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17 July 2014updated 30 Jun 2021 11:53am

Felicity Cloake: Let the Gingerbread Man go naked . . . and save us some tax

A court has ruled that the Snowball is a cake, not a biscuit, and is exempt from tax. It’s not the first snack to wriggle out of extra charges. 

By Felicity Cloake

Stop the presses! Hold the front page! On 27 June, Scotland’s first-tier tax tribunal ruled that the Snowball, that gloriously gooey, chocolate-coated, coconut-dusted marshmallow confection, is officially a cake, rather than a biscuit.

This may seem a trivial matter, especially if you live south of the border, where the Snowball’s coconut-free cousin the teacake is the better known, but I can assure you it is not. Cakes, unlike chocolate biscuits, are exempt from VAT, which means that the decision was worth £2.8m in back tax for the two Lanarkshire bakers that brought the appeal. A sweet victory indeed.

It was the little details of the judging process I particularly enjoyed: as well as the usual legal pleas, the judges were presented with a plate “comprising a number of confections including one each of a Jaffa Cake, Mr Kipling Bakewell tart, Waitrose meringue, a tea cake manufactured by each appellant, a Lees Snowball and a mini jam Snowcake”.

These were apparently tasted “in moderation”, leaving the pair with tellingly “sticky fingers” of the sort one might end up with when eating “a cake such as a vanilla slice”.

The Snowballs were found to have other significant cake-like characteristics – including an inherent unsuitability for consumption on the hoof. The tribunal was in agreement that “most people would prefer to be sitting when eating a Snowball and possibly, or preferably . . . with a plate, a napkin or a piece of paper or even just a bare table so that the pieces of coconut which fly off do not create a great deal of mess”.

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You may recall McVitie’s won similar recognition for its Jaffa Cakes in 1991 by baking a giant 12-inch version to prove its point, while M&S spent 13 years fighting for its chocolate teacakes to be recognised as cakes, rather than the chocolate biscuits the taxman claimed them to be. (A few grams of chocolate can make a good deal of difference: a gingerbread man can have chocolate chip eyes and still retain his zero rating, but if he sports fancy chocolate buttons, he’ll be taxed for his vanity.)

Why cakes and plain biscuits (and, oddly, chocolate body paint) should still be regarded as essential foodstuffs in the face of a swelling obesity crisis is a mystery, but it’s not the only absurdity of the 41-year-old value added tax. Frozen foods are exempt unless they’re designed to be eaten in a frozen state – which makes a baked Alaska tax-free, while the poor old Arctic roll is not.

Potato-based savoury snacks are taxed while tortilla chips, vegetable crisps and Twiglets are zero-rated. (I use the phrase potato-based advisedly: Pringles, which are less than 50 per cent potato, lost their appeal; they are, for tax purposes anyway, officially potato crisps.)

Tapioca-based prawn crackers are considered an essential foodstuff but those made from other cereals are a luxury – though if they’re served in a restaurant they’ll be taxed regardless of what they’re made from. If you get them with your takeaway, however, they’ll almost certainly arrive cold, meaning you don’t have to pay tax on them, which seems fair.

And on the subject of takeaways, who can forget 2012’s Pastygate affair, when outraged sausage-roll lovers forced the Chancellor to back away from his attempts to simplify their taxation?

Admittedly, we’re not the only country whose tax system invites mockery; more than one US state taxes pumpkins differently depending on whether they’re destined to become a dessert or a decoration, which may finally explain the curious American taste for pumpkin pie.

But much as I love the Snowball and its squidgy, sticky, debatably cakey cousins, I’m not sure they deserve a tax break. Let us all eat cake – but let us pay for it, too.

Next week: John Burnside on nature