Tax Appeal Memorandum — TAT (Kenya)

A Tax Appeal Memorandum — TAT in Kenya records the items or particulars it lists for the purpose it serves.

The Tax Appeals Tribunal sits in Nairobi at Anniversary Towers but also conducts hearings in Mombasa, Kisumu, Nakuru, and other regional centres. The TAT is chaired by a person qualified to be appointed a judge of the High Court of Kenya, and its members include persons with expertise in tax law, accountancy, and business. Decisions of the Tax Appeals Tribunal are binding and appealable to the High Court of Kenya on a point of law under Section 26 of the Tax Appeals Tribunal Act No. 40 of 2013.

The right to appeal to the TAT arises after a taxpayer has exhausted the objection process under Section 51 of the Tax Procedures Act No. 29 of 2015. A taxpayer must first lodge a formal objection to a KRA assessment with the Commissioner of Domestic Taxes. If the Commissioner disallows or partially allows the objection, the taxpayer may appeal that objection decision to the TAT within 30 days of receiving the objection decision notice, under Section 13(1) of the Tax Appeals Tribunal Act No. 40 of 2013. Where the Commissioner fails to determine an objection within the prescribed period under Section 51(11) of the Tax Procedures Act — which is 60 days for domestic taxes unless the parties agree on a longer period — the taxpayer may treat the delay as a deemed refusal and appeal directly to the TAT.

The Tax Appeal Memorandum must comply with the Tax Appeals Tribunal (Procedure) Rules 2015 made under Section 29 of the TAT Act. Rule 4 of the Procedure Rules specifies that the memorandum must be in the prescribed form, state the grounds of appeal with sufficient particularity, identify the decision being challenged, and be accompanied by the filing fee prescribed in the First Schedule to the TAT Act. The filing fee is calculated as a percentage of the tax in dispute — 1% of the disputed tax, subject to a minimum of KES 5,000 and a maximum of KES 1,000,000 — and acts as a security deposit refundable to the successful party.

The Tax Appeal Memorandum on forms-legal.com enables Kenyan taxpayers and their legal representatives to prepare a compliant TAT appeal document that meets the procedural requirements of the Tax Appeals Tribunal Act No. 40 of 2013, the Tax Appeals Tribunal (Procedure) Rules 2015, and the KRA's administrative framework under the Tax Procedures Act No. 29 of 2015.

A Tax Appeal Memorandum in Kenya is required whenever a taxpayer has received an objection decision from the KRA Commissioner that they wish to challenge before the Tax Appeals Tribunal, or when a deemed refusal has arisen under the Tax Procedures Act No. 29 of 2015.

A Tax Appeal Memorandum is needed when the KRA Commissioner of Domestic Taxes has issued an objection decision under Section 51 of the Tax Procedures Act No. 29 of 2015 maintaining or adjusting a tax assessment that the taxpayer believes is incorrect in law or fact. The taxpayer must file the memorandum at the TAT registry within 30 days of receiving the objection decision under Section 13(1) of the Tax Appeals Tribunal Act No. 40 of 2013.

The memorandum is required when a taxpayer has lodged an objection with the KRA and the Commissioner has failed to issue a determination within 60 days under Section 51(11) of the Tax Procedures Act No. 29 of 2015. In this situation, the taxpayer may treat the inaction as a deemed objection refusal and file a memorandum of appeal at the TAT without waiting for the Commissioner's decision.

A Tax Appeal Memorandum is needed when the KRA has imposed a penalty under Sections 81 to 90 of the Tax Procedures Act No. 29 of 2015 — for example, a late filing penalty, a tax shortfall penalty, or a penalty for failure to maintain proper records — and the taxpayer disputes the penalty amount or the factual basis on which it was imposed.

The memorandum is required when a taxpayer operating in a specific sector — such as mining under the Mining Act No. 12 of 2016, insurance under the Insurance Act Cap. 487, or financial services under the Banking Act Cap. 488 — receives a sector-specific tax assessment that involves disputed transfer pricing adjustments under Section 18 of the Income Tax Act Cap. 470, and the KRA objection decision does not adequately address the taxpayer's transfer pricing documentation.

A Tax Appeal Memorandum is needed when a taxpayer who has paid tax under protest, as permitted by Section 37 of the Tax Procedures Act No. 29 of 2015, subsequently receives a refusal from the KRA Commissioner on their refund application and wishes to recover the amount paid.

A Kenya Tax Appeal Memorandum filed under Section 13 of the Tax Appeals Tribunal Act No. 40 of 2013 must contain the following essential elements to be accepted by the TAT Registrar and to enable effective prosecution of the appeal.

Case Title and Parties: The memorandum must identify the appellant (the taxpayer challenging the KRA decision) by full legal name and KRA PIN, and the respondent (the Commissioner of Domestic Taxes or the Commissioner of Customs and Border Control, as applicable). The case reference number assigned to the objection by the KRA, and the date and reference number of the objection decision being challenged, must be stated.

Decision Under Appeal: A precise description of the tax decision being challenged — the type of tax (income tax, VAT, excise duty, PAYE, customs duty), the tax period, the amount of tax assessed or penalty imposed, and the date of the objection decision. A copy of the objection decision letter must be annexed to the memorandum as required by Rule 4(2)(c) of the Tax Appeals Tribunal (Procedure) Rules 2015.

Grounds of Appeal: The specific legal and factual grounds on which the appellant contends that the KRA objection decision is wrong. Each ground must be stated distinctly and concisely. Common grounds include: misapplication of the Income Tax Act Cap. 470 or the Value Added Tax Act No. 35 of 2013; errors of fact in the KRA's audit findings; failure by the Commissioner to consider documentary evidence submitted with the objection; incorrect application of transfer pricing rules under Section 18 of the Income Tax Act Cap. 470; and breach of the right to a fair hearing under Article 47 of the Constitution of Kenya 2010 as read with the Fair Administrative Action Act No. 4 of 2015.

Relief Sought: The exact remedy the appellant asks the TAT to grant — for example, setting aside the assessment in full, reducing the assessed tax to a specified amount, remitting the penalty, or directing the Commissioner to issue a revised assessment. The TAT has jurisdiction under Section 22 of the Tax Appeals Tribunal Act No. 40 of 2013 to affirm, vary, or set aside the decision under appeal.

Filing Fee: Confirmation that the filing fee — 1% of the disputed tax, minimum KES 5,000, maximum KES 1,000,000 under the First Schedule to the TAT Act — has been paid or will be paid at the TAT registry. Payment is made by banker's draft or EFT to the TAT account.

Statement of Facts: A chronological narrative of the relevant facts, from the original assessment through the objection process to the impugned objection decision, giving the TAT the factual context needed to evaluate the grounds of appeal.

Annexures: Copies of all documents referenced in the memorandum, numbered sequentially — the original assessment notice, the taxpayer's objection letter, the objection decision, and any supporting financial or accounting records.

The forms-legal.com Kenya Tax Appeal Memorandum template covers all mandatory elements under the Tax Appeals Tribunal Act No. 40 of 2013 and the Tax Appeals Tribunal (Procedure) Rules 2015, enabling compliant filing at the TAT registry in Nairobi.

Additional compliance elements for a Tax Appeal Memorandum — TAT (Kenya) used in Kenya include: Under Kenyan law, the Constitution of Kenya 2010 is the supreme law. The Law of Contract Act (Cap. 23) governs contractual obligations. The Kenya Revenue Authority (KRA) administers tax under the Income Tax Act (Cap. 470). The High Court of Kenya, established under Article 165 of the Constitution, has unlimited original jurisdiction. The Data Protection Act No. 24 of 2019 and the Office of the Data Protection Commissioner (ODPC) govern personal data. Forms-legal.com provides this template as a starting point for Kenya-compliant documentation.