Law Weblog

Treasury refunds £3.5m to Marks & Spencer; a teacake is a biscuit not at a cake

Sunday 27 April 2008 at 3:38 pm | In News | Post Comment

On 11 April 2008, the European Court of Justice finally agreed that a teacake is a biscuit and confirmed that the Treasury should pay back £3.5million in overpaid VAT to Marks and Spencer.

Marks & Spencer plc v Commissioners of Customs and Excise [2008 ECJ
[Community Law – the system of VAT is within the scope of Community law – court structure – article 234 references]
Tax officials mistakenly classified M&S teacakes as chocolate biscuits. Chocolate biscuits are subject to standard rate VAT, whereas chocolate cakes incur none.

Customs & Excise (now HM Revenue & Customs) acknowledged they had made a mistake. The ECJ also ruled that Jaffa cakes were cakes, and not biscuits. Legal action lasted 12 years.

At first, Customs and Excise offered £350,000; they said that most of the VAT had been passed on to M&S customers. They argued that if they paid back the total sum M&S would be “unjustly enriched”. They also argued that there was a three-year limit on claims for repayment; they gave back just £88,440.

Held: In its judgment, the ECJ said that the “unjust enrichment” rule did not apply on the facts. The epic dispute lasted 12 years and involved two trips to the European Court of Justice.

VAT was introduced in the UK in 1973. Under the rules, “chocolate-covered products” were all classed as biscuits and not as cakes – even chocolate teacakes – before officials recognised their error.

[Comment]
What students have said during the last 12 years …

• A teacake is a sweet, bun containing currants or sultanas, not chocolate covered or otherwise.
• Custard cream as the UK favourite biscuit.
• M&S teacakes are so dangerous and addictive that they should be treated not as cakes or biscuits but as a Class A drug (and so zero-rated for VAT).
• A biscuit, if left on a plate goes soft, if a cake is left on a plate it goes hard.