The sentence issued last week by the Room of the Contentious-Administrative that attributes to the bank the responsibility to pay the tax of the public deeds of the mortgages it tried to unify the doctrine of the Supreme Court on this subject. But nevertheless, the subsequent decision of the president of that room, Luis Díez-Picazo, to review the newly established thesis has generated the opposite effect to that sought and has returned the confusion to legal and financial operators. What follows is the chronological account of the changes in legal criteria to which this tax has been subjected in recent years.
May 29, 1995. It is necessary to go back 23 years to place the regulations with which judges have dictated until now. That day approved the Regulation of Transfer Tax and Documented Legal Acts, which in Article 68 states that in the deeds of mortgages the tax must be paid by the person requesting the loan. That precept came to clarify legislation that, according to the experts consulted, was somewhat ambiguous. However, Article 68 of the regulation came years later to the Constitutional Court because in the High Court of Justice of Catalonia doubts were raised about its legality. The Constitutional endorsed the article in two cars of January and May 2005.
Since that regulation was approved, the Supreme Court established a clear jurisprudence that attributed the responsibility of paying the mortgage tax to the person who signs the loan. There are numerous judgments in that sense in the Contentious-Administrative Chamber (Third Chamber of the High Court). For its part, the Civil Chamber (which resolves cases between private individuals and banking entities) issued a resolution in September 2000 admitting that it was up to the taxpayer to determine who is the taxpayer (which should to pay it) is to the Room of the Contentious-Administrative, reason why the jurisprudence fixed by this one was followed.
December 23, 2015. The high court kept its doctrine intact for 20 years. But in December 2015 the Civil Chamber, where litigation began to accumulate between customers and banks after the bursting of the housing bubble, gives a twist and resolves that it is the entity that has to pay the tax on the mortgage. To reach this conclusion, the magistrates do not take into account the regulation that stated otherwise and determine that the financial entity is "the principal interested in the registration of the mortgage guarantee", so it must assume that tax.
From this sentence, the resolutions of the Civil Chamber and the Contentious Court begin to be contradictory, which generates a legal uncertainty of which lawyers, consumers and banks complain.
January 15, 2018 The Contentious-Administrative Chamber, which is responsible for interpreting the tax legislation, decides to admit an appeal from the municipal housing company of Rivas-Vaciamadrid against a ruling of the superior court of the Community that attributes the payment of the tax to the client. . In its appeal, the City Council alludes to the jurisprudence in favor of its thesis of the Civil Chamber and asks the court to clarify its doctrine. That appeal is admitted for processing by a room headed by Díez-Picazo, the president of the Contentious. He is the first to sign the car arguing the need to study the case because the change of criteria of the civil judges "has opened a doctrinal debate that requires a new response" by the Supreme Court.
That car already gives account of the possibility of changing the criterion that until then had maintained the room. It is, say the judges, to "clarify, clarify, clarify, review or ratify existing jurisprudential doctrine." In that session, Díez-Picazo could have decided to raise the case directly to the plenary so that it could be debated by the 31 magistrates of the courtroom. But the president did not consider it necessary and was assigned to the second section, the tax expert. Within this section, the matter fell by turn of distribution in the magistrate Jesus Cudero.
February 28, 2018 Only a month after the Litigation Chamber set in motion the process to clarify the doctrine on the mortgage tax, the president of the Civil Chamber, aware that his judges had established a different criterion in the last three years. maintained by the Supreme Court, convened a plenary session to study the matter. The judges came to the conclusion that it was the Litigation Room that marked the way. That is, they returned to the original thesis that the tribute should be paid by the person who asks for the loan. This decision, allegedly settled the discrepancies between the rooms.
September. The magistrates of the second section of the Contentious are aware of the rectification of their colleagues in the Civil Chamber, but they decide to continue with the appeal by understanding that it is up to them to whom the doctrine must be fixed. They begin to deliberate after the summer and, according to the consulted sources, the president of the section, Nicolás Maurandi, dispatches several times with Díez-Picazo and tells him that the debate points towards a possible change of doctrine. Despite this, according to these sources, neither Díez-Picazo proposes to take the matter to plenary session nor do the magistrates ask him to do so.
October 18. Last Thursday, the second section of the Contentious Chamber notifies the judgment in which it annuls Article 68 of the tax regulation, gives the reason to Rivas-Vaciamadrid and establishes that the bank must pay the tax. That day, the same judges dictate two other sentences with similar content. Díez-Picazo is in Valencia in a few days with other members of the room and the sources consulted indicate that nobody warned him that the change of criteria had been consummated. A few minutes after the resolution is known, banks begin to fall on the stock market.
October 19. A day later, the president of the Chamber, irritated by what happened according to the sources consulted, made an unusual decision: he suspended the pending resources on the mortgage tax and announced a plenary session to review the new criterion. The session will be on November 5. That day the Supreme Court has the task of returning the legal security to the mortgage tax.
All listed banks have recorded sharp declines since last Thursday, when the Supreme determined that the entities had to pay the tax on mortgages, a decision that on Friday left in the air. In the last four sessions, until yesterday, Sabadell lost 14.2% of its value and Bankia lost 9.26%. It is followed by CaixaBank, with a decrease of 9.18%, while Bankinter fell by 8.53%, Santander by 5.16% and 4.5% by BBVA. On the other hand, the chief economist for Spain of BBVA Research, Miguel Cardoso, said yesterday that the judicial uncertainty will have a negative effect in the short term "and that is negative", although he said that it is still premature to evaluate its consequences.
In the judicial field, the president of the Superior Court of Justice of Catalonia (TSJC), Jesus Maria Barrientos, commented yesterday that the courts are delaying judgments on mortgages waiting to know the decision of the Supreme Court. And he said there may be a "flood" of demands that cause a "understandable general alarm."
The Minister of Defense, Margarita Robles, affirmed that the decision of the president of the Third Chamber of the Contentious-administrative Supreme Court, Luis María Díez-Picazo, seems "unusual" and said that "it is not good", because "it can break the image of legal security. " We can react with a complaint against Díez-Picazo for a possible crime of judicial trespass to raise the ruling of the second section to the House of Representatives.