July 29, 2021

The Supreme is inclined to guarantee that banks pay

The Supreme is inclined to guarantee that banks pay


The Supreme Court (TS) is playing today much more than unbalancing the balance between banks and their customers about who pays the tax on mortgages, which is levied on documented legal acts when a mortgage loan is signed before a notary. The flood of criticism of the institution after suspending the President of the Third Chamber, Luis María Díez Picazo, the effects of the sentence that on October 16th gave back to the criterion maintained by the High Court – by forcing the banking entities, and not the citizens, to pay that tribute – compels to close ranks. This is recognized by sources in the Contentious-Administrative Chamber, who point out that a good number of judges are inclined towards a "pragmatic and possibilist approach", which would result in "not making more changes and leaving things as they are". That is to say, to ratify the "radical turn" in the case law of the TS – as defined by Díez Picazo himself – and to close the debate to when the obligation to make the banks that pay the tax on mortgages takes effect: from of the date of notification of the said judgment (and of two others that were deliberated and failed on the same day) or retroactively. In the latter case, the consulted sources specify, the measure "would be limited to a purely tax aspect, limiting the period to the four previous years, the limitation period".

But in the Third Chamber are clear, add those same sources, that the decision "transcends" the tax on mortgages and also affects, as things stand, the "good name and prestige" of the Supreme. "Some are waiting for our decision to be known to discredit the court, and more with the issue of" procés "», they say in reference to the independentist critics to the change of criterion of the High Court, also demanding a turn in the cause by rebellion against the sovereign leaders. "They have taken advantage of the controversy to sow doubts about the performance of the Supreme Court. If it is not for the independence movement things would have gone more quietly, "they say. That is why it is more necessary than ever, they admit, "not to give more reasons for the controversy".

Even some magistrate who plans to defend today in the Contentious Plenary – which will be made up of 31 judges – that must go back to the previous criterion, maintained by the Supreme Court for the last twenty years, admits that it would surprise him if that position obtained the endorsement of the most. Among other reasons, because some magistrates who defended that thesis have been reconsidered in recent days and would now be closer to ratify the jurisprudential change to safeguard the prestige of the institution. Despite everything, they emphasize, "everything is very open" because "there is no clear approach".

What seems to be more complicated is to unanimously take the decision that finally finally comes to light in the Third Chamber (although it is even possible for the deliberation to go on longer than expected and finally postpone the resolution until tomorrow). "Unanimity will be impossible because those who signed particular votes in those sentences will surely keep them."

The whirlwind jurisprudential that has put against the ropes to the Room of the Contentious of the Supreme Court originated the past 18 October, when the sentence of the Second Section was known that forces the banks to pay the tax of the mortgages. Until then, the High Court had argued that it should be the clients who took charge of that tax (whose cost varies, according to the autonomous community, between 0.5% and 1.5% of the cost of mortgaged housing).

But the Second Section concluded that the beneficiary of the registration of the mortgage is the bank (as you can use it to enforce the signed mortgaged), so they must be those who pay the tax levied that act. However, just 24 hours later, the President of the Third Chamber left in suspense the effects of that resolution and gave the plenary the question that must be resolved today.

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