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You are here: BAILII >> Databases >> United Kingdom Upper Tribunal (Tax and Chancery Chamber) >> Walkers Snack Foods Ltd v Revenue and Customs (Value Added Tax - excepted item 5 to item 1, Group 1, Part II, Schedule 8 Value Added Tax Act 1994 - whether First-tier Tribunal erred in law in finding Sensations Poppadoms were "made from the potato, or from potato flour, or from potato starch" and were "similar" to potato crisps) [2025] UKUT 155 (TCC) (22 May 2025) URL: https://www.bailii.org/uk/cases/UKUT/TCC/2025/155.html Cite as: [2025] UKUT 155 (TCC) |
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(Tax and Chancery Chamber)
Fetter Lane, London, EC4A 1NL |
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Judgment Date: 22 May 2025 |
B e f o r e :
JUDGE ASHLEY GREENBANK
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Appellant |
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- and - |
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THE COMMISSIONERS FOR HIS MAJESTY'S REVENUE AND CUSTOMS |
Respondents |
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For the Appellant: Max Schofield, counsel, instructed by Grant Thornton LLP
For the Respondents: Giselle McGowan, counsel, instructed by the General Counsel and Solicitor to His Majesty's Revenue and Customs
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Crown Copyright ©
Value Added Tax – excepted item 5 to item 1, Group 1, Part II, Schedule 8 Value Added Tax Act 1994 – whether First-tier Tribunal erred in law in finding Sensations Poppadoms were "made from the potato, or from potato flour, or from potato starch" and were "similar" to potato crisps – no – appeal dismissed
Introduction
Relevant law
Relevant legislation
5 Any of the following when packaged for human consumption without further preparation, namely, potato crisps, potato sticks, potato puffs, and similar products made from the potato, or from potato flour, or from potato starch, and savouryfood
products obtained by the swelling of cereals or cereal products; and salted or roasted nuts other than nuts in shell.
Relevant case law
(1) The statutory question posed by excepted item 5 can be restated as whether the relevant products are "similar to potato crisps, potato sticks, or potato puffs and made from the potato, or from potato flour, or from potato starch"? (P&G [12]).
(2) It is a composite question. "So, although it is convenient to ask separately whether the [relevant products] are 'similar' to potato crisps etc. and whether they are 'made from potato', one must also take into account the composite nature of the question" (P&G [13]).
(3) That question involves a value judgment, which requires "a multifactorial assessment based on a number of primary facts". An appeal court or tribunal "should be slow to interfere" with such a value judgment made by the fact-finding tribunal (P&G [9]).
(4) The question is one of classification for VAT purposes, but it is "not one calling for or justifying over-elaborate, almost mind-numbing, legal analysis. It is a short practical question calling for a short practical answer" (P&G [14]).
(5) The first limb of the composite question – that is whether the products are "similar" to potato crisps, potato sticks, or potato puffs – requires a multifactorial assessment. However, it is not incumbent upon the fact-finding tribunal to set out and identify the weight given to each and every factor. All that is required is that the judgment of the tribunal enables the appellate court or tribunal to understand how the decision was reached. Jacob LJ said this at P&G [19]:
… It was not incumbent on the Tribunal in making its multifactorial assessment not only to identify each and every aspect of similarity and dissimilarity (as this Tribunal so meticulously did) but to go on and spell out item by item how each was weighed as if it were using a real scientist's balance. In the end it was a matter of overall impression. All that is required is that "the judgment must enable the appellate court to understand why the judge reached his decision" (per Lord Phillips MR in English v Emery [2002] EWCA Civ 605, [2002] 1 WLR 2409 at 19]) and that the decision "must contain... a summary of the Tribunal's basic factual conclusion and statement of the reasons which have led them to reach the conclusion which they do on those basic facts" (per Thomas Bingham MR in Meek v Birmingham City Council [1987] IRLR 250).
(6) The question for the tribunal is simply "what is a reasonable view on the basis of all of the facts". (The VAT and Duties Tribunal in P&G had invoked an "ordinary man in the street" test, but this had to be qualified by reference to knowledge of all the facts that were before the tribunal.) Jacob LJ said this at P&G [21]:
21. To my mind this approach is saying no more than "what is the reasonable view on the basis of all the facts" – it does not matter if some of the facts would not be known to the "man in the street." That is why the test accepted as proper in [Customs & Excise Commissioners v Ferrero] adds "who had been informed as we have been informed." The uninformed view of the man in the street is deliberately not being invoked.
(7) The test on an appeal is simply whether the fact-finding tribunal has reached a conclusion that no reasonable tribunal, properly construing the statute, could reach. Jacob LJ said this at P&G [22]:
22. So one can put the test for an appeal court considering this sort of classification exercise as simply this: has the fact finding and evaluating Tribunal reached a conclusion which is so unreasonable that no reasonable Tribunal, properly construing the statute, could reach?
(8) As regards the second limb – that is whether the products are "made from" the potato, or potato flour, or potato starch – there is no particular level of potato content that is required (P&G [26]-[32]). On the facts of the case, the Tribunal found that Pringles, which had a potato flour content of over 40%, were "made from" potato flour. Jacob LJ expressed the view that there was "more than enough potato content" for it to be a reasonable view that Pringles were "made from the potato" (P&G [33]).
The factual background
(1) lime & coriander chutney flavour: sunflower oil (22.09%), potato granules (17.98%), potato starch (17.98%), gram flour (14.38%), rice flour (14.38%), flavouring (6%), modified potato starch (4.31%);
(2) mango & chilli chutney flavour: sunflower oil (21.60%), potato granules (17.60%), potato starch (17.60%), gram flour (14.08%), rice flour (14.08%), flavouring (8%), modified potato starch (4.22%) (FTT [11]).
The FTT decision
(1) first, whether Sensations Poppadoms were "made from the potato, or from potato flour, or from potato starch"; and
(2) second, whether Sensations Poppadoms were "similar" to potato crisps, potato sticks or potato puffs.
(1) Potato granules were a cooked and dried form of potato and should be regarded as being within the term "the potato" (as opposed to "a substance derived from potato") for the purposes of excepted item 5 (FTT [17]-[18]).
(2) Having reached that conclusion, the FTT was not required to determine whether the phrase "made from the potato, or from potato flour, or from potato starch" in excepted item 5 should be given a restricted reading – asWalkers
argued before the FTT – and so should extend only to the items listed in excepted item 5 and not to other ingredients that are derived from potatoes (FTT [19]). Nonetheless, the FTT expressed the view that that phrase was intended to catch products with "a significant potato content". It should not be read as precluding other ingredients made from items derived from potatoes (FTT [19]).
(3) The use of the word "or" in the phrase "made from the potato, or from potato flour, or from potato starch" was "not intended to exclude products which contain more than one of the potential potato-related ingredients; the purpose of the legislation is clearly to include products which have one or more substantial potato-related elements" (FTT [24]).
(4) It was therefore necessary to consider the potato-based ingredients in the aggregate when determining whether a product was "made from the potato, or from potato flour, or from potato starch" for the purposes of excepted item 5 (FTT [25]).
(5) Sensations Poppadoms contained approximately 40% potato-derived ingredients (potato granules, potato starch and modified potato starch) (FTT [23]), which was "more than enough" potato-based content for it to be reasonable to conclude that they fell within excepted item 5 as being "made from the potato… or from potato starch" (FTT [26]).
(1) the marketing material, which showed Sensations Poppadoms being eaten in settings not dissimilar to those in which one would expect to find potato crisps (FTT [34]);
(2) the packaging - Sensations Poppadoms were sold in "sharing bags" similar to some potato crisps and the packaging was "consistent with" other products in the same range, which included potato crisps (FTT [37]-[38]);
(3) that the products were called "poppadoms" rather than crisps – although the FTT gave no weight to this factor (FTT [39]);
(4) that Sensations Poppadoms were sold in thesnack
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food
aisles of major retailers together with potato crisps (FTT [40]);
(5) the appearance of Sensations Poppadoms, which the FTT considered to be visually similar to potato crisps (FTT [42]);
(6) the flavour, which the FTT did not consider to be a distinguishing feature (FTT [45]);
(7) the texture, which the FTT found was not "significantly different" from potato crisps (FTT [46]);
(8) the manufacturing process – the FTT did not afford "any particular weight" to the fact that the process involved deep-frying a dough pellet rather than deep-frying sliced potatoes (FTT [47]); and
(9) the ingredients – the FTT found that the potato content (potato granules and potato starch) had an effect on texture. It was also included for commercial reasons because it was cheaper than gram flour. The addition of gram flour did not affect the flavour (FTT [48]-[51]).
57. Balancing all of the factors, on balance, we consider that the products are similar to potato crisps. They are packaged and sold in a manner similar to potato crisps. Removing them from their packaging, we consider that their appearance and texture is similar to potato crisps. Given the predominance of the flavouring, we consider that taste is not a distinguishing factor.
58. Whilst the manufacturing process is different, we note that the statute envisages similarity encompassing products made of potato starch and flour which cannot be made in the same way as sliced potato crisps and, as such, we give little weight to this distinction.
59. Noting the contention that the potato content was included to make the product cheaper and that this was not true of potato crisps, we do not consider that this is a sufficient distinction to outweigh the overall perception of the products as being similar to potato crisps, particularly given the witness evidence that the potato content was also used to provide a more neutral flavour in preference to the flavour of the gram flour.
The Grounds of Appeal
(1) the FTT erred in its construction of excepted item 5 by applying a broad reading to excepted item 5 and treating products made from potato granules as falling within the item (Ground 1);
(2) the FTT erred in its construction of excepted item 5 in finding that Sensations Poppadoms were made from "the potato" (Ground 2);
(3) the FTT erred in its application of the test of whether Sensations Poppadoms were "similar products" by asking itself whether the products were "not dissimilar to" potato crisps (Ground 3);
(4) the FTT fell into error by failing to give any weight in its multifactorial assessment to the fact that Sensations Poppadoms were called "poppadoms" (Ground 4);
(5) the FTT fell into error by failing to give any weight in its multifactorial assessment to the specific flavours of Sensations Poppadoms (Ground 5);
(6) the FTT erred by failing to give any weight in its multifactorial assessment to the inclusion of gram flour as an ingredient (Ground 6);
(7) the FTT misapplied the legal test and failed to give any weight to the manufacturing process for Sensations Poppadoms which distinguished them from potato crisps (Ground 7); and
(8) the FTT fell into error by ignoring fundamental differences between poppadoms and crisps (Ground 8).
Issues of interpretation
Ground 1 – does the term "the potato" include potato granules?
The parties' submissions in outline
(1) The expression "made from the potato, or from potato flour, or from potato starch" must be given a restricted meaning. The principle of construction encapsulated in the expression "expressio unius est exclusio alterius" applied. The effect was that excepted item 5 was restricted to products made from the specific ingredients referred to in the list in excepted item 5, that is, from the potato, potato flour or potato starch. It did not extend to products made from other ingredients derived from potato, such as potato granules.
(2) Furthermore, the FTT was wrong to find that "potato granules" were included within the words "the potato".
(a) The words "the potato" could not be intended to include every ingredient derived from potato – if so, the references to "potato flour" and "potato starch" in excepted item 5 would be redundant.
(b) The construction adopted by the FTT also ignored the use of the definite article, "the", before "potato" in excepted item 5. The words "the potato" properly extended to the use of sliced potato in the manufacture of potato crisps, but could not extend to products made from ingredients derived from potato, such as potato granules, which were pieces of potato that had been cooked and then dried, before being used to create dough pellets, which were then fried.
(3) On that basis, the only relevant "potato content" was potato starch which accounted for only 17%-18% of the ingredients for Sensations Poppadoms.
(1) On the ordinary meaning of the words, the term "the potato" was wide enough to include potato granules. The FTT was correct to find that it did. There was no sensible distinction to be made between products made from slices of potato and products made from granules of potato in this regard.Walkers
had failed to explain why the words "the potato" could extend to slices of potato, but not granules of potato.
(2) Ms McGowan also criticisedWalkers'
reliance on the "expressio unius" principle. That principle was only one canon of construction; it should only apply where it was not outweighed by other interpretative factors (Bennion, Bailey and Norton on Statutory Interpretation at 23.13). In the present case, there was no need for a specific reference to potato granules in excepted item 5 because they were already included by the term "the potato".
Discussion
Ground 2 – were Sensations Poppadoms "made from" the potato… or from potato starch?
The parties' submissions in outline
(1) The level of "qualifying" potato content in Sensations Poppadoms was only 17-18%.
(2) That level of qualifying potato content was not sufficient to justify a conclusion that Sensations Poppadoms were made from the potato, potato flour, or potato starch. In P&G, the level of potato content (potato flour) in Pringles was approximately 42% (P&G [3]). Mr Schofield submitted that P&G was a "borderline" case. The level of qualifying potato content in Sensations Poppadoms was much lower than the potato content of Pringles in P&G. In United Biscuits (UK) Limited v HMRC [2011] UKFTT 673 (TC) ("United Biscuits"), the FTT had decided that products called "Discos" and "New Recipe Frisps", which had a potato content of approximately 27%, were not made "from the potato, or from potato flour, or from potato starch". The FTT had not referred to United Biscuits in its decision.
(3) There were five main ingredients in Sensations Poppadoms. None of those ingredients predominated. Potato starch was not the largest single ingredient. Nor was it the "defining and essential" ingredient (United Biscuits [30]).
(4) The evidence showed that the potato content in Sensations Poppadoms was added for commercial reasons – it was cheaper than gram flour – and to neutralize the flavour. It could not be the defining and essential ingredient in Sensations Poppadoms in such circumstances.
(5) The essential characteristics of Sensations Poppadoms were not provided by the potato content. The essential ingredient was gram flour. It was the ingredient that was most commonly associated with poppadoms. A typical consumer would not describe Sensations Poppadoms as being made from potato.
(1)Walkers'
argument was, in essence, that the FTT's conclusion ignored the presence of rice flour and, in particular, gram flour in the ingredients for Sensation Poppadoms. However, the FTT made no error of law in finding that Sensation Poppadoms were made from potato despite the rice flour and gram flour content.
(2) There was no particular level of potato content that was required in order for a product to be regarded as made from potato (referring to P&G [26]-[27], [30]-[31], [34], [55], [58], [78]-[79]).
(3) It was possible for a product which was made from two or more ingredients to be regarded as "made from" one of them (United Biscuits [30]). It was a question of fact and degree.
(4) The FTT did not err in law in not referring to the decision of the FTT in United Biscuits. That decision was not binding on the FTT in this case and was a decision on the facts of the case.
(5) In any event, to the extent that the decision of the FTT in United Biscuits suggested that Sensations Poppadoms could only be treated as made from the potato if potato was the "defining and essential ingredient", it was wrong and the approach of the FTT in this case was to be preferred.
(6) On the facts of this case, the FTT was entitled to conclude that Sensations Poppadoms were made from the potato and potato starch: the potato content of Sensation Poppadoms (potato granules and starch) was approximately 40%; and the potato content was substantially larger than the next largest ingredient (oil) or the next largest dry ingredient.
Discussion
… it is vital to recall why the Tribunal was required in the first place to answer the question whether the goods in question are "made from" the potato. It was not in answer to a scientific or technical question about the composition of Regular Pringles, or in response to a request for a recipe. It was for the purpose of deciding whether the goods are entitled to zero rating. On this point the VAT legislation uses everyday English words, which ought to be interpreted in a sensible way according to their ordinary and natural meaning. The "made from" question would probably be answered in a more relevant and sensible way by a child consumer of crisps than by afood
scientist or a culinary pedant…
The multifactorial assessment
The parties' submissions in outline
Ground 4
Ground 5
Ground 6
Ground 8
Discussion
57. Balancing all of the factors, on balance, we consider that the products are similar to potato crisps. They are packaged and sold in a manner similar to potato crisps. Removing them from their packaging, we consider that their appearance and texture is similar to potato crisps. Given the predominance of the flavouring, we consider that taste is not a distinguishing factor.
58. Whilst the manufacturing process is different, we note that the statute envisages similarity encompassing products made of potato starch and flour which cannot be made in the same way as sliced potato crisps and, as such, we give little weight to this distinction.
59. Noting the contention that the potato content was included to make the product cheaper and that this was not true of potato crisps, we do not consider that this is a sufficient distinction to outweigh the overall perception of the products as being similar to potato crisps, particularly given the witness evidence that the potato content was also used to provide a more neutral flavour in preference to the flavour of the gram flour.
(1) Ground 4: As regards the weight to be given to the name or description given to the product as part of the multifactorial assessment, we acknowledge Mr Schofield's criticisms of the FTT's references to "Hula Hoops" and "Monster Munch" (at FTT [39]). They are brand names and clearly of no relevance to the multifactorial assessment. We agree with him that the FTT appears to have treated the reference to "Poppadoms" in the labelling of the product as a brand or trade name rather than as a customary name.
That having been said, the question for the FTT was whether Sensations Poppadoms are similar to potato crisps; not whether they are poppadoms. In that context, the customary name of a product is of limited relevance. The fact that a product might customarily be called a "poppadom" does not in principle prevent it from also being similar to a potato crisp.
(2) Ground 5: In relation to the flavours of Sensations Poppadoms, we again acknowledge Mr Schofield's points that some of the flavours to which the FTT referred in the FTT Decision were not in evidence before the FTT. However, as Ms McGowan pointed out, the essential point was that the range of flavours in which potato crisps were available was very diverse. On that basis, the FTT concluded that flavours of Sensations Poppadoms were not a distinguishing feature. In our view, that was not an unreasonable conclusion for the FTT to reach.
(3) Ground 6: As regards the submission that the FTT conflated the ingredients with their taste and so failed to give appropriate weight to the inclusion of gram flour as an ingredient in Sensations Poppadoms, once again, we agree with Ms McGowan. The FTT considered arguments concerning the addition of gram flour and its effect on the taste and texture as part of the multifactorial assessment (FTT [50]-[51]). In the context of a multifactorial assessment of the similarity of the products to potato crisps, in our view, that was not an unreasonable approach as those were the features most likely to distinguish the products from crisps.
(4) Ground 8: As to the final ground of appeal, as with the FTT, we were not convinced of the relevance of the survey evidence. We accept that poppadoms may be a distinct product from potato crisps; that they may be viewed as such by some consumers, and that a typical consumer may regard Sensations Poppadoms as poppadoms and not crisps. However, as the FTT identified (FTT [54]), the question is not whether the products are similar to poppadoms, it is whether they are similar to potato crisps. The products may be similar to poppadoms, but that does not prevent them from being similar to potato crisps.
We also acknowledge that the HMRC website (VFOOD8160) shows poppadoms as a separate product from potato crisps and as zero-rated. However, we agree with Ms McGowan, that this is likely to be a reference to traditional poppadoms made for the purpose of eating with a meal and made to a traditional recipe (i.e. primarily from gram flour). It does not affect the question as to whether Sensations Poppadoms should be treated as similar to potato crisps.
Disposition
Costs
Note 1 In this decision notice, we refer to paragraphs in the FTT Decision in the format “FTT [xx]”. [Back] Note 2 For example, Torq Limited v Commissioners of Customs & Excise (Decision 19389), WM Morrison Supermarkets Limited v HMRC [2021] UKFTT 106 (TC), DuelFuel Nutrition Limited v HMRC [2024] UKFTT 104 (TC) [Back]