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HMRC v Marks and Spencer

In HMRC v Marks and Spencer [2014] UKSC 11 – 19 February 2014) the well-known case concerned the entitlement of M&S to obtain group relief in relation to losses incurred by subsidiaries operating in other EU jurisdictions.

In May 2013 the Supreme Court had held that the ‘no possibilities test’ should be applied at the date of the claim. Thisgives the right to cross-border group relief in relation to losses that cannot be relieved in the member state in which the loss making company is established.

This case dealt with the remaining issues.

First the court found that domestic legislation (FA 1998 Sch 18) allowed sequential/cumulative claims for the same losses and in respect of the same accounting period. This meant that M&S could withdraw its earlier claims which had failed the ‘no possibilities test’ and submit new claims at a time when the test...

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