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Marks and Spencer v Halsey (HM Inspector of Taxes): restriction, justification and proportionality

Marks and Spencer v Halsey (HM Inspector of Taxes): restriction, justification and proportionality Articles ec TAX REVIEW 2006±2 Tom O'Shea, Lecturer in Tax Law, Centre for Commercial Law Studies, Queen Mary, University of London1 The ECJ's long awaited decision in Marks and Spencer plc v Halsey (Inspector of Taxes) demonstrates that the law in the area of cross-border loss relief still remains far from clear2 and that the Member States have a long way to go before understanding how to make their national tax systems compliant with Community law. This article analyses the judgment of the ECJ in the light of the Opinion of the Advocate General and the Decision of the Special Commissioners. Part I examines the Special Commissioners' Decision. Part II explores the solution proposed by the Advocate General. Part III analyses the judgment of the ECJ, while Part IV provides a detailed study of the restriction, justification and proportionality issues arising in the case. Part V includes some final thoughts and conclusions.3 The author wishes to thank Philip Baker, QC, and Paul Farmer, for their helpful comments on an early draft of this article. Please email any comments to: t.o'shea@qmul.ac.uk. This is despite the assertion of the Special Commissioners: `we consider that the relevant principles established by the http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png EC Tax Review Kluwer Law International

Marks and Spencer v Halsey (HM Inspector of Taxes): restriction, justification and proportionality

EC Tax Review , Volume 15 (2) – Jun 1, 2006

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Publisher
Kluwer Law International
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Copyright © Kluwer Law International
ISSN
0928-2750
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Abstract

Articles ec TAX REVIEW 2006±2 Tom O'Shea, Lecturer in Tax Law, Centre for Commercial Law Studies, Queen Mary, University of London1 The ECJ's long awaited decision in Marks and Spencer plc v Halsey (Inspector of Taxes) demonstrates that the law in the area of cross-border loss relief still remains far from clear2 and that the Member States have a long way to go before understanding how to make their national tax systems compliant with Community law. This article analyses the judgment of the ECJ in the light of the Opinion of the Advocate General and the Decision of the Special Commissioners. Part I examines the Special Commissioners' Decision. Part II explores the solution proposed by the Advocate General. Part III analyses the judgment of the ECJ, while Part IV provides a detailed study of the restriction, justification and proportionality issues arising in the case. Part V includes some final thoughts and conclusions.3 The author wishes to thank Philip Baker, QC, and Paul Farmer, for their helpful comments on an early draft of this article. Please email any comments to: t.o'shea@qmul.ac.uk. This is despite the assertion of the Special Commissioners: `we consider that the relevant principles established by the

Journal

EC Tax ReviewKluwer Law International

Published: Jun 1, 2006

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