BIM20215 - Trade: badges of trade: profit seeking motive: not main purpose

A trade may be carried on for tax purposes even though there is no intention to make a profit. Once a trade is held to be carried on, there is liability to tax on any resulting profits irrespective of whether the trading activities were directed to the making of a profit.

In CIR v The Stonehaven Recreation Ground Trustees [1929] 15TC419 The Lord President said at page 425:

" The object of the (trustees) was… never intentionally commercial, but was to provide an attraction to the town… But the question whether the trust carries on a "concern in the nature of trade’'… is a question which is not simply dependent on what may have been the motives of those who promoted the recreation ground, nor even on the general objects of the trust. It depends rather on what the trust actually does, and on the practical effect of what it does".

The point was put neatly in the early case of CIR v The Incorporated Council of Law Reporting [1888] 3TC105 at page 113 as:

“It is not essential to the carrying on of trade that the people carrying it on should make a profit, nor is it even necessary to the carrying on of trade that the people carrying it on should desire or wish to make a profit. The definition of trade, though it is perfectly true that trade, it may be in ninety-nine cases out of one hundred, does as a matter of fact include the idea of profit, yet the mere word "trade’' does not necessarily mean profit to be made by the seller to the buyer, or by the buyer from the seller, not at all”.

See also Carnoustie Golf Club Committee v CIR [1929] 14TC498.

It follows that where trading operations are carried on habitually on commercial lines the motive, and therefore the existence of a trade, may be presumed.

In Grove v YMCA 4TC613 the Association carried on a profit making public restaurant on the usual commercial principles, while at the same time it ran educational classes and a gymnasium which were organised so as not to cover their expenses. The latter were therefore not trades, but the restaurant, despite the fact that it would be carried on even if it made a loss, was a trade within Schedule D.

See also Royal Agricultural Society of England v Wilson [1924] 9TC62.