be numbered consecutively under distinct heads.
• Must contain an index of all documents in the appeal, with the number of pages on which they appear in the appeal.
• Must be accompanied by a copy of the tax decision and notice of appeal.

What’s the Significance of a Memorandum of Appeal in a Tax Case?

Filing a memorandum of appeal in a tax case is crucial and serves various purposes. Here’s why you need to write a memorandum of appeal:

• It’s a procedural requirement: As we mentioned earlier, every appellant is required to file a memorandum of appeal. It’s a legal procedural requirement as laid down by TAT, Income Tax, and Court of Appeal rules.
• Shows grounds for appeal: Why do you think the lower authority’s decision/judgment is unfair? What factual errors can you present that the court could use to overturn or vary the previous judgment? A memorandum of appeal states these grounds concisely, giving the respondent and courts issues to be argued.
• For record keeping and case management: Filing legal documents allows the court clerks to prepare your appeal records, list grounds of appeal, and set hearing dates.

How to Write a Memorandum of Appeal in a Tax Case

A memorandum of appeal is a structured document, and you ought to follow the given format. Sticking to the provided structure is key to compliance. However, the structure may vary, depending on whether you are filing with the TAT, High Court, or the Court of Appeal. Here are the essential components of a memorandum of appeal in a tax case in Kenya:

1. Court or tribunal heading.
2. File or case number.
3. The name of the appellant/their tax agent or advocate, and the respondent, e.g, taxpayer vs KRA.
4. Title.
5. Reference to the tax decision appealed against.
6. Appeal grounds, numbered consecutively.
7. Prayer or Relief being sought through the appeal. E.g., setting aside the previous decision or remitting the case back to KRA.
8. Appellant, their tax agent, or advocate’s signature, address for service, and date.

Now that we know the structure, what tips and tricks should you follow to write a compliant MOA in a tax case?

Let’s discuss them below.

Practical Tips and Strategies for Writing a Memorandum of Appeal in a Tax Case

Follow these strategies to avoid pitfalls and errors when writing an MOA for a tax case:

• Confirm the applicable rules for your specific MOA: Who is your MOA addressed to? An MOA to the TAT is different from an MOA to the High Court or Court of Appeal. Review the particular rules that apply to your tax case.
• Be concise and avoid arguments in the grounds for appeal: Use single-sentence grounds and complaints, saving long arguments for submissions.
• Be clear about your prayer/relief: What is the goal of your appeal? Use practical wording to describe what relief you seek through the appeal. E.g., The appellant prays that the honorable court set aside the decision dated 10/1/2024.
• Include the accompanying appeal papers: Remember to include the tax decision, notice of appeal, and statement of facts as required by the law.
• Proofread before submission: A memorandum of appeal is a serious court document that could shape the direction of your tax case. Please proofread to ensure everything is clear and concise, and the required signatures and dates are included.
• Honour the deadlines: The law provides specific deadlines for filing the MOA, depending on whether you are filing the document in court or a tribunal. For the MOA to the TAT, the appellant must file the document within 14 days after filing the Notice of Appeal. On the other hand, an appellant has up to 30 days after filing the Notice of Appeal to file an MOA with the Court of Appeal or High Court.

Get Professional Support in Drafting and Filing a Tax Appeal

The tax appeal process in Kenya follows strict guidelines that determine whether your case succeeds or fails. It’s a lengthy process, from conducting legal research and filing an appeal notice to writing a compelling memorandum of appeal. Partnering with a legal expert or a tax agent simplifies the process, raising your chances of winning the appeal. At Gichuri & Partners, we provide comprehensive tax appeal assistance, including drafting a compliant MOA and representing you before the TAT and higher courts. We will help you write a befitting MOA for your tax case, file the appeal on time, save on costs, and argue the grounds of appeal. Let us handle your tax litigation issues so that you can focus on your business.