BIM20070 - Trade: general: question of fact for Commissioners/Tribunal

The question whether a trade exists is primarily a question of fact. The function of the appeal Commissioners/Tribunal is to find the primary facts and decide the 'trade' issue on the basis of those facts.

The conclusion that there is, or is not, a trade is itself a finding of secondary fact from the primary facts. The Commissioners/Tribunal decision on the existence of a trade cannot normally be upset because an appeal to the courts can only succeed on a point of law. However it is a question of law whether there is any evidence to justify the conclusion of fact. The courts can therefore over turn the Commissioners'/Tribunal’s decision if:

• the Commissioners Tribunal acted without evidence, or
• they could not reasonably have reached the decision from their finding of primary facts.