M&S and cross-border group relief

The Marks & Spencer group relief litigation is now in its eighth year. It has seen the inside of every conceivable court other than the Supreme Court. It made its way to the European Court of Justice in 2003 to decide whether in principle group relief for non-resident losses was possible. The High Court and Court of Appeal then offered their interpretation of that ruling before returning the case in 2007 to the tax tribunals to apply those conclusions to its facts. That final process has involved addressing some of the curious implications that arise from trying to make a system designed with only domestic losses in mind apply in a cross-border context. The latest instalment is the decision of the Upper Tribunal (since April 2009 the replacement for the High Court in the...