Final Losses under EU Tax Law: Proposal for a Better Approach

The analysis in this article demonstrates the significant role that the need to preserve a balanced allocation of the power to tax justification plays vis-à-vis the other two justifications taken into account in Marks & Spencer (Case C-446/03): the risk of double use of losses and the risk of tax avoidance. As a consequence, there is a need to identify a narrower concept of final losses that is consistent with the balanced allocation of taxing rights.