Raymond Yeung Tax Consultant former Assessor of Inland Revenue Department 前稅局評稅主任楊輝洪

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Can "disposal of a property" constitute a trade?

In deciding whether the profit from disposal of a property is taxable, we  have to ascertain what the vendor's intention towards the property at the time of acquisition was --- was it acquired with an intention of resale? or was it acquired for use as a residence? or as a long term investment? 

In deciding whether a trade existed, it is the intention of the vendor that matters. 

In the case Cunliffe v. Goodman (1950) the judges said :- 

"It is clear that the intention which must prove against the landlord is a definite intention.  This intention may be revocable, but it must not be provisional… 

Not merely is the term 'intention' unsatisfied if the person professing it has too many hurdles to overcome, or too little control of the events: it is equally inappropriate if at the material date that person is in effect not deciding to proceed but feeling his way and reserving his decision until he shall be in possession of financial data sufficient to enable him to determine whether the project will be commercially worthwhile. 

A purpose so qualified and suspended does not in my view amount to an 'intention' or 'decision' within the principle.  It is mere contemplation until the materials necessary to a decision on the commercial merits are available and have resulted in such a decision.  In the present case it seems to me that .... she never reached, in respect of the first scheme, a stage at which she could decide on its commercial merits; nor, in respect of the second scheme, the stage of actually deciding that scheme was commercially eligible - unless indeed she must be taken not merely to have repudiated her architect's authority but to have decided that it was commercially ineligible.  In the case of neither scheme did she form a settled intention to proceed.  Neither project moved out of the zone of contemplation - out of the sphere of the tentative, the provisional and the exploratory - into the valley of decision."

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