The lawyer who filed the appeal that has led to the modification of the law on the tax on mortgages, Ramón Casero, has argued that there is room to claim compensation from the State for patrimonial responsibility to the holders of mortgages. "If the Regulation (of the tax on property transfers and documented legal acts of 1995) has been declared null and void, this will give rise to the famous retroactivity", has defended the professor of Financial and Tax Law of Icade.
In his opinion, once the regulation was declared null by the Second Chamber of the Supreme Court, "it automatically assumes that there is a path to initiate a compensation procedure for damages for patrimonial responsibility of the State."
Casero is the lawyer of the Municipal Housing Company of Rivas Vaciamadrid, which has achieved that the Supreme Court initially overturned the doctrine that it had maintained for 23 years about who has to pay the tax on Documented Legal Acts (AJD).
In October, the second room of the Supreme Court issued a ruling that stated that it should be the banks that paid the tax, and not the mortgage subscribers. However, at the beginning of November, the third section of the Contentious-Administrative Chamber rectified and considered that it should continue to fall on customers. In any case, the next day the Council of Ministers approved a royal decree law so that finally the banks will assume the payment of that tax as of today.
Although the lawyer sees possible to claim compensation to the State for bad regulation for customers who have paid this tax, recognizes that the resources could be dismissed if the last doctrine expressed by the Supreme is applied, which considers that the client is the taxpayer.
"We will have to read first the sentence of November 6 (which has not yet been made public), but the damage has already been done, since the moment the regulation was declared null and void, damages were incurred," defended during his speech at the round table.
Homemade, that has three judgments in favor of its arguments and three others against, believes that we must continue trying "by extraordinary means" and despite the "narrow judicial route" still available, that the latter be corrected.
In this regard, considers that it has been a matter of "luck" that the second room gave him the reason and argues that partly because the majority of the judges were new and did not contradict themselves if they modified the historical doctrine of the Supreme , which allowed them to issue a judgment at their "most correct" judgment.
That sentence is "right and nothing populist", in his opinion, because they correctly reestablish the doctrine on who should pay the tax, since in Spain they have "23 years with a doctrine caught by the hair that was not correct".
Surcharges for the client
In his opinion, there is no doubt that banks will transfer the cost of this tax to customers, which explains in part why the Government has also decided to determine that it can not be deducted from corporation tax.
"The Government is trying that there is no translation sanctioning or aggravating the deductibility of the tax, but safe translation that will be, to a greater or lesser extent depending on market forces," he said.
In addition, he recalled that until it is signed before the notary the bank can always modify the conditions of the mortgage, provided there is transparency and negotiation between the parties.
For those who are going to negotiate from now on, a mortgage considers that "it will be difficult" to know if the bank has passed on to them in any way that cost.