It has not lasted for 24 hours. The Supreme Court is going to rethink the decision of yesterday same that established that it is the bank the one that pays the expense of signature of the mortgage, which has led to large falls in stock market banking. In an unusual reaction, Luis María Díez-Picazo, president of the Contentious-Administrative Chamber, which dictated yesterday's decision, has opted to stop the pending appeals on this same issue that already had a revision date. This will prevent the new jurisprudence from being applied.
In the coming weeks, it will be the plenary session of the Chamber, formed by 31 magistrates, who will decide whether to accept that the bank pays the tax or if it will have to do so, as up to now, the client. In a public note, Díez-Picazo justifies his decision in the "enormous economic and social repercussion" of the sentence notified this Thursday that, "supposes a radical turn in the criterion" that maintained until now the Supreme one.
Who pays the tax now?
The problem is that until a few hours ago, following yesterday's ruling of the SupremeIt seemed clear that starting today the expenses of the called Tax on Documented Legal Acts I had to take the banking. The only doubt seemed retroactivity, that is, if it affected mortgages of the past or only the new ones. Today, however, everything remains in the air again. What do notaries now have to do when signing a mortgage? Is the client paying the expense, as the jurisprudence of the February judgment stated? Or the bank, as the sentence of yesterday said?
The notaries, in principle, will continue to warn that, according to the judgment of the Supreme Court yesterday, the tax would correspond to the creditor, that is, to the bank, according to sources in this sector. They believe that the legal criterion of yesterday is the one that continues in force while the same question returns to study the Supreme one. Because yesterday was a final judgment of the high court and today's change (the Supreme Court's notice that it will review the decision) is just an informative note. However, remember that this tax is not paid at the time of signing, but there is a period of two months to settle it. That is why both the bank and the customer can leave the payment in the air for two months. They will warn the customer and the bank of the situation.
For its part, sources of the banking sector have expressed their "stupor for the unjustifiable situation created by the Supreme." Several large entities say that both Friday and as of Monday they will assume responsibility for the tax. "We are waiting for a final decision from the Supreme Court to clarify everything, we hope that it will be as soon as possible," there are millions of clients with the credits in doubt. "When the story ends, we will see who this payment is for," they add. At the moment, they go back up in the Stock Market.
The tax of legal acts documented tax certain notarial or mercantile documents, among them the deeds of the mortgage loan. The fee is a percentage of the loan amount (in fact, on the so-called mortgage liability), and is managed by the autonomous communities. There are some that apply a rate of 0.5% as Basque Country and others as Andalusia or Aragon that charge 1.5%
The plenary of the room will decide
The decision of the president of the room has two points. The first one, to annul all the indications about pending resources related to who corresponds to pay the so-called Tax on Documented Legal Acts. The second, bring to the plenary of the room the knowledge of any of those resources "in order to decide whether said jurisprudential turn should be or not confirmed." That is, the Supreme does not rule out reversing the criteria established yesterday and that has generated an earthquake in banking.
Yesterday's decision was adopted by one of the sections of the Contentious Chamber, the second section, which is the one that reviews the cases related to taxes. Some in the high court questioned yesterday that a decision of this caliber would not have taken from the beginning to the plenary session, formed by the 31 magistrates that compose the room. But Díez-Picazo, who as president has the power to raise the issues he considers relevant to the plenary session, left it in the hands of a tribunal made up of six magistrates. Five of them signed the change of criteria (on February) and decided that it is the bank that takes charge of the tax. The sixth magistrate made a private vote in the opposite direction.
The plenary announced by Díez-Picazo still has no date, but the sources consulted believe that it will be held in the coming days. The magistrates will not review the sentence of yesterday, but the criterion that this established that it is the bank that has to pay the tax of the mortgage. A criterion that, supposedly, had to be applied to the mortgages that were signed from now on and that, according to the experts, also implied returning the money of this tax to whoever had paid it in the last four years (the time it takes prescribe the payment of taxes). The decision made this Friday by the president of the Chamber of Contentious opens the door for the Supreme to return to the doctrine he had up to now and attribute again to the client the responsibility of paying this tribute.
Why have two sentences been issued?
The issue of who pays the tax seemed to have been settled last February, when the full Civil Court endorsed that it was the client who paid the tax for signing the mortgage. However, by then, the issue was also on the table of the Contentious-Administrative Chamber, which is in charge of resolving doubts about the interpretation of the laws and that until now had maintained the same criteria that it set in February. Civil Room But the judges of the Contentious considered that that interpretation had to be reviewed and admitted for processing an appeal by the municipal housing company of Rivas Vaciamadrid against a ruling of the Superior Court of Justice of the Community, which considered that it corresponded to the client of the mortgage pay the public deed tax. Now the decisions do not match.