Nine judicial strand to the Spanish banking for the commercialization of mortgages. After declare ground clauses abusive Y of early maturity and to force the banks to assume part of the expenses of setting up the loan, the Supreme Court, in a judgment in which it reviews its own sentence, says that it is the entity that must pay the tax of Documented Legal Acts (AJD) for the writing of the mortgage before the notary, and not the client, as was the case until now. This will cause that from this moment the banks assume their payment in the new loans that they grant, and it opens the door to a wave of claims on the part of those who are already paying a credit for the purchase of their house. The bank argues that in that case it would be the Treasury who should respond.
The invoice for the financial system can be enormous, even greater than that of the floor clauses, for whose cancellation the sector has returned so far to its customers 2.226 million euros. Proof of this is that the actions of the eight listed Spanish banks sank yesterday on the stock market and lost 5.876 million capitalization. Liberbank, the entity that suffered the most, left 6.74%, ahead of the Sabadell (-6.7%), Bankinter (-6.27%), Unicaja (-5.34%), Bankia (-5.11%), Caixabank (-4.54%), BBVA (-2.7%) and the Santander, which fell 2.05%.
The Tax on Documented Legal Acts is a tax lent 100% to the autonomous communities, which taxes notarial documents and which consists of a fixed part per sheet and folio and a variable fee that involves the payment of a percentage on the deed. This percentage varies between autonomies and others from 0.5% to 1.5% (see graph). According to the specialized portal Helpmycash.com, for an average loan of 150,000 euros, the customer about 1,700 euros for the tax at 1%.The average is between 2,000 and 3,000 euros. The cost for banking, according to some estimates, would be around 20,000 million, because according to the association of banking users Adicae there are about eight million mortgaged that have paid the tribute.
«The credit institutions have not received any amount of their customers for this concept», defended yesterday the banks, savings banks and credit unions in a joint statement of their three employers (AEB, CECA and Unacc) in which they advance that they will comply with the new criteria set by the Supreme Court and from now on they will pay that tax when signing mortgages.
The Tax Agency, key
However, the sector refuses to return the money already paid by customers. In this regard, they justify that they are amounts that the banks have not pocketed, but the Tax Agency, and to it derive the possible claims and refunds. From the Ministry of Finance admit that they are already studying the detail of the ruling and its possible consequences: that is, if they must open a process of claim and return, although they admit complexity when dealing with a tax assigned to the autonomies. Anyway, and in the hypothetical case of having a refund, the logical thing is that this money, if it comes out of the public coffers, will be replenished sooner or later by the entities. This, according to the tax department of Baker McKenzie, could lead the banks to even initiate procedures of patrimonial responsibility of the public powers, that is, against the State.
«The judgment refers to a question of a tax nature», argue from sources in the sector, stressing further that this case does not refer to amounts unduly collected, as in the case of abusive land clauses, but to a change in the interpretation of the AJD tax law.
The first room of the Supreme Court, in line with article 68 of the tax regulations, ruled last February that the client was the taxpayer of the tax and, therefore, who should pay it. Now, before a cassation resource of the Municipal Housing Company of Rivas-Vaciamadrid, Madrid City Council governed by Somos Rivas, local brand of Podemos, the contentious court of the High Court reinterprets this article and concludes that the interested party in registering the mortgage as a real guarantee is the bank, not the client, and it is the entity that must pay the tax. The ruling has a particular vote contrary to that thesis.
Retroaciency and claims
The failure of the Supreme leaves a great unknown in the air and is who and from when can claim, if that possibility is possible. The bank alleges that, according to the law of the Administrative Dispute Court and numerous decisions of the Supreme Court itself, the annulment of a provision of a law does not generate retroactive effects, but rather that the rule declared illegal ceases to apply from the judicial decision.
«If, despite the non-retroactivity that the law sets, some client wants to claim, he must do so before the Tax Agency», they add in the sector. However, legal sources consulted by ABC believe that it is possible to claim taxes paid at least in the last four years, the statute of limitations for the payment of taxes. Moreover, from some law firms specializing in claims of this type as Voyadefenderte and Legálitas believe that there is not even a limitation period.
In that case, those people who have not already claimed through the courts and who have paid the tax in the last four years could claim a refund of undue income before the Tax Agency. Only those consumers who have already resorted to justice should continue in this way, according to tax advisors.
Clarification of the Supreme?
The uncertainty surrounding the possible claim leaves a single certainty: almost certainly, before the doubts that this will generate in the courts of first instance, the Supreme Court will have to decide in the future on the retroactivity of his sentence and clear any doubt.
The associations of users celebrated yesterday the decision of the High Court as «A great victory for the rights of consumers», according to Adicae. However, banking sources warn that all these judgments favorable to the client can end up being pernicious. The employers recalled yesterday that the rules of the Spanish mortgage market have allowed access to housing to a broad spectrum of the population and, as always defends the sector, at a lower cost than in the rest of Europe. "We demand greater legal security from the public authorities and clear and predictable rules," the AEB, CECA and Unacc ask, the bank warns that this new stick in the wheel to the mortgage market may end up making the credit more expensive and harder.