Marks & Spencer: Cross-Border Loss Relief

The Court of Appeal (Lloyd, Moses and Etherton LLJ) has issued a further decision in this case, dismissing the entirety of HMRC's appeal in relation to the validity of new non-UK loss relief claims made by Marks & Spencer, the timing of such claims and the quantification of the losses.

"No possibilities" test to be determined at the time the group relief claim is made

The "no possibilities" test is that set out by the ECJ such that cross-border loss relief will be permitted, despite the UK domestic rules, provided that the non- UK subsidiary has:

• exhausted the possibilities in its state of residence for setting the losses against current or past profits (including by way of surrender to other companies); and