David Simpson considers whether cross-boarder group relief claims can be made under Marks & Spencer principles in respect of losses stranded by operation of law as distinct from terminal loss claims
The facts in Marks & Spencer (C-446/03) in relation to Belgium and Germany concerned terminal losses scenarios where the subsidiaries had ceased trading and subsequently went into liquidation. The judgment of the European Court of Justice (ECJ) however was expressed in terms of a definitive inability (past present and future) to use the losses in the state of residence of the subsidiary ('definitive losses').
This raises an interesting question: is the judgment limited by its facts to terminal situations or does it have application in other situations involving definitive losses? In the latter situation losses stranded by operation of law (most notably under change of control or time limitation provisions) would satisfy the technical requirements for...
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David Simpson considers whether cross-boarder group relief claims can be made under Marks & Spencer principles in respect of losses stranded by operation of law as distinct from terminal loss claims
The facts in Marks & Spencer (C-446/03) in relation to Belgium and Germany concerned terminal losses scenarios where the subsidiaries had ceased trading and subsequently went into liquidation. The judgment of the European Court of Justice (ECJ) however was expressed in terms of a definitive inability (past present and future) to use the losses in the state of residence of the subsidiary ('definitive losses').
This raises an interesting question: is the judgment limited by its facts to terminal situations or does it have application in other situations involving definitive losses? In the latter situation losses stranded by operation of law (most notably under change of control or time limitation provisions) would satisfy the technical requirements for...
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