The authors review a case that was referred to the ECJ by the Fiscal Court of Cologne (Timac Agro Deutschland (Case C-388/14)), which raises issues regarding German loss recapture rules that applied until 1998 and the deductibility of final losses incurred by an Austrian PE at the level of the German parent company applying the Marks & Spencer (Case C-446/03) exception. The court explicitly questions the compatibility of recent German Federal Fiscal Court decisions with ECJ case law and the interpretation of the finality criterion set out in Marks & Spencer.