Most takeaway and sandwich shops are not part of the big chains like Greg’s, McDonalds or Subway, they are just small businesses doing their best to comply with complicated and confusing VAT rules, here is a quick summary to help those businesses account for their sales. Basically by using keeping 3 separate receipt books it will make it easier for their accountants to calculate the VAT, rather than a single takings book which almost inevitably means making estimates of the split between zero rates and vatable.
The rules are in HMRC Notice 709/1
So what changed in the Budget 2012
Food is subject to VAT once it is heated to “above air-ambient temperature”, and meant to be eaten in or near the shop or restaurant. So “takeaway food” is already subject to VAT, while most hot food sold by bakers and supermarkets is exempt as it has been heated to improve its appearance (ie it could equally be enjoyed cold); or it will be eaten at home.The aim of the change is therefore to “clarify the definition of ‘hot takeaway food’ to confirm that all food (with the exception of freshly baked bread) that is above ambient temperature when provided to the customer is standard [VAT]-rated”.
VAT can be very complicated as highlighted in the case of Jaffa Cakes – Cakes or Biscuits?
The leading case on the borderline is that concerning Jaffa cakes: United Biscuits(LON/91/0160). Customs and Excise had accepted since the start of VAT that Jaffa cakes were zero-rated as cakes, but always had misgivings about whether this was correct. Following a review, the department reversed its view of the liability. Jaffa cakes were then ruled to be biscuits partly covered in chocolate and standard-rated: United Biscuits (as McVities, one of the largest manufacturers of Jaffa cakes) appealed against this decision. The Tribunal listed the factors it considered in coming to a decision as follows.
- The product’s name was a minor consideration.
- Ingredients:Cake can be made of widely differing ingredients, but Jaffa cakes were made of an egg, flour, and sugar mixture which was aerated on cooking and was the same as a traditional sponge cake. It was a thin batter rather than the thicker dough expected for a biscuit texture.
- Cake would be expected to be soft and friable; biscuit would be expected to be crisp and able to be snapped. Jaffa cakes had the texture of sponge cake.
- Size: Jaffa cakes were in size more like biscuits than cakes.
- Packaging: Jaffa cakes were sold in packages more similar to biscuits than cakes.
- Marketing: Jaffa cakes were generally displayed for sale with biscuits rather than cakes.
- On going stale, a Jaffa cake goes hard like a cake rather than soft like a biscuit.
- Jaffa cakes are presented as a snack, eaten with the fingers, whereas a cake may be more often expected to be eaten with a fork. They also appeal to children, who could eat one in a few mouthfuls rather like a sweet.
- The sponge part of a Jaffa cake is a substantial part of the product in terms of bulk and texture when eaten.
Taking all these factors into account, Jaffa cakes had characteristics of both cakes and biscuits, but the tribunal thought they had enough characteristics of cakes to be accepted as such, and they were therefore zero-rated.
Surely there must be a way to simplify the rules?