Cross-border losses

The long-running Marks & Spencer case concerned the entitlement of the business to group relief in respect of losses incurred by subsidiaries operating in other EU jurisdictions.

Supreme Court judge David Hope held in May 2013 that the “no possibilities test” – which allows cross-border group relief in relation to losses which cannot be relieved in the member state in which the loss making company is established – should be applied at the date of the claim.

The most recent decision in the Supreme Court covered the remaining issues. Matthew Clarke gave the judgment.

The first question in point was whether or not sequential/cumulative claims could be made by the same company for the same losses of the same surrendering company in respect of the same accounting period?

Lord Clarke said there was nothing in the domestic legislation in FA 1998 sch 18 para 73(2) that stated only one...