[2025] UKUT 061 (AAC)

The Tribunal didn’t engage with JW v HMRC, which was cited by both parties in their submissions, but it identified several factors that it considered relevant to whether the claimant’s trading activity was “on a commercial basis”:

Had the Tribunal made express reference to JW v HMRC and the factors that Judge Poole QC identified as being relevant to the issue of “commerciality”, that would certainly have improved its reasons, but I am not persuaded that the Tribunal’s failure to say in terms how it applied the Upper Tribunal’s decision in JW v HMRC indicates that it made its decision in ignorance of that authority, or that it renders the Tribunal’s reasons inadequate. On a proper reading Judge Poole QC’s list of relevant factors (see paragraph [25.4] of JW v HMRC) is illustrative rather than prescriptive. Whether those factors are relevant to a particular case will depend on the particular facts of that case. If, for example, an enterprise does not employ advertising, that will not necessarily mean that it is not operated “on a commercial basis”. It is just one of a number of factors that may be relevant.

The factors identified by Judge Hobbs are consistent with those identified by Judge Poole QC (albeit that not all the factors identified by Judge Poole QC are addressed). Taken together, the factors that Judge Hobbs identified were capable of supporting the Tribunal’s conclusion that the claimant’s futures trading wasn’t “on a commercial basis”.