Marks & Spencer: Timing of the ‘no possibilities’ test

David Southern QC

In HMRC v Marks & Spencer plc [2013] UKSC 30 the Supreme Court ruled in favour of M&S in the long-running case concerning cross-border group relief on subsidiary losses.

What was the main issue in that case and how did the court reach its decision?

The case was concerned with the question of what constituted definitive losses for the purposes of allowing group relief on a cross-border basis within the EU.

Before the CJEU’s decision in Marks & Spencer plc v Halsey (C-446/03) [2006] All ER (EC) 255 the UK rules required both the claimant company and the surrendering company to be resident in the UK either as a UK company or as the permanent establishment of a non-UK company for group relief to be available.

The CJEU decided that the restriction of group...

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