Interpreting exceptional VAT legislation: or, are there principles in Pringles?

Abstract

John F. Avery Jones famously argued in 1996 that principles-based interpretation and drafting of tax legislation offered the opportunity to have less detailed rules, supported by legislated principles, without a loss of certainty, and used the operation of the EU VAT system in the UK as an example. Following the recent Procter & Gamble (UK) v HMRC case on the VAT classification of Pringles, this article explores what happens when we encounter rules that operate outside the scope of such principles. We also find that the UK and German rules classifying food types are strikingly different. If such rules may lack any obvious principled basis, must we simply interpret all such provisions on a plain-meaning basis? In fact, there are interesting possible approaches to the interpretation of such rules. First, the principles, outside of which they lie, may offer more guidance than initially appears, especially in a strongly principled environment like VAT. Secondly, many apparently vague rules, which Kaplow would call ex-post specified “standards”, contain semantically rich and well-understood concepts. As the Pringles case shows, such semantic rules can offer more certainty when applied directly, than by trying to extract from them specific tests through elaborate and reductive legal reasoning