Litigation over who should pay the mortgage tax, if the bank or the consumer, will not end up in the Supreme Court (TS), but in Europe. And because the court itself fully applies the jurisprudence of the Court of Justice of the EU (CJEU, based in Luxembourg). And because the TS itself decides on November 5 to make a query (preliminary reference) to Luxembourg. And because it is raised by any court in the -most certain- lawsuit that one of the parties will raise about what he decides next.
And given its jurisprudence, there is little doubt that the European court will rule in favor of the consumer, and without a time limit: to understand us, with total "retroactivity". Another thing is that in the end the broken dishes are paid by the bank, or this can reverberate (probably successfully) against the Treasury.
The essence of the litigation is the abusive nature of many clauses in mortgage contracts. Are "abusive" those that "have not been negotiated individually" and harm the consumer because of "a significant imbalance between the rights and obligations of the parties" (Directive 93/13, of 5/4/1993): among them, those that have been "previously written" without the client "having been able to influence its content". And always, for Europe, "the most favorable interpretation for the consumer will prevail".
The Spanish consumer protection law (1/2007, of November 16) transposed that directive. And three judgments of the Supreme Court (STS), from different chambers, have applied it -with a certain thread of continuity, not in open rupture- to the case of the tax of documented legal acts (that of mortgages), qualifying the clauses examined of " abusive. " STS 705/2015 established that "whoever has the main interest" in registering the mortgage in the registry "is undoubtedly the lender" (the creditor) and that "the guarantee [hipotecaria] it is adopted for the benefit of the lender. " "We already said", in a sentence of 2011, the magistrates riveted, that "the exclusive imputation to the buyer / consumer of the taxes derived from the transmission was an abusive clause", for limiting their rights to negotiate the "distribution of the burden "
Also STS 148/2018 (of March 15) concluded that a clause that attributed to the client all expenses and taxes "is null and void", attributing his payment "indiscriminately and without distinction". He declared it abusive "not only partially, but in its entirety."
And the recent STS 1505/2018 (of 16/10) went further to draw the consequences of that abusive character. He understood that in a purchase with mortgage guarantee there are two businesses. And in the mortgage is the creditor who "acquires rights against the debtor", so it is the "beneficiary" and the taxpayer, who must satisfy it (Article 29 of the law of the ITP and AJD). What the regulation (article 68) later came to contradict, defining (confusion between buyer and mortgagee) as "purchaser to the borrower": that's why this regulation is not "clarifying", but "constitutes an obvious regulatory excess that makes the forecast "contained therein. That excess or abuse becomes illegality. So the Supreme Court "has decided to annul" that provision of the regulation, because "it is contrary to the law."
It is the most serious case of nullity. The nullity of full right because the regulation "is contrary to the law." Because it goes against a higher standard, in short. No pronouncement can overcome it. Equivalent to the underlying contract never existed. So that the nullity is perpetual and insubsanable, can not be subject to prescription (articles 1310/1261 of the Civil Code). What a judge declares void is that it has been null and void since before, even before the contract was formalized. The null can not be confirmed with the passage of time: it has no effects ab initio.
For more inri, before that sentence, and had to declare the nullity of these contracts, because if they were abusive clauses, as the TS said, "will be null and void as a matter of law" (Article 83, consumer law) .
It was in a famous parallel case, that of the clauses-ground of the mortgages, when the European jurisdiction had to come to the aid (and corrective) of the, more pacata, Spanish. The high Spanish court (STS 241/2013 of 9/5/2013) had recognized that these clauses were abusive, but by virtue of the principle of legal certainty, "limited the effects of retroactivity" of that statement, so that only It would take effect from the publication of the sentence "(ruling of the CJEU of 12/21/2016). But Luxembourg amended the plan by virtue of EU regulations: this temporary period "only allows limited protection for consumers", which is "incomplete and insufficient". On the contrary, "a contractual clause declared abusive has never existed, so that it could not have an effect on the consumer". A term "that limits in time" the claim of the clients and the restitution of what was taken from them, is therefore illegal before Europe.
Applying this jurisprudence to the mortgage tax case, the consumer should not pay it, and if he paid it, the amount paid must be paid back. Who? The bank, which is a rebound beneficiary because it has been replaced in its fiscal obligations? Or Treasury, who is the one who raised it? Or the regional Haciendas, to which your product was sent? Would not the bank in his case have the opportunity to pass against the State, which is ultimately responsible for the annulled regulation?
That will be another chapter, later, of the litigation. For the time being, the cancellation of the regulation gives free access to the payment of the tax by the financial system. Some say that in the end, the borrowers will also pay attention to it: instead of paying the tax, they would pay opening fees or others. But it's not the same. The amount of the tax is assessed, it is immovable. Bank commissions are part of the financial market, are subject to a certain competition, can influence them.