The Supreme Court today has the task of returning legal security to the tax on mortgages. The 31 magistrates of the Contentious-Administrative Chamber meet with a dilemma on the table: confirm the newly established criterion that the tax of documented legal acts must be paid by the bank because it is the main beneficiary of the writing of the loan before a notary or revoke that decision and return to previous jurisprudence that established that the tax is the responsibility of the client. If they choose to keep the bank paying, the magistrates will have to decide whether to apply for the loans that are signed from now on or if it has retroactive effects and how far they get.
During the last two weeks there has been in the Contentious Chamber "much pasilleo" to exchange opinions, according to several magistrates, who agree that the only thing is that there will be unanimity in the decision and that there are three factors that weigh to determine the sense of the vote: the respect that deserves the criterion of the experts in tributes that subscribed the sentence of the past October 18 that established that the bank had to pay; the doubts that, in turn, raises that these magistrates, several of them of recent incorporation to the Supreme Court, changed a settled jurisprudence of the high court in the opposite direction without there having been any legal modification that justified it; and the feeling that the image of the Supreme is very deteriorated and reversing a decision in favor of the client two weeks after adopting it would generate enormous damage.
Several magistrates consulted argue that the decision should be taken with strictly legal arguments, but admit that it is very difficult to ignore the commotion that the changes of opinion of recent weeks have generated in public opinion and even the economic consequences of the decision. Minutes after knowing the first sentence that imputed the tax to the bank, the banks began to fall on the stock market. "Many of the decisions in this room have consequences of millions of euros. We have to be aware of that in order to decide very rigorously. But we can not let that fact influence the meaning of our decision. We are accustomed, "says a judge in the room who is inclined to vote in favor of maintaining the new criteria, but admits that he has some doubts.
Three similar resources
The deliberation will take place on three resources almost identical to those that led to the ruling of October 18, which established that the tax should be paid by the bank and two other subsequent judgments in the same sense. The parties in conflict return to be the municipal company of the housing of Rivas-Vaciamadrid (that had presented several resources), the State and the Community of Madrid. The speakers of the three cases (the magistrates who have studied the matter in detail and propose a decision) are two judges of the second section, the tax expert and author of the previous judgments. Two of the papers have been assigned to the president of that section, Nicolás Maurandi, and the other to the magistrate Francisco José Navarro Sanchís. Both subscribed that the tax corresponded to the bank and will defend the same position today. If the majority of the plenary differs from it, other magistrates will represent that majority who will draft the sentence.
The 31 magistrates, in order from the newest to the oldest, will present their criteria, so the plenary will be long and, given the existing differences, some do not rule out that more than one session is required. Several members, in addition, have shown their intention to raise at the beginning legal doubts about Díez-Picazo's decision to raise the matter to the plenary session after the tax expert section changed the jurisprudence that the court had maintained for more than 20 years. . However, this debate has lost steam after the so-called special room of Article 61 of the Supreme Court (formed by the president of the court and the presidents and two magistrates of each room) rejected a complaint filed against him by Podemos and supported the power of Díez-Picazo to raise the matter to plenary at any time.