“… a person who is gainfully employed in Great Britain otherwise than in employed earner’s employment (whether or not he is also employed in such employment)”
“‘employment’ includes any trade, business, profession, office or vocation and ‘employed’ has a corresponding meaning.”
“… if you set on foot an organised seeking after emoluments which are not in themselves profits, you may create, by way of a trade or an adventure or a vocation a subject-matter which does bear fruit in the shape of profits or gains. A different conception arises, a conception of a trade or vocation which differs in its nature, in my judgment, from the individual acts which go to build it up, just as a bundle differs from odd sticks.”
“13. … The most familiar instance was a trade which has as its object the securing of a capital increment. Selling an object for more than one has bought it is not a profit or gain for income tax purposes. (That is why, many years later, we now have a gains tax). But someone who does so on a regular basis may earn profits which are taxable not as profits of a transaction but as profits of a trade. The same is true of profits made from contracts for differences. Similarly finders of objects are not taxable but a person who starts a salvage or exploring undertaking may make profits. They are not profits of the findings but profits of the adventure as a whole. If he makes a loss, the loss is not due to the failure to find but to the trade: ‘That is a good test, because it shows the difference between the trade as an organism and the individual acts’ (page 41). The thing about obtaining profits on contracts for differences or obtaining things which are the subject of finding is that there is an ‘element of fecundity’ about them. All this is no doubt all elementary to a tax lawyer. 14. Rowlatt J then distinguished the case of the bookmaker who is (page 42): “… organising an effort in the same way that a person organises an effort if he sets out to buy himself things with a view to securing a profit by the difference in their capital value in individual cases.”
‘These are mere bets. Each time he puts on his money at whatever may be the starting price. I do not think he could be said to organize his effort in the way as a bookmaker organises his, for I do not think the subject matter from his point of view is susceptible of it. In effect all he is doing is just what a man does who is a skilful player at cards, who plays every day. He plays to-day, and he plays to-morrow, and he plays the next day, and he is skilful on each of the three days, more skilful on the whole than the people with whom he plays, and he wins. But it does not seem that one can find, in that case, any conception arising in which his individual operations are merged in the conception of a trade. I think all you can say of that man, in the fair use of the English language, is that he is addicted to betting. It is extremely difficult to express, but it seems to me that people would say he is addicted to betting, and could not say that his vocation is betting. The subject is involved in great difficulty of language, which I think represents great difficulty of thought. There is no tax on a habit. I do not think ‘habitual’ or even ‘systematic’ fully describes what is essential in the phrase ‘trade, adventure, employment, or vocation’
“The Court of Appeal in Hakki held that on the facts as found by the First-tier Tribunal in that case ‘the only possible conclusion’ was that the father was not gainfully employed as a self-employed earner (paragraph 21). That is not the case here. The Court of Appeal had endorsed Judge Mesher’s approach to the law in his first decision… and, whether or not the First-tier Tribunal knew of the Court of Appeal’s decision, its own decision was consistent with it. It was entitled to find the facts that it found, for the reasons that it gave and, on the basis of those facts, to reach the conclusion that it reached and to make the orders that it made.”