Hot and cold take-away food: liability of hot and cold food sold as a single item
Where an item consists of both hot and cold products but is essentially hot take-away food the whole supply is standard-rated. Examples are:
- hot dogs;
- fried egg or bacon sandwiches or rolls; and
- baked potatoes with a cold filling.
Condiments which the trader or the customer uses on the food sold should be ignored.
The pre 2012 case of Domino’s Pizza Group Ltd (LON/02/0527) supported Customs’ stance on single supplies of hot food with cold ancillary items. In this tribunal, the trader argued that small portions of cold dips sold with such hot items as chicken strips, pizzas and potato wedges, should be a separate zero-rated supply (therefore overall a mixed supply of standard-rated hot food and zero-rated cold dip).
Customs maintained that the dips were ancillary to the supply of hot food and that this was a single standard-rated supply of hot take-away food. The tribunal dismissed the company’s appeal, holding that the hot food was the principal element of the supply and the dips were merely ancillary (relying on the application of the Card Protection Plan (ECJ Case C-349/96) decision).
The 2012 changes to the VAT law provide clarity. ‘Hot food’ means food which (or any part of which) is hot at the time it is provided to the customer and also meets with any of the 5 new tests.