This note critically examines the final ruling of the German Supreme Tax Court (BFH) in I R 35/12 (22 February 2023) on the ECJ decision in W AG (Case C-538/20) regarding a denial of consideration of final permanent establishment losses where there is a treaty exemption. Open questions and implications for the deduction of final losses under EU law are elaborated on. Furthermore, the effects of the W AG decision and the final ruling of the German BFH on the deduction of final losses from foreign subsidiaries are discussed.