VAT on food: conflicting confections and deemed delicacies

Max Schofield

The Upper Tribunal in Innovative Bites has provided welcome clarity on a contentious point of statutory construction, writes Max Schofield (Devereux Chambers).

The late great Tommy Cooper once joked: ‘I had a dream last night I was eating a ten-pound marshmallow. I woke up this morning and the pillow was gone!’. Albeit not 10lbs the appeal in HMRC v Innovative Bites Ltd [2024] UKUT 95 (TCC) concerned the VAT treatment of large ‘Mega Marshmallows’. This judgment sits within a somewhat febrile landscape concerning VAT and confectionery alongside other recent first instance cases including DuelFuel Nutrition Ltd [2024] UKFTT 104 (TC) and WM Morrison Supermarkets Plc [2024] UKFTT 181 (TC).

Background

The taxpayer Innovative Bites (‘IB’) is a wholesaler of American food items including large marshmallows associated with roasting and ‘s’mores’. The Mega Marshmallows are about twice the size of regular marshmallows. The...

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The Upper Tribunal in Innovative Bites has provided welcome clarity on a contentious point of statutory construction, writes Max Schofield (Devereux Chambers).