This case caught my eye. It relates to the Marks and Spencer group relief litigation and the time at which the "no possibilities" test for deciding that relief cannot be obtained in the country of residence is applied. The Supreme Court agreed with the tax payer that it is when the claim is made that is the appropriate point and not as HMRC had claimed the accounting period in which the losses had arisen.
The case has no particular relevance for life insurers (unless they are considering liquidating foreign subsidiaries) but I do think the sheer length of time that it is taking to resolve the issues is worth noting. The case first came to the commissioners in 2002 and Marks and Spencer "won" in the ECJ in 2005. A quick search in CCH tax cases throws up various decisions in the case in 2002, 2004, 2006, 2007, 2009, 2010 (3 separate judgements) and one other judgement in 2013. And we haven't reached the end of the road, the whole question of "grouping issues" still needs to be decided and apparently those who know about such things believe we are off to the ECJ again.
Is there any reason to suppose that HMRC would not adopt a similar scorched earth approach in the FII GLO? I wonder whether there is any alternative to the lengthy process that Marks and Spencer are going through. Companies can try and reach individual agreements with HMRC but I would imagine it is hard to arrive at a fair outcome especially as the beneficiaries of FII GLO claims are often policyholders. Would an industry wide settlement under the auspices of the FCA be an alternative to continued litigation?
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