欧共体法院通过Marks&Spencer案明确了跨国损失抵扣的处理原则,为成员国立法提供了准确的依据。一般而言,成员国可以禁止用其他成员国子公司的损失来抵扣本国居民母公司的利润,同时允许用本国居民子公司的损失抵扣本国居民母公司的利润,并不违反《欧共体条约》关于设业自由的规定。但是,当非居民子公司已不可能在所在国抵扣其损失时,成员国应当允许用非居民子公司的损失来抵扣居民母公司的利润。 The European Court of Justice clarified the principle of cross-border loss deduction through Marks & Spencer case and provided an accurate basis for the legislation of member states. In general, member states can prohibit the loss of subsidiaries of other member countries to offset the profits of their own parent companies, while allowing the loss of their own resident subsidiaries to offset the profits of their own parent companies, without violating the “European Communities Body Treaty ”on freedom of business. However, when a non-resident subsidiary is no longer able to offset its losses in the host country, the member states should allow the losses of the non-resident subsidiaries to be offset against the profits of the resident’s parent company.