Hage Aaronson secures Supreme Court win for M&S

Hage Aaronson has secured a Supreme Court win for Marks & Spencer (M&S) after the court today ruled against HM Revenue & Customs (HMRC) in a tax battle with the retailer.

The ruling comes just a day after the High Court found that M&S should be held liable for trademark infringement against Interflora (21 May 2013).

The long-running battle between HMRC and M&S was taken to the Supreme Court by the revenue, with Pump Court Tax Chambers’ David Ewart QC instructed directly.

Hage Aaronson partner Simon Whitehead instructed Pump Court Tax Chambers’ David Milne QC and Nicola Shaw QC of Gray’s Inn Tax Chambers for M&S. Whitehead quit Dorsey & Whitney in March with a team of tax litigators to join Hage Aaronson (4 March 2012), bringing the M&S case with him.

Simon Whitehead
Simon Whitehead

The ruling means that restrictions on M&S’ ability to claim tax relief from losses at its now-defunct German and Belgian units have been relaxed.

The unanimous ruling was handed down by Supreme Court Justice Lord Hope this morning (22 May).

The question at the centre of the dispute was whether M&S could offset the losses caused by the closure of its German and Belgian subsidiaries in 2001 against its profits in the UK by way of group relief.

The European Court of Justice ruled that the practice was acceptable in 2005 so long as the losses could not be used for relief in the subsidiary’s resident country – the so-called ‘no possibilities’ test.

The main area of contention revolved around how that relief was calculated – at the end of the accounting period where the losses applied, which is HMRC’s position, or the date of the claim.

M&S contended that it would not be possible to apply the test at the end of the accounting period, because it would not be possible to foresee what reliefs would apply.

Handing a win to M&S Lord Hope SCJ stated: “There is no indication in any of these judgments that selecting the date of the claim is likely in practice to give rise to any difficulty. On the contrary, that date has the advantage of certainty, as the facts to be inquired into will not be susceptible to change between the making of the claim and the commencement of the inquiry.”

For the appellant/respondent Marks & Spencer

Pump Court Tax Chambers’ David Milne QC leading Nicola Shaw QC of Gray’s Inn Tax Chambers, instructed by Hage Aaronson partner Simon Whitehead

For the respondent/appellant HMRC

Pump Court Tax Chambers’ David Ewart QC leading Brick Court’s Sarah Ford, instructed directly