Barely 24 hours after the Supreme Court (TS) recitificase its jurisprudence on the payment of tax on mortgages, determining that it must be the bank and not the mortgaged those who have to pay the tribute, the president of the Contentious-Administrative Chamber of the High Court has agreed "urgently" to the "enormous economic and social impact", suspend that "radical change in the jurisprudential criterion" (which means that one million mortgaged can claim the amount of these taxes) and that it is the Plenary of the Chamber that decides "whether this jurisprudential shift should be or not confirmed" .
Until that moment, the President of the Chamber, Luis María Díez-Picazo, annuls all the accusations to pronounce on similar resources that could benefit from this sudden change of criteria.
A shift in jurisprudence
The Supreme Court overturned its jurisprudence on the payment of the tax on mortgages by determining in a judgment of last Tuesday, notified yesterday, that who must pay the Tax on Documented Legal Acts (AJD) is the bank, and not the mortgaged, as he defended so far (the last time, in a resolution of last February). The measure would benefit citizens who have signed a mortgage loan in the last four years, fiscal years not prescribed, which may request the refund of the amount disbursed for this concept. The banking bosses assured yesterday that the sentence refers to a tax issue and that the credit entities have not received any amount from their clients for the concept. They demand greater legal security and clear rules.
According to INE data, between 2014 and 2017 1,043,331 mortgages on homes were signed in Spain, for an overall amount of 114,931 million euros. Taking into account that the Stamp Duty Tax is a charge between 0.5% and 1.5% of the amount according to the autonomous community in which it is signed, the amount to claim is 1,150 million euros. The sentence fell badly on the stock market. The eight listed banks lost 5,014 million euros in value as a whole.
The decision of the Third Chamber of the Supreme Court (Supreme Court), of which Judge Jesús Cudero has been a speaker, was conclusive: the one that benefits from the notarial document engraved with the aforementioned tax – in which the conditions of the mortgage are reflected – it is the bank, and not the person or persons to whom the loan is granted, so it must be the entity that assumes the payment thereof. "Only he is interested in the registration of the mortgage (the determining element of the tax subject that we analyze), because it lacks any effectiveness without the incorporation of the title to the Land Registry," defends the court. That is to say, for the Supreme Court it is crucial that without this duly registered notarial document the lender entity could not complain about a possible breach, for which reason it understands that it must be the one that pays its cost as it fundamentally benefits them.
"We do not have the slightest doubt," said the magistrates, "that the beneficiary of the document in question is none other than the mortgagee, since he (and he alone) is entitled to exercise the (privileged) actions that the order offers to the holders of registered rights ».
Although the Supreme Court recognized the "solidity of a good part of the arguments" on which the previous jurisprudence was based, the Chamber said that it must "correct" it by understanding that the party liable to pay the tax is the mortgagee, "in whose interest it documents in a public instrument the loan that has been granted and the mortgage that has been constituted as a guarantee of its return ". Thus, resolved the appeal filed by the Municipal Housing Company (EMV) of Rivas Vaciamadrid against a ruling of the Supreme Court of Madrid which endorsed that corresponds to the creditor, in this case the EMV of the Madrid municipality, take charge of the payment of the tax.
The High Court reinterpreted the revised text of the Law on Transfer Tax and Stamp Duty and Article 68.2 of its regulations.