The decision adopted by the Supreme Court last Thursday to hold the bank, and not the client, responsible for the tax that is paid by the notary deeds of the mortgages, generated, almost immediately, strong falls in stock market of the banks. Barely 24 hours later, this Friday at noon, the banks returned to trading higher. In the middle was an initiative of which the consulted sources do not remember precedents: that a plenary session be convened to review the criterion just established by the Supreme.
It is also unusual the explanation given by the president of the room to justify his intervention: the economic consequences of the sentence on Thursday. Because that is what Díez-Picazo claims to open the door to changing the decision to charge the banks with the so-called tax of documented legal acts. The chairman of the Contentious-Administrative Chamber issued a public note stating that the criterion established by the Second Section of that chamber, which dictated the ruling, "represents a radical change in the criterion" that maintained the Supreme and, due to its "enormous economic and social impact," Díez-Picazo believes that it required an "urgent" action.
The measure agreed by the president has two points. The first one, to annul all the indications already foreseen on resources related to who has to pay the tax by the public deeds of the mortgages. It was assumed that, after Thursday's ruling, the court would apply the new criterion to the cases it had yet to review. By annulling the accusations, Díez-Picazo prevents the new doctrine from spreading.
The second point of the president's note is to raise to the plenary session of the courtroom the knowledge of any of those appeals that have already reached the Supreme Court "in order to decide whether said jurisprudential shift should be confirmed or not." That is, the high court does not rule out reversing the newly established criteria and that has generated an earthquake in banking.
The consulted sources do not remember precedents for an initiative like the adopted one this Friday by the president of the Room of the Contentious-Administrative.
The decision caused perplexity in the Supreme Court and in the legal world. One of the most critical reactions came from the association Judges and Judges for Democracy, to which Jesus Cudero belongs, the rapporteur of the judgment questioned. "It is intolerable that a ruling from the third room of the Supreme Court looking out for the interests of the citizenry will be reviewed for the interests of the bank," he posted on his Twitter account.
Call for full
Thursday's ruling came from one of the sections of the Contentious Chamber, the second section, which is the one that reviews cases related to taxes. Some in the high court already questioned that day that a decision of this caliber would not have been taken from the beginning to the plenary session, formed by the 31 magistrates that make up the room. But Díez-Picazo, who as president has the power to raise the issues he considers relevant to the plenary session, left it in the hands of a tribunal made up of six magistrates. Five of them signed the new doctrine and decided that it is the bank that takes charge of the tax. The sixth made a private vote in the opposite direction.
Sources from the environment of the president of the room say that he learned from the press that the second section had changed the criteria that the Supreme Court had up to now on who should pay the tribute of legal acts documented. Díez-Picazo, according to these sources, did know that this section had on the table an appeal filed by the municipal housing company of Rivas-Vaciamadrid against a ruling of the Superior Court of Justice of Madrid that considered that corresponded to the client of the mortgage pay that tax. But, according to the version of their environment, the six magistrates who deliberated on this matter did not inform him that they were considering changing the established criteria. If it had known, Díez-Picazo would have called the plenary session so that this modification would be supported by the 31 magistrates of the room instead of only by the six who participated in the debate and signed the sentence, of which Judge Jesús Cudero was the speaker. . According to sources close to this judge, Cudero was "devastated" Friday by the president's decision.
Other sources consulted reject Díez-Picazo's explanation and warn that the Contentious Court takes decisions on a daily basis that, like this one, imply changes of criteria in the interpretation of laws and not all magistrates are usually brought together.
The plenary session announced on Friday still has no date, but the sources consulted assure that it will be held "as soon as possible". The courtroom will not review Thursday's ruling, but rather the criteria it established that it is the bank that has to pay the mortgage tax. A criterion that, supposedly, had to be applied to the loans that were signed from now on and that, according to the experts, also implied returning the money of this tax to who had paid it in the last four years (the time it takes prescribe the payment of taxes).
Sources consulted warn of the legal uncertainty created by the initiative of Díez-Picazo and advance that it is very difficult now to modify the criteria established by the ruling on Thursday. Because that ruling is already firm and has annulled an article of the regulation that regulates the tax that expressly stated that it was the client who had to pay that tribute.
The full room, according to the legal sources consulted, can not reverse that decision and return the annulled article to the regulation. The only possibility would be to present an incident of nullity of that sentence for violation of fundamental rights, but these sources admit that it would be very difficult to justify.
Retroactivity: key to the review
Other sources indicate that if the plenary opts to keep the bank paying the tax, the president of the room could try to decide on the retroactivity of that decision (if it affects mortgages of the past or only the new ones), that was one of the great doubts left by Thursday's ruling. If the Supreme Court decides that its new criterion can only be applied to mortgages that are signed from now on, this would greatly alleviate the economic impact of the measure for banking, but it would also prevent thousands of mortgaged people from claiming for the tax that already They have paid.
A similar decision was taken by the high court when it annulled the ground clauses if the contracts were abusive but for the loans signed as of May 2013. The Court of Justice of the European Union then forced him to rectify and urge the entities to return everything collected from the beginning of the application of these conditions if the contracts contained it.
The threat of rectification of the president of the Chamber of Contentious-Administrative or Third Chamber comes to enlarge the confusion that the Supreme Court itself has created in recent months on the tax for the writing of mortgages. Because the ruling that last Thursday established that this tax has to be paid by the bank already meant a rectification on the criterion that had been set by the high court last February, when the plenary session of the Civil Court endorsed that it was the client who paid it.
However, by then, the issue was also on the table of the Third Chamber, which is in charge of resolving doubts about tax legislation and that until now had maintained the same criteria set by the Civil Chamber in February. The Contentious Court admitted an appeal by the municipal housing company of Rivas-Vaciamadrid against a ruling of the Superior Court of Justice of the Community, which considered that the tax was borne by the client of the mortgage. The matter corresponded to the second section of this room, which is the expert section on tax matters. And its magistrates chose to change the established criteria. In the judgment notified on Thursday, they recall that the fact that the Civil Chamber had ruled a few months ago in the opposite direction should not limit its power to interpret the laws and tax regulations.
Now it will be the 31 magistrates of the Contentious who decide if they maintain that criterion or change it again. Some sources question that judges who are not tax experts can modify the decision adopted by the top tax specialists.