European Court of Justice: Final Losses

The European Court of Justice held in its decision Memira Holding AB issued on 19 June 2019 that when assessing whether the losses of a non-resident subsidiary are final within the meaning of its judgment in Marks & Spencer on 13 December 2005 (C‑446/03), the fact that, in the event of a merger, the subsidiary’s Member State of establishment does not does not allow the losses of one company to be transferred to another company liable for corporation tax, is not decisive, unless the parent company can demonstrate that it is impossible for it to deduct those losses through ensuring that - in particular by means of a sale- the losses are fiscally taken into account by a third party for future tax periods.