Andrew Macnab, representing HMRC, successfully defends Marks & Spencer’s appeal over VAT on “Dine In for Two for £10 with Free Wine” promotion

27 Jun 2019 | by Monckton Chambers

Marks & Spencer plc v HM Revenue and Customs [2019] UKUT 0182 (TCC), 27 June 2019

The Upper Tribunal has dismissed Marks & Spencer’s appeal against the decision of the First-tier Tribunal [2018] UKFTT 238 (TC). Marks & Spencer’s appeal concerns the correct VAT treatment of its “Dine In for Two for £10 with Free Wine” promotion. The promotion allowed a customer to choose three food dishes on payment of £10 and obtain a bottle of wine (or other non-alcoholic beverage) which was described as being provided “free”. The Upper Tribunal, upholding the First-tier Tribunal, decided that, under the promotion, the customer paid £10 in order to receive the three food items (all zero-rated) and the wine (standard rated), with the result that the £10 consideration must be allocated across all four items for VAT purposes, not just across the three food items, as Marks & Spencer contended.

Andrew Macnab represented HMRC in the First-tier Tribunal and the Upper Tribunal.

Read the full decision here.