First question – are you buying these from a UK VAT registered supplier? If so, I would follow the same VAT treatment as your supplier has.
But if you’re either the manufacturer or importer, you’ll need to determine the liability. I would start with the law – which is even vaguer than the guidance! Item 1, group 16, schedule 8 of the VAT Act simply zero rates “Articles designed as clothing or footwear for young children and not suitable for older persons.”. The strict test is whether your product would be considered to be “designed as clothing”.
HMRC have guidance in paragraph 2.2.1 of public Notice 714 (https://www.gov.uk/guidance/vat-on-young-childrens-clothing-and-footwear-notice-714#section2) and in their internal manual VCLOTHING2400 (https://www.gov.uk/hmrc-internal-manuals/vat-clothing/vclothing2400). The internal manual focusses on two cases from the 1970’s which considered the function of the item to be the important factor.
You mention the Snugglebundl tribunal (https://financeandtax.decisions.tribunals.gov.uk/judgmentfiles/j8188/TC04209.pdf). Although as a first tier tribunal case it doesn’t set a precedent, it’s useful as it’s far more recent while still considering the earlier decisions in the analysis.
Obviously you’re best placed to know the product itsef, and may have other relevant material (e.g. how it is marketed, what brief was given to the designer, etc.). If having considered both pieces of HMRC guidance you’re still unclear of how they’d view it, you’ve got two options:
- You could reach a view by applying the principles set out in the Snugglebundl decision. If you believe that zero rating does apply, make sure that you fully document your reasoning – as this will help protect against a penalty should HMRC later disagree with your view.
- You could request a “non-statutory clearance” from HMRC (https://www.gov.uk/guidance/non-statutory-clearance-service-guidance). This will take much longer, but will give you a formal ruling that you can rely on.
In my opinion, the option to take depends on the significance of the amounts involved and degree of uncertainty after considering the HMRC guidance.