BIM62201 - Measuring the profits (particular trades): Moneylenders: whether a trade

Not everybody who makes loans is carrying on a trade of moneylending. Lending money at interest is normally an investment and any interest received is taxable as savings income. For companies, such income is taxed under the loan relationship rules; see CFM30100 onwards.

Whether the making of loans amounts to trade is essentially a question of fact and there has to be sufficient evidence of trading to displace the investment presumption. The most useful test in this context is that set out in CIR v Livingstone and Others [1926] 11TC538 at page 452:

`…whether the operations involved…. are of the same kind, and carried on in the same way, as those which are characteristic of ordinary trading in the line of business in which the venture was made’.

So the degree of organisation is important. To see whether a trade exists or not, it is necessary to compare the way in which advances are made, repayments collected and documents produced with the way a bank or finance house would organise these activities. A commercial lender issues documents detailing the amount lent, interest and repayment terms and what will happen in case of default. A commercial lender will also collect payments systematically and will actively pursue late payers, for example by using debt collection agencies and lawyers.

The number of lending transactions is also significant. A commercial money lender normally has a substantial number of loans to different borrowers on the books. This ensures that profits on performing loans can cover losses on non-performing loans.

Further guidance can be found as to what sort of organisation might be involved in the description of the appellant’s moneylending business at pages 313-315 in the case of Monthly Salaries Loan Co Ltd v Furlong [1962] 40TC313.

Another useful pointer in considering if someone who makes loans is trading as a moneylender is whether an application for authorisation under the Consumer Credit Act 1974 has been made to the Financial Conduct Authority. Further information on when authorisation to carry on regulated consumer credit activities is likely to be required can be found on the Financial Conduct Authority website.

For lending of money as part of, or ancillary to, another trade, see BIM40800 onwards.