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M & S — The Third Way?

In the light of the recent Marks & Spencer case, John Cullinane, Tax Partner at Deloitte, offers an alternative way forward

 
In the light of the recent Marks & Spencer case John Cullinane Tax Partner at Deloitte offers an alternative way forward
 
Much has been written about the Advocate-General's Opinion in Marks & Spencer Case C-446/03 since its publication on 7 April. The one thing everyone agrees on is the Advocate-General's comment on his own proposals: 'Doubtless such a solution appears complex' (paragraph 83). Perhaps it is time to step back and look at what the fundamental problem is in this case and whether there is a simpler way forward.
What is the problem?
 
Suppose...

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