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The Supreme Court hearing took place on 15 April 2013 in the Marks & Spencer group relief case. The hearing dealt only with the question of when the no possibilities test should be assessed (at the end of the accounting period in which the losses arose or at the date of the claim). The Supreme Court will decide whether or not that issue needs to be referred back to the CJEU and, if not, will determine the matter itself. Judgment has been reserved.

This article appears in the JHA April 2013 Tax Newsletter, which also features:

1. Exit Taxes: Case C-64/11 Commission v Spain by Federico M.A. Cincotta
2. Interest on a Tax Refund Case: C-565/11 Mariana Irime by Federico M.A. Cincotta
3. Recovering unlawful “passed on” VAT: ITC v Commissioners for HMRC, 2nd High Court Judgment by Robert Waterson

By Federico M.A. Cincotta

The CJEU has held that it is unlawful for a national system to limit the interest granted on repayment of tax levied in breach of EU law to the interest accruing from the day following the date of the claim for repayment of the tax as opposed to when the tax was actually paid. The CJEU confirmed its judgment in Littlewoods, stating that where a Member State has levied taxes in breach of the rules of EU law, individuals are entitled to reimbursement not only of the tax unduly levied but also of the amounts paid to that State or retained by it which relate directly to that tax. The CJEU take into consideration the losses constituted by the unavailability of sums of money as a result of a tax being levied prematurely and the duration of the unavailability of the sum unduly levied. This decision affirms the approach in Littlewoods although what the CJEU meant in Littlewoodsremains the subject of ongoing litigation in that case.

This article appears in the JHA April 2013 Tax Newsletter, which also features:

1. Exit Taxes: Case C-64/11 Commission v Spain by Federico M.A. Cincotta
2. Recovering unlawful “passed on” VAT: ITC v Commissioners for HMRC, 2nd High Court Judgment by Robert Waterson
3. Cross Border Group Relief: Marks & Spencer in the Supreme Court by Michael Anderson

Originally printed in International Tax Review Premium on 14 March 2013

The European Court of Justice (ECJ) handed down judgment in Wheels Common Investment Fund Trustees Ltd and Others v Commissioners for HMRC on March 7 2013.

Robert Waterson, senior associate at Hage Aaronson, analyses the ruling and explains why the ECJ still needs to answer the question of whether management services provided to defined contribution schemes could qualify for VAT exemption.

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