Cross-border loss relief and group taxation

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1 Loss relief and group taxation Cross-border loss relief and group taxation Timothy Lyons QC 7 th May 2012

2 Loss Relief and Group Taxation (1) Participating in the internal market: The nature of the company The nature of a corporate group The nature of a profit/loss are (i) abstractions (ii) nationally determined

3 Loss Relief and Group Taxation (2) The internal market: an area without internal frontiers free movement of goods, persons, services and capital according to the Treaties (i) abstraction (ii) EU determined: TFEU Art 26.2

4 Loss Relief and Group Taxation (3) Establishment freedom: Arts 49 & 54 TFEU a very broad concept allows EU nationals to participate, on a stable and continuous basis, in the economic life of a Member State other than their State of origin and to profit therefrom... Case C-384/08 Attanasio Group Srl para 36 and para 39.

5 Loss Relief and Group Taxation (4) Freedom of establishment: precludes any national measure even if applicable without discrimination liable to hinder or render less attractive the exercise of the freedom Case C-384/08 Attanasio Group Srl para 43.

6 Loss Relief and Group Taxation (5) No different treatment of subsidiary on account of residence of parent Joined Cases C-397/98 & C-410/98 Metallgesellschaft No different treatment of parent on account of residence of subsidiary Applied to national losses within consortia Case C-264/96 ICI v Colmer

7 Loss Relief and Group Taxation (6) French tax integration regime: Cannot depend on whether or not shares in French subsidiary held indirectly through a company established in the Netherlands. Case C-418/07 Société Papillon para 22

8 Loss Relief and Group Taxation (7) Losses of German parent attributable to writedowns in value of shareholding in foreign subsidiary to be deductible. Case C-347/04 Rewe Zentralfinanz Finnish intra-group transfers to a UK lossmaking company: Not an intra-group financial transfer and not deductible. Case C-231/05 Oy AA

9 Loss Relief and Group Taxation (8) Parent taxed on, eg, notional interest on loan to subsidiary where the loan not under fully competitive conditions - consistent with internal market. Case C-311/08 SGI v Belgium Netherlands single tax entity not capable of being created where there are subsidiaries resident outside the Netherlands. Case C-337/08 X Holding BV

10 Loss Relief and Group Taxation (9) Case C-446/03 Marks & Spencer plc v Halsey Opinion - Poires Maduro AG: Refers to the need to retain in tax matters the same concept of restriction on freedom of establishment which is applicable in the other areas (para 35) Case C-56/01 Inizan [2003] ECR I-12403

11 Loss Relief and Group Taxation (10) Case C-446/03 Marks & Spencer plc v Halsey Judgment - use foreign losses if: (i) non-resident sub exhausted possibilities of using losses for accounting period or previous periods, and (ii) where there are no possibilities for those losses to be taken into account in sub s State of residence, for future periods, by anyone.

12 Loss Relief and Group Taxation (11) Losses of permanent establishments: Case C-414/06 Lidl Belgium Gmbh Case C-293/06 Deutsche Shell

13 Loss Relief and Group Taxation (12) Case C-446/03 Marks & Spencer plc v Halsey No option where to be taxed jeopardise balance allocation of power to tax No double use of losses No tax avoidance BUT: UK rules disproportionate

14 Loss Relief and Group Taxation (13) Marks & Spencer plc v Halsey (CA, No 1, 2007) What are possibilities? Those available given the objective facts of the company's situation at the relevant time What are possibilities in the future? No real possibility - "little or no real likelihood".

15 Loss Relief and Group Taxation (14) HMRC v Marks & Spencer plc (CA, No 2, 2011) When must the conditions be satisfied? Can there be sequential claims for same loss? If 1 of a loss is usable, is all relief denied? How to calculate the relieved loss?

16 Loss Relief and Group Taxation (15) Proposal for a Council Directive on the CCCTB: COM (2011) 121.final, a set of common rules for computing the tax base of companies : recital (9) The tax base shall be calculated as revenues less exempt revenues, deductible expenses and other deductible items. (Article 10)

17 Loss Relief and Group Taxation (16) Single set of rules for calculating tax base Tax results of each group member consolidated setting of losses against profits No transfer pricing rules Much reduced scope for double taxation Tax based shared amongst group members by reference to assets, payroll and sales (destination)

18 Loss Relief and Group Taxation (17) European Parliament - 19 April 2012 Legislative resolution on the proposal for a Council directive on CCCTB Apportionment formula should be: Labour and asset factors at 45% and sales 10% Commission proposal - equal weighting

19 Loss Relief and Group Taxation (18) Some recent developments Case C-18/11 HMRC v Philips Electronics UK Ltd: Opinion of Kokott AG, 19 th April Case C-80/12 Felixstowe Dock and Railway Co Lodged application, 15 Feb No German fiscal unity if registered office outside and effective management inside Germany Commission takes proceedings. IP/12/283 Date: 22/03/2012

20 Loss Relief and Group Taxation (19) Case References Case C-264/96 ICI v Colmer [1998] ECR I-4695 Joined Cases C-397/98 & C-410/98 Metallgesellschaft [2001] ECR I-1727 Case C-446/03 Marks & Spencer plc v Halsey [2005] ECR I Case C-347/04 Rewe Zentralfinanz [2007] ECR I-2647 Case C-231/05 Oy AA [2007] ECR I-6373 Marks & Spencer plc v Halsey [2007] EWCA Civ 117

21 Loss Relief and Group Taxation (20) Case References Case C-293/06 Deutsche Shell [2008] ECR I-1129 Case C-414/06 Lidl Belgium Gmbh [2008] ECR I-3601 Case C-418/07 Société Papillon v Min. Budget [2008] ECR I-8947 Case C-210/06 Cartesio [2008] ECR I-9641 Case C-311/08 SGI [2010] ECR I-487 Case C-337/08 X Holding BV [2010] ECR I-1215 Case C-384/08 Attanasio Group Srl [2010] ECR I-2055 HMRC v Marks & Spencer [2011] EWCA Civ

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