Neutral Citation Number: [2014] EWCA Civ 530

Case No: C3/2013/2612
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
JUDGE MESHER

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday 25th April 2014
Before:

THE RIGHT HONOURABLE LORD JUSTICE LONGMORE
THE RIGHT HONOURABLE LORD JUSTICE PATTEN
and
THE RIGHT HONOURABLE LORD JUSTICE PITCHFORD
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Between:

	HAKKI HAKKI	Appellant	
	- and -		
	1)	SECRETARY OF STATE FOR WORK AND PENSIONS
2)	MRS DEVRISE BLAIR	Respondents	
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Mr Martin Henley (instructed by Mr Hakki) for the Appellant
Mr Tim Buley (instructed by The Treasury Solicitor) for the First Respondent
Mr Stephen Bartlet-Jones (instructed by Wilsons Solicitors LLP) for the Second Respondent
Hearing dates: 25th March 2014

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Judgment
Lord Justice Longmore: 
Introduction
1.	The appellant is a professional poker player in the sense that he supports himself from his winnings at poker.  He declines to support his children and the mother has made an application to the Child Support Agency for an order that he pay child support maintenance.  He opposes the application on the ground that his poker winnings do not constitute “earnings” from gainful employment.  This depends on the true construction of the Child Support (Maintenance Assessment and Special Cases) Regulations 1992 which I shall call “the MASC Regulations” and, in particular, Schedule 1 of those Regulations.  On 28th May 2009 a First Tier Tribunal decided that the appellant’s winnings came within paragraph 15 of that Schedule.  On appeal to the Upper Tribunal Judge Mesher decided on 3rd February 2011 that the First Tier Tribunal was wrong so to hold and there is no dispute about that part of his decision.  Judge Mesher went on to hold that, depending on the facts, the appellant could be said to be “gainfully employed” as a “self-employed earner” and therefore be obliged to make maintenance payments on that basis.  He therefore remitted the case to the First Tier Tribunal to establish whether that was indeed the position.  By a decision of 28th June 2012 the First Tier Tribunal made findings of fact and held that the appellant was indeed liable to make maintenance payments as envisaged by Judge Mesher.  The appellant appealed that decision and Judge Mesher decided on 7th August 2013 that the First Tier Tribunal had correctly made an assessment.  There is now an appeal to this court which is effectively an appeal against both the reasoning contained in Judge Mesher’s first decision of 3rd February 2011 and the outcome of his second decision.
Legislation
2.	Regulation 1(2) of the MASC Regulations provides that a self employed earner has the same meaning as in Section 2(1)(b) of the Contribution and Benefits Act.  That is a reference to the Social Security Contributions and Benefits Act 1992 (“the 1992 Act”) which provides:-
“2. Categories of earners
1)	In this Part of this Act and Parts II to V below –
a)	“employed earner” means a person who is gainfully employed in Great Britain either under a contract of service, or in an office (including elective office) with general earnings; and
b)	“self-employed earner” means 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).
…
122.	 Interpretation of Parts I to VI and supplementary provisions
1)	In Parts I to V above and this Part of this Act, unless the context otherwise requires –
…
“employment” includes any trade, business, profession, office or vocation and “employed” has a corresponding meaning.”
3.	Regulation 7 provides that the starting point for calculating an absent parent’s net income is the amount of any earnings of the absent parent determined in accordance with Part I of Schedule I.  Chapter 1 of Part I deals with earnings from employment and Chapter II deals with earnings from self-employment.  Chapter II relevantly provides:-
“2A.
1)	Subject to paragraphs 2C, 4 and 5A, “earnings” in the case of employment as a self-employed earner shall have the meaning given by the following provisions of this paragraph.
2)	“Earnings” means the taxable profits from self-employment of that earner, less the following amounts –
a)	any income tax relating to the taxable profits from the self-employment determined in accordance with sub-paragraph (3);
b)	any National Insurance Contributions relating to the taxable profits from the self-employment determined in accordance with sub-paragraph (4);
c)	one half of any premium paid in respect of a retirement annuity contract or a personal pension scheme or, where that scheme is intended partly to provide a capital sum to discharge a mortgage or charge secured upon the self-employed earner’s home, 37.5 per centum of the contributions payable.
3)	For the purposes of sub-paragraph (2)(a) the income tax to be deducted from the taxable profits shall be determined in accordance with the following provisions –
a)	subject to head (d), an amount of earnings calculated as if it were equivalent to any personal allowance which would be applicable to the earner as if it were equivalent to any personal allowance which would be applicable to the earner by virtue of the provisions of Chapter 1 of Part VII of the Income and Corporation Taxes Act 1988 (personal relief’s) shall be disregarded;
b)	subject to head (c), an amount equivalent to income tax shall be calculated in relation to the earnings remaining following the application of head (a) (the “remaining earnings”);
c)	the tax rate applicable at the effective date shall be applied to all the remaining earnings, where necessary increasing or reducing the amount payable to take account of the fact that the earnings relate to a period greater or less than one year;
d)	the amount to be disregarded by virtue of head (a) shall be calculated by reference to the yearly rate applicable at the effective date, that amount being reduced or increased in the same proportion to that which the period represented by the taxable profits bears to the period of one year.
4)	For the purposes of sub-paragraph (2)(b) above, the amount to be deducted in respect of National Insurance Contributions shall be the total of –
a)	the amount of Class 2 contributions (if any) payable under section 11(1) or, as the case may be, (3), of the Contributions and Benefits Act; and
b)	the amount of Class 4 contributions (if any) payable under section 15(2) of that Act, at the rate applicable at the effective date.
5)	For the purposes of this paragraph, “taxable profits” means profits calculated in accordance with Part 2 of the Income Tax (Trading and Other Income) Act 2005.
6)	A self-employed earner who is a person with care or an absent parent shall provide to the Secretary of State on demand a copy of –
a)	any tax calculation notice issued to him by Her Majesty’s Revenue and Customs; and
b)	any revised notice issued to him by Her Majesty’s Revenue and Customs.
2C.
Where the Secretary of State accepts that it is not reasonably practicable for a self-employed earner to provide any of the information specified in paragraph 2A(6), “earnings” in relation to that earner shall be calculated in accordance with paragraph 3.
3.
1) Where paragraph 2C applies … “earnings” in the case of employment as a self-employed earner means the gross receipts of the employment…..”
The Findings
4.	The First Tier Tribunal (Social Security) made relevant findings in its decision of 28th June 2012 as follows:-
“11. Mr Hakki was a financial broker with a good income.  He was made redundant in 1998 when he was in his mid forties.  The decision under appeal was made nearly ten years later.  Apart from playing poker, he had not worked during that time and had no other source of income.  He is not a man of independent means.  His wife works as a hairdresser.
12. Mr Hakki has been playing poker for many years.  He appeared on a late night television programme about poker in about 2000/1.  He had a bit of coverage as a player for a few weeks.  He made the final and got a prize.  He has also appeared in magazines about poker.  He is known in the poker community as “Tony the Hitman Hakki”.
13. We asked about his activities for the years 2002 to 2006.  The situation was about the same throughout the period.  He played in casinos and in tournaments mainly in London, but all over the country and sometimes abroad.  He also played fairly regularly at a casino in Brighton.
14. Although he would like to play every day, allowing for occasional holidays and spreading it over the year he would play an average of 3 to 4 days a week.  This is at casinos and in tournaments.  He also played on line.  He used to do this quite a lot but in the later years it was not so often.
15. He would aim to arrive at the casino between 12 noon and 2 p.m.  He stays as long as it takes to achieve what he wants to achieve and his target is a couple of hundred pounds in a day.
16. There is a choice of games and a number of tables.  There are different choices of people to play with.  He would not want to play with people who are better than him.  He recognises some people.  If he suspects that there is a table that offers loose money he will choose that table.  Friends might tell him that there is a good table.  The stakes differ from £40 to thousands of pounds.  He bases his decision on whether or not he is likely to be paid.  An inexperienced gambler is more likely to pay him.  If he gets a bad hand, he can pass.  If he doesn’t play a hand he doesn’t lose, except a small sum for the right to play the game.  At times he might not play a hand in 2 to 3 hours.  Sometimes he would play nearly every hand.
17. In 2006 he had his own website with reviews and strategies for online poker (pages 80-81).
18. He has a “Player Profile” on the website pokerineurope.com with tournament results for the years 2002-2006 (pages 77-79).  His poker results for 2001-2007 were published on the website pokerpages.com with a “ProRank 2 Position: 4440” (pages 144-146).
19. On this evidence we find that, throughout the periods in question, Mr Hakki was self-employed as a poker player.  He was clearly exercising his skill and judgment and using his experience with a view to making a profit from these activities.  Poker is not the same as a simple bet or wager, it is not merely a question of chance.  There is a high element of skill.  Mr Hakki took an organised approach to earning money – choosing a location, setting a target sum, selecting the table which was most likely to pay him.  It does not matter whether you call it a trade, profession or vocation.  It was very much like a job – going out to work.  It was not just a hobby.  It was very different to the person who might gamble compulsively and indiscriminately.  Mr Hakki’s own website (page 80) reads “Raise your game online and at the tables with poker professional Tony Hakki.” (our emphasis).”
5.	The reference to Mr Hakki taking an “organised approach” to earning money in the last of these paragraphs stems from the fact that, in his first decision, Judge Mesher, in the course of allowing Mr Hakki’s appeal but remitting the case to the tribunal to make relevant findings of fact on the question whether Mr Hakki was a self-employed earner relied on a dictum of Rowlatt J in the income tax case which decided that winnings from gambling were not taxable, Graham v Green [1925] 2 K.B. 37, 40:-
“… 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.”
On these findings of fact the First Tier Tribunal proceeded to decide that Mr Hakki was a self-employed earner and that his income was £520 a week throughout the period in issue.
Submissions
6.	Mr Hakki has appealed on the grounds that he is not a self-employed earner within section 2 of the 1992 Act or regulation 1 of the MASC Regulations which he says must, in any event, be construed in conformity with the taxing statues, now the Income Tax (Trading and Other Income) Act 2005.  If there were any doubt about that, it is concluded by the fact that “earnings”, for the purpose of calculating an absent parent’s net income, are expressly stated to be the “taxable profits from self-employment” in regulation 2A (2) of the MASC Regulations.  Her Majesty’s Revenue and Customs have never taxed winnings made by gambling and, so, likewise, such winnings cannot be the subject of an application for child support maintenance under the Child Support Act.
7.	Rather worryingly, Mr Buley on behalf of the Secretary of State adopted the same position as Mr Hakki.  That left the mother in a most unenviable position.  She was not initially a party to the proceedings at all (as is usual in child support cases).  She has now been made second respondent and has (fortunately for us) been able to obtain pro bono assistance from Mr Bartlet-Jones of counsel.  We are most grateful to him for his careful submissions.  It turned out that Mr Hakki also had pro bono counsel, Mr Henley.  We are, of course, grateful to him also.
8.	It seems that in his original decision Judge Mesher may have felt that Mr Hakki’s tax position might have been irrelevant.  This was partly because the definition of employment in the 1992 Act is that employment “includes” any trade, business, profession, office or vocation while a taxpayer’s assessability under the taxing statutes has been and continues to be in respect of profits or gains “arising or accruing from any trade, profession, employment or vocation”.  The other reason might be that the definition of earnings in the MASC Regulations contemplates taxable profits being assessed by reference to tax calculation notices issued by Revenue and Customs to a self-employed earner but, if it is not reasonably practicable for a self-employed earner to provide any such tax calculation notice (which would be Mr Hakki’s position since he is not assessable to tax on his winnings), earnings are defined in para 3 of the MASC Regulations as “the gross receipts of his employment”.
9.	Mr Bartlet-Jones, however, made it clear in his submissions that it was no part of the mother’s case that the child support regime and the social security regime differed from the tax regime as far as self-employed earners were concerned.  For my part, I am sure he must be right about that.  No doubt Revenue and Customs are content with a regime that does not tax winnings from gambling as otherwise many a taxpayer might seek to set any gambling loss off against otherwise taxable profits or gains.  That may not be a direct concern in social security cases (or child support cases) but even so the Department of Work and Pension would probably not regard with equanimity a regime that entitled persons, who lose at gambling, to claim social security benefits for that reason.  On any view the child support regime is the same as the social security regime and, if the social security regime is the same as the tax regime, so must the child support scheme be the same as the tax regime.
10.	The essential submission of Mr Bartlet-Jones was that Mr Hakki had organised his activities in such a way that gambling was his trade or profession just as a sportsman might organise his activities.  Mr Hakki was a professional gambler just as much as a professional golfer or a professional tennis player made gains or profits from his professional activities.  He supported Judge Mesher’s reliance on the dictum of Rowlatt J to which I have referred and submitted that, in the light of the findings of the First Tier Tribunal, Mr Hakki was a self-employed earner; if that meant he was liable, in his case, to pay income tax on his winnings, so be it.  It was for the tribunal of fact to decide whether he was sufficiently organised to constitute a self-employed earner.  This court should not interfere with that finding or, more accurately, should not reverse Judge Mesher’s conclusion that he could not interfere with the First Tier Tribunal’s conclusion.
Relevance of degrees of organisation?
11.	Mr Buley and Mr Henley submitted that this was a red herring.  A mere gambler was not taxable; that was what had been decided in Graham v Green and no subsequent authority had departed from that decision of 1925.  It might be fair to say that Rowlatt J’s dictum was only part of a general introduction to the law about Case 2 of Schedule D, but it was clear that he did not think a gambler could ever have such a degree of organisation as would enable his winnings to be profits or gains arising from any trade, profession or employment.
12.	Mr Graham was a person who from his own home in Amersham betted on horses at starting prices; that was his only means of livelihood apart from some interest from a bank deposit.  The General Commissioners for the Burnham Division of Buckinghamshire decided that he was assessable to tax on his winnings.  Mr Barrington-Ward KC submitted on his behalf that no business or system could be constructed out of betting at starting prices; there was no capital and no evidence of continuity but merely individual bets.  A bookmaker was different because he bet on a system by adjusting the odds.  He was therefore liable to income tax on profits made from betting.  The Inland Revenue instructed the Solicitor-General (Sir Thomas Inskip) to defend the Commissioners’ decision.  He submitted that betting was (as found) Mr Graham’s livelihood; it was not done casually for amusement; it was a vocation resulting in profits or gains, the vocation of a backer of horses.
13.	Rowlatt J first decided that the winnings were not assessable under the catch-all provisions of Case 6 of Schedule D because the winning of a bet did not result in a profit or gain.  He then turned to the Revenue’s primary contention that the winnings were profits or gains arising or accruing from any trade, profession, employment or vocation under Case 2 of Schedule D.  At the very beginning of this consideration he made the observation cited above relied on by Judge Mesher and Mr Bartlet-Jones.  He was explaining that while a winning from a bet is not a profit or gain in itself, a person could set on foot an organised seeking after emoluments (which are not themselves profits) by creating a subject-matter which bears fruit in the shape of profits or gains.  But there would have to be a subject-matter which bears fruit – an organic whole not existing in its separate parts.  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.”
He then turned to the man who bets with the bookmaker and said:-
“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 organizes 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”.  All I can say is that in my judgment the income which this gentleman succeeded in making is not profits or gains, and that the appeal must be allowed, with costs.”
15.	Although this final paragraph concludes with a reference to Mr Graham himself, it is couched in terms of complete generality.  It is clear that Rowlatt J thought that the effort of a gambler is not “susceptible to organisation” in the same way that a bookmaker organises his effort.  If that is right an individual gambler, as such, cannot be taxable on his winnings.  The fact that many gamblers may have (or think they have) a system which results in their winning more often than losing cannot constitute a sufficient degree of organisation to constitute a trade, profession or vocation.
16.	This authority has now stood for many years and I would certainly not in 2014 wish to question it, even though it can be said that the Court of Appeal in Cooper v Stubbs [1925] 2 K.B. 723 left the matter open.
17.	Rowlatt J did not have to consider, however, a case of a gambler who could legitimately be said to be running a business.  A poker player who appeared regularly on television advising people how to play poker and received a fee for so doing would no doubt be taxable in respect of his fees because he would be engaging in a trade or profession.  If in the course of that business he also made winnings from other people participating in that programme, that might well be part of that business.  Mr Bartlet-Jones suggested numerous hypothetical cases in which it might be said difficult to say precisely which side of an undoubtedly existing line each such hypothetical case might fall.  I am therefore persuaded that it is possible to conceive a case in which a gambler’s winnings might be taxable.
18.	Subsequent authorities show that such a case is indeed conceivable.  In Down v Compston [1937] 2 All E.R. 475 a professional golfer was taxed on his professional earnings in the ordinary way.  He also received winnings from bets on separate private games.  These winnings were not taxable since his vocation as a professional golfer did not give rise to his winnings nor did he have an organisation constituting the business of betting on his private games of golf.  In Burdge v Pyne [1969] 1 W.L.R. 364, by way of contrast, the taxpayer was the owner of a club which provided fruit machines, a card room and roulette.  Mr Burdge was usually present and successfully played Three-Card Brag with members of the club.  He (or a member of his family) always acted as dealer and he always won.  These winnings were held to be part of his trading receipts and were taxable.  The case was thus different from that of Mr Graham because there was a trade whereas Mr Graham “was not carrying on any trade at all”, see page 368A per Pennycuick J.
19.	The question is therefore whether Mr Hakki had sufficient organisation in relation to his poker playing to constitute a trade in the sense that the word is used in the tax cases.
Organisation amounting to a trade, profession or vocation?
20.	On the facts found I do not consider that it can be said that Mr Hakki had a sufficient organisation in his poker playing to make it amount to a trade (or a business) let alone a profession or a vocation.  Mr Bartlet-Jones relied on the findings (1) that Mr Hakki appeared on television for a few weeks, made the final programme and got a prize (2) that he had his own website and communicated his strategies for online poker (3) that his poker results over 7 or 8 years were published on two other poker websites, (4) that he chose his location (5) that he set a target sum to win after which he stopped and (6) that he selected the table which was most likely to pay him.  Even in combination these findings do not to my mind amount to such organisation as to constitute a trade, profession or vocation.  The last 3 factors must be common to many successful gamblers.  Isolated appearances on television and having one’s own website are hardly, these days, evidence of organisation amounting to a trade or profession.  There is just no element of what Rowlatt J called
“a subject matter which does bear fruit in the shape of profits or gains.”
There is no “element of fecundity”, merely frequent and successful playing at cards.
21.	In these circumstances I am satisfied that, if the First Tier Tribunal had correctly directed themselves in law, they could not have found that Mr Hakki’s winnings at gambling were earnings from gainful employment within the MASC Regulations.  There would have to be evidence of much more by way of organisation than found by the Tribunal before Mr Hakki could be said to be making earnings from any gainful employment.  There was no such evidence in the present case and it is, indeed, the converse of Edwards v Bairstow [1956] A.C. 14 where the General Commissioners had decided that buying and profitably selling a spinning plant did not constitute an adventure in the nature of trade under Schedule D of the Income Tax 1918, when the only possible conclusion on the facts found was that it was such as adventure.  In these circumstances the House of Lords held that the Commissioners’ inference that there was an adventure in the nature of trade had to be set aside.  So here the only possible conclusion is that Mr Hakki was not gainfully employed as a self-employed earner.
The decisions of Judge Mesher
22.	I would not therefore quarrel with Judge Mesher’s theoretical conclusion in para 31 of his first decision, in which he accepted Rowlatt J’s requirement of an organised seeking after emoluments and then said:-
“If it is once concluded that a parent is in gainful employment as a self-employed earner as a professional gambler or poker player, the winnings from those activities form part of the gross income receipts of the employment.”
The important point is that there will not be such gainful employment in the absence of an organised seeking of emoluments.  Nor do I quarrel with the decision to remit the case to the First Tier Tribunal to find whether Mr Hakki was in such gainful employment.  But I do respectfully disagree with Judge Mesher that it was appropriate to make a case management decision that “the Upper Tribunal should give a very short decision … disallowing the father’s appeal” on the basis that his earlier decision was correct in law.  His earlier decision was merely that there could in theory be a sufficient degree of organisation to constitute gainful employment as a self-employed earner.  That was why he remitted the case to the First Tier Tribunal in the first place.  The question whether there was, on the facts found, a sufficient degree of organisation remained to be decided and was not in any way concluded by Judge Mesher’s earlier decision.  If it had been so concluded, there would have been no point in a remission.
Conclusion
23.	One quite understands Judge Mesher’s anxiety to hold that Mr Hakki should make the appropriate contribution to his children’s upbringing when he is apparently quite able to make that contribution.  Mr Buley pointed out that there may be a way to compel him to make such contribution by making a “departure direction” pursuant to sections 28A-28I of the Child Support Act 1991 as further elaborated by the Child Support (Departure Direction and Consequential Amendments) Regulations 1996.  One ground for making a departure direction is:-
“where the Secretary of State is satisfied that the current assessment is based upon a level of income of the non-applicant which is substantially lower than the level of income required to support the overall lifestyle of that non-applicant” (see Regulation 25).
Once the Secretary of State gives effect to our decision setting aside the First Tier Tribunal’s assessment of Mr Hakki’s contribution to the support of Ms Blair’s children, it may be open to Ms Blair to apply for a departure direction on this or other grounds.  This court cannot say whether such an application will succeed, only that the opportunity of making such an application appears to exist.
24.	But for the reasons given I would allow this appeal.
Lord Justice Patten:
25.	I agree.
Lord Justice Pitchford:
26.	I also agree.
27.