The differences of opinion between the magistrates of the contentious-administrative Supreme Court has prevented this Monday that the plenary of this room put an end to the doubts about who should pay the tax of legal acts documented. The magistrates were meeting for eight hours, five in the morning session and three in the afternoon session, but they could not reach an agreement.
The morning session was used almost entirely to decide whether the three resources that were to be studied to set the final criterion should be admitted for processing. According to sources consulted, some magistrates maintained that they had to be rejected because the high court has recently taken a decision in this regard: the one adopted on October 18 in the sentence that established that the bank should pay it. The president put this issue to a vote and the majority voted in favor of admitting the proceeding.
After a recess to eat, the plenary session focused in the afternoon on discussing the merits of the matter: who is the taxpayer (who must pay) of the tax on legal acts documented. They were summoned to the full 31 magistrates, but finally they have only come 28. Rafael Fernández Valverde has been missing because he was traveling; Segundo Menéndez, for being a member of the Central Electoral Board, a condition that prevents him from participating in the deliberations; and Octavio Herrero, has moved away because he lives in Rivas and is guarantor of his children in a house promoted by the municipal housing company, which acts as a recurrent in the three resources on which it was necessary to deliberate.
Differences between the speakers
The two magistrates who acted as rapporteurs (those who have studied the case in detail and propose a solution) defended that the new criterion that imputes the tribute to the banks be maintained. It was foreseeable because both (the president of the second section, Nicolás Maurandi, and Francisco José Navarro Sanchís) belong to the second section, which dictated the sentence that marked the new criterion on October 18, and they subscribed that decision. In his first speech on Monday, Maurandi was in favor of leaving written in the ruling that banks have to assume the tax on mortgages from now and with a retroactivity of four years, the time it takes to prescribe the tributes.
Navarro Sanchís, for his part, refused to set this retroactivity because, in his opinion, all taxes can be claimed for four years and it is not for the Supreme Court to clarify this aspect.
The question of retroactivity is central if the judgment confirms that the bank has to pay. The sources consulted indicate that there is little doubt about the fact that the payment of the tax can be claimed for four years to the Treasury. The tribute of documented legal acts is managed by the autonomous communities so the return should be requested before them. Some communities have already shown their intention to return the money to the citizen if the Supreme establishes a retroactivity of four years, but then they would try to claim it from the banks. There may be a problem because the entities They will argue that when the mortgage was signed, article 95 of the regulations that expressly stated that the citizen should pay it was in force. This article was annulled by the sentence of the Supreme Court of October 18 and that nullity is already firm, it can not be revoked.
Claim before communities or Treasury
If a community refuses to refund the money, the client would have to go back to court. Here two options would be opened, according to the sources consulted. The first, go through the contentious-administrative way to claim the tax to the Treasury or the communities.
This path prescribes at four years, counted from the day of payment of the tax. The second way is the civil one, in which the client can claim the bank if the tax was included in a loan clause that specified that all the expenses and taxes generated by the formalization of the mortgage, including that of documented legal acts, had that the client pays for them.
The Civil Chamber has suspended the resources on this tax pending the full mark the final criterion, so it is taken for granted that its judges will apply that criterion from now on and would oblige the banks to return the money from this tax on customers. The civil procedure does not prescribe so, in principle, all mortgaged whose contract included a clause that obliged him to pay this tax could claim.