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Marks & Spencer wished to claim group relief in respect of losses incurred by subsidiaries including ones based in Belgium and Germany.
The matter had been referred to the European Court of Justice which ruled such a claim could be made subject to the ‘no possibility’ test: provided there was no possibility the losses would be used in the member state in which the subsidiary was established.
The case was remitted to the High Court which remitted to the Special Commissioners the appeal concerning the German and Belgian losses.
Summing up very briefly the commissioners found mainly in favour of the taxpayer. HMRC appealed against the decision but the Court of Appeal upheld it remitting the matter back to the First-tier Tribunal.
The tribunal allowed the appeal in part so HMRC appealed.
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