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HMRC internal manual

Business Income Manual

Meaning of trade: general: recent views

The following guidance on the meaning of trade comes from Ransom v Higgs [1974] 50TC1.

The case concerns a tax avoidance device, which the Crown sought to counter by showing that the taxpayer was trading so that the surplus from certain property transactions was treated as a trading receipt rather than as, what was at the time, a non-taxable capital gain.

Lord Reid said at page 78I:

‘As an ordinary word in the English language “trade” has or has had a variety of meanings or shades of meaning. Leaving aside obsolete or rare usage, it is sometimes used to denote any mercantile operation, but it is commonly used to denote operations of a commercial character by which the trader provides to customers for reward some kind of goods or services. The contexts in which the word “trade” has been used in the Income Tax Acts appear to me to indicate that operations of that kind are what the legislature had primarily in mind.’

Lord Morris at page 84H said first:

‘To be engaged in trade or in an adventure in the nature of trade surely a person must do something, and if trading he must trade with some one’.

He then quoted with approval the comments of Lord Clyde in CIR v Livingston [1926] 11TC at page 542:

‘I think the test, which must be used to determine whether a venture such as we are now considering is, or is not, “in the nature of ‘trade,’ is whether the operations involved in it are of the same kind, and carried on in the same way, as those which are characteristic of ordinary trading in the line of business in which the venture was made”.’

Lord Wilberforce at page 88E said:

‘”Trade” cannot be precisely defined, but certain characteristics can be identified which trade normally has. Equally some indicia can be found which prevent a profit from being regarded as the profit of a trade. Sometimes the question whether an activity is to be found to be a trade becomes a matter of degree, of frequency, of organisation, even of intention, and in such cases it is for the fact-finding body to decide on the evidence whether a line is passed… Trade involves, normally, the exchange of goods or of services for reward-not of all services, since some qualify as a profession or employment or vocation, but there must be something which the trade offers to provide by way of business. Trade, moreover, presupposes a customer (to this too there may be exceptions, but such is the norm), or, as it may be expressed, trade must be bilateral-you must trade with someone. … Then there are elements or characteristics which prevent a trade being found even though a profit has been made-the realisation of a capital asset, the isolated transaction (which may yet be a trade)’.

Thus a trade, in the unextended meaning of the word, is carried on where the purchase (or production) and sale of goods or the performance of services is carried on habitually and with a view to profit. This is particularly so where the goods or services are dealt with or provided in the same commercial way as a trader or professional admittedly in that line of business would adopt.

But these comments do not provide inflexible rules or strict guidelines. Whether or not a trade exists is primarily a question of fact (see BIM20070). The decision as to whether there is a trade in any particular case will depend on an evaluation of all the facts and circumstances of that case, including the weighting to be given to each of those facts and circumstances. In Marson v Morton and Others [1986] 59TC381 the vice-chancellor stated at page 391:

‘It is clear that the question of whether or not there has been an adventure in the nature of trade depends on all the facts and circumstances of each particular case and depends on the interaction between the various factors that are present in any given case’.