“operations of a commercial nature by which the trader provides to customers for reward some kind of goods or services”
“When the commissioners, having found the so-called primary facts which are stated in paragraph 3 of their case, proceed to their finding in the supplemental case that ‘the transaction, the subject-matter of this case, was not an adventure in the nature of trade’, this is a finding which is in truth no more than an inference from the facts previously found. It could aptly be preceded by the word ‘therefore’. Is it, then, an inference of fact? My Lords, it appears to me that the authority is overwhelmingly for saying that it is… Yet it must be clear that to say that such an inference is one of fact postulates that the character of that which is inferred is a matter of fact. To say that a transaction is or is not an adventure in the nature of trade is to say that it has or has not the characteristics which distinguish such an adventure. But it is a question of law, not of fact, what are those characteristics, or, in other words, what the statutory language means…” 7 In Griffiths v JP Harrison (Watford) Ltd (above), where once again the issue was whether the taxpayer company was trading, Lord Reid referred to Edwards v Bairstow and continued: “Where, as in this case, the question is a question of fact, that means that the decision of the commissioners cannot be reviewed by the court. But if a decision of any tribunal on a question of fact is unreasonable, looking to the facts on which it is based, the court can and must intervene. The question in this case is therefore, not whether the commissioners were wrong, but whether their decision was unreasonable.”
“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 of 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)… Although these are general characteristics which one cannot state in terms of essential prerequisites, they are useful benchmarks, so when one is faced with a novel set of facts, as we are here, the best one can do is to apply them as tests in order to see how near to or far from, the norm these facts are.”