A new blow to the banks in their fights with customers for expenses that they charged and now claim as abusive. The Supreme Court (Second Section) he corrects himself: modifies his jurisprudence previous e, interpreting the consolidated text of the law of property transfer tax and documented legal acts and its regulation, concludes that it is not the borrower (ie the client who is mortgaged) the taxpayer of the latter tax in notarial deeds of a loan with mortgage guarantee. That is to say, that to whom this tax must affect is to the entity that lends the money, and therefore, it is she who must pay it, and not the client as before.
This is stated by the Third Chamber of the Supreme Court in a judgment of October 16, of which Judge Jesús Cudero has been a speaker. It takes into account that, when registering a mortgage, the only interested party in the elevation to public deed is the bank, because only with that registration can the mortgage be executed if, for example, there are defaults. That is a privilege that gives the person who lends the money a mortgage and, therefore, must pay the costs of their registration.
The Tax on Documented Legal Acts tax certain notarial or mercantile documents, among them the deeds of the mortgage loan. The fee is a percentage of the loan amount, and is managed by the autonomous communities. There are some that apply a rate of 0.5% as Madrid and others as Andalusia or Aragon that charge 1.5%.
The sentence annuls an article of the tax regulation (which established that the borrower is the taxpayer) because it is contrary to the law. Specifically, it is article 68.2 of said regulation, approved by Royal Decree 828/1995, of May 25.
The decision has a discrepant private opinion, issued by Judge Dimitry Berberoff, who postulates the maintenance of the previous jurisprudence, and another concurrent, Judge Nicolás Maurandi, who considers that the sentence should have affected the existence of two taxes within the documented legal acts, as well as the principle of economic capacity provided for in Article 31 of the Constitution.