BIM75735 - Trading losses: restriction of relief: uncommercial losses sustained in early years of trade
ICTA88/S381 (4) excludes from relief losses sustained in the
early years of a trade in circumstances akin to those in
ICTA88/S384 (uncommercial trades -
BIM75700 onwards).
Where you are satisfied that the activity has the character
of a sideline or hobby which is not being carried on a commercial
basis and the prospect of a profit within a reasonable time is
remote, you should challenge the claim to the relief. A
’reasonable time' should be interpreted by reference to the
particular circumstances, especially the nature of the business
undertaken. In general, it would be a fairly short period of say a
year or so.
The test of commerciality (for a fuller discussion of
commerciality see
BIM75705) may be failed for a period
that may not cover the whole of a year of assessment. Where there
are losses relating to a part of a year of assessment during which
the test is satisfied, relief may be allowed for them even if the
test is failed for the remainder of the year.
If, having established the facts, you consider that the
activity is precluded from relief for losses because of ICTA88/S381
(4), you should make a full report to CT&VAT (Technical) before
listing the case for hearing by the Commissioners.
Situations which would give cause for enquiry include:
- Where the recurring costs of production are clearly not
recoverable from sales.
- Where the overhead expenses claimed (often largely the private car and part of the household expenses) are clearly out of proportion to the anticipated revenue.
In general, if the challenge is successful under ICTA88/S381 (4), it should be contended that ICTA88/S384 also applies but it should not be overlooked that there are differences in the two tests.
