Is this the end of the Marks & Spencer Doctrine? - The Freedom of Establishment, Permanent Establishments and Objective Comparability
(2023) HARN60 20231Department of Business Law
- Abstract
- The Thesis examines issues of European Corporate Tax Law and specifically the notion of the Marks & Spencer doctrine, with respect to non-resident permanent establishments. The doctrine entails the possibility for a resident company to deduct losses that were incurred by a PE, situated in another Member State. There is an ongoing debate among writers and scholars of European Tax Law concerning the application of the Marks & Spencer doctrine towards PE:s, due to recent judgements by the Court of Justice of the European Union on the matter. One of which have gained recent attention, namely Case C‑538/20, Finanzamt B v W AG. Writers on the topic seem to have conflicting views on whether the Courts judgement should be seen as a de facto... (More)
- The Thesis examines issues of European Corporate Tax Law and specifically the notion of the Marks & Spencer doctrine, with respect to non-resident permanent establishments. The doctrine entails the possibility for a resident company to deduct losses that were incurred by a PE, situated in another Member State. There is an ongoing debate among writers and scholars of European Tax Law concerning the application of the Marks & Spencer doctrine towards PE:s, due to recent judgements by the Court of Justice of the European Union on the matter. One of which have gained recent attention, namely Case C‑538/20, Finanzamt B v W AG. Writers on the topic seem to have conflicting views on whether the Courts judgement should be seen as a de facto abandonment, or simply a further establishment of the doctrine’s restrictive nature.
The Thesis aimed to address whether the Marks & Spencer doctrine applies towards non-resident PE:s to the same extent as it does towards subsidiaries, and also provide a meaningful contribution to the ongoing debate concerning the status of the doctrine.
The Thesis concluded that the doctrine of Marks & Spencer is applicable towards non-resident PE:s, under the circumstance that the non-resident PE can be deemed as objectively comparable to its domestic equivalent. Nevertheless, the Author of the Thesis noted that Case C‑538/20, Finanzamt B v W AG is subject to a pattern of case-law where the Court has become more restrictive in its language and approach throughout its line of case-law. This pattern can be understood as the Courts way of not excluding a legal position for the future, where they may have to eventually or potentially abandon the doctrine. (Less)
Please use this url to cite or link to this publication:
http://lup.lub.lu.se/student-papers/record/9134226
- author
- Quttineh, Ismail LU
- supervisor
- organization
- course
- HARN60 20231
- year
- 2023
- type
- H1 - Master's Degree (One Year)
- subject
- keywords
- EU-law, Direct Taxation, Permanent Establishment, Subsidiary, Marks & Spencer, Law, Tax, PE
- language
- English
- id
- 9134226
- date added to LUP
- 2023-08-16 10:53:14
- date last changed
- 2023-08-16 10:53:14
@misc{9134226,
abstract = {{The Thesis examines issues of European Corporate Tax Law and specifically the notion of the Marks & Spencer doctrine, with respect to non-resident permanent establishments. The doctrine entails the possibility for a resident company to deduct losses that were incurred by a PE, situated in another Member State. There is an ongoing debate among writers and scholars of European Tax Law concerning the application of the Marks & Spencer doctrine towards PE:s, due to recent judgements by the Court of Justice of the European Union on the matter. One of which have gained recent attention, namely Case C‑538/20, Finanzamt B v W AG. Writers on the topic seem to have conflicting views on whether the Courts judgement should be seen as a de facto abandonment, or simply a further establishment of the doctrine’s restrictive nature.
The Thesis aimed to address whether the Marks & Spencer doctrine applies towards non-resident PE:s to the same extent as it does towards subsidiaries, and also provide a meaningful contribution to the ongoing debate concerning the status of the doctrine.
The Thesis concluded that the doctrine of Marks & Spencer is applicable towards non-resident PE:s, under the circumstance that the non-resident PE can be deemed as objectively comparable to its domestic equivalent. Nevertheless, the Author of the Thesis noted that Case C‑538/20, Finanzamt B v W AG is subject to a pattern of case-law where the Court has become more restrictive in its language and approach throughout its line of case-law. This pattern can be understood as the Courts way of not excluding a legal position for the future, where they may have to eventually or potentially abandon the doctrine.}},
author = {{Quttineh, Ismail}},
language = {{eng}},
note = {{Student Paper}},
title = {{Is this the end of the Marks & Spencer Doctrine? - The Freedom of Establishment, Permanent Establishments and Objective Comparability}},
year = {{2023}},
}