January 19, 2021

The Supreme Court supports that the bank pays the taxes when signing a mortgage

The Supreme Court supports that the bank pays the taxes when signing a mortgage


The Supreme Court has ruled that the person who must pay the tax on legal acts documented in the public deeds of loan with mortgage guarantee is the lender entity, not the one who receives the loan.

In a sentence of October 16, of which Judge Jesus Cudero has been a speaker, the Third Chamber of the Supreme Court (Section Two) modifies its previous jurisprudence and, interpreting the consolidated text of the law on property transfer tax and legal acts documented and its regulation, concludes that the borrower is not the taxpayer of the latter tax in notarial deeds of mortgage-backed loan (as that jurisprudence held) but the entity that provides the corresponding amount.

It takes into account, for this, that the registrable business is the mortgage and that the only interested party in the elevation to public deed and the subsequent registration of those businesses is the lender, who only by means of said registration may exercise the executive and privileged action that derives the mortgage. The sentence annuls an article of the tax regulation (which established that the borrower is the taxpayer) because it is contrary to the law. Specifically, it is article 68.2 of said regulation, approved by Royal Decree 828/1995, of May 25.

The decision has a discrepant private opinion, issued by Judge Dimitry Berberoff, who postulates the maintenance of previous jurisprudence, and another concurrent, Judge Nicolás Maurandi, who considers that the sentence should have influenced the existence of two taxes in the documented legal acts and on the principle of economic capacity provided for in Article 31 of the Constitution.

Thus, the third room of the Supreme Court modifies its previous jurisprudence and interprets the consolidated text of the tax law on property transfers and documented legal acts, and concludes that the borrower is not the taxpayer of this tax, but the entity that lend the money.

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