September 26, 2020

Rivas-Vaciamadrid will take to Strasbourg his fight so that the bank pays the mortgage tax when the legal channels in Spain are closed

The battle over who should pay the Tax on Documented Legal Acts on mortgages will come to the Strasbourg Court. The Rivas City Council will take to the European Court of Human Rights the decision of the Spanish Constitutional Court not to admit their appeals against the controversial decision of the Supreme Court to reverse three of their own sentences and agree that they are the clients, and not the banks, who have to pay the call mortgage tax. “We will go to Strasbourg to request a protection that the Spanish justice denies us,” the mayor of the Madrid city council, Pedro del Cura, has assured on Twitter.

Rivas, the town that appealed the mortgage tax, fights a battle: "The Supreme Court has placed itself at the orders of the Bank"

Rivas, the town that appealed the mortgage tax, fights: “The Supreme Court has placed itself at the orders of the Bank”

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In four resolutions to which has had access, the Constitutional Court decides not to admit as many appeals filed by the EMV of Rivas against the decision taken by the Supreme Court’s Contentious-Administrative Plenary, by a narrow margin of 15 votes against 13, “for not appreciating the special constitutional significance” required by law. The resolutions were notified on September 2 and are signed by judges Andrés Ollero, Santiago Martínez-Vares and María Luisa Balaguer

The case dates back to November 2018. Three previous judgments of the Supreme Court had agreed with the Municipal Housing Company of Rivas-Vaciamadrid (governed by IU, Más Madrid-Equo, Podemos and PSOE) and had determined that the tax that is paid for notarially registering a mortgage had to be paid by the bank that gave the loan, as the principal interested in the legal act itself. Without that registration, the mortgages could not be foreclosed.

The three judgments annulled an article of the current legislation and renewed the previous doctrine of the Contentious-Administrative Chamber of the Supreme Court, which until then had agreed with the clients.

But in an unprecedented decision so far, the president of the Chamber, Luis Díez-Picazo, decided to convene the plenary to review the new doctrine. Díez-Picazo understood that the first of the sentences – contrary to two previous resolutions – supposed a “radical turn” in the jurisprudence that caused a “huge economic and social repercussion”. The certiorari was an unprecedented decision, since it involved reviewing a doctrine consolidated in a sentence, when the normal thing is to gather all the magistrates, if necessary, before the ruling occurs.

The three judgments of the Supreme Court that gave the reason to the EMV of Rivas, who initiated the legal procedure, they maintained their validity. But the city council led by Pedro del Cura decided to file, first, a nullity incident before the Supreme Court itself, in addition to appeals before the Constitutional Court. The mayor, of IU, has accused the High Court of “washing their hands” and thereby promoting a “new and shameful judicial rescue to the bank.”

“Rivas requested protection from the Constitutional Court because the Supreme Court decided that justice had the right of admission: what was worth to the EMV (that the banks paid the tax) could not be applied to millions of Spanish families. Something unheard of,” says the mayor, who remembers that the Constitutional Court has taken a year and a half to resolve the non-admission of the resources. “They have taken a year and a half to look the other way. It is a shame, so we will go to Strasbourg to request an amparo that the Spanish justice denies us,” he concludes.

The Supreme Court’s decision, both in substance and form, sparked intense social and political debate.


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