Cross-border transfer of losses, the ECJ does not agree with Advocate General Sharpston

Christian Wimpissinger, Cross-border transfer of losses, the ECJ does not agree with Advocate General Sharpston, EC Tax Review. Deventer: 2008. Vol. 17, Iss. 4; pg. 173

Abstract [ProQuest]
Modern tax law legislation seems to be made for the winners in the context in question for taxpayers who make profits far in excess of their expenses and, as a consequence, do not even incur losses. Sadly it is the weak market players that keep the economy going or help it kick-start again after a down-turn. It appears to be an irony of fate: legislation reacting to abusive practices, like repealing the loss-capture rule in Germany, is often implemented because of multinational companies, especially in the cross-border context. The consequence is that the competitors of multinationals are wiped out by such legislation and even though the tax situation might be tighter, the actual market position of the big players improves due to less competition. In order to end where it started it might be acknowledged that the game regarding a cross-border loss transfer was lost although the arguments set out by AG Sharpston, by case law of the ECJ, and the literature established a strong offence to score in favor of a cross-border transfer.