The Supreme Court has clarified that who must pay the tax on legal acts documented in the public deeds of mortgage loan is the lender, not who receives the loan.
The ruling is intended to establish definitive jurisprudence on a matter in which the high court itself has been issuing contradictory rulings for years. Between 2001 and 2015, all of its rulings determined that it was the client who had to pay the tax under tax law. But in 2015, the civil chamber changed its criteria and considered it abusive under the consumer protection law. In March 2018, on the other hand, the Supreme Court rectified this new vision and determined once again that the mortgaged had to pay it off. But the Contentious-Administrative Chamber has now again fixed that the financial entity pay it.
It takes into account, for this, that the registered business is the mortgage and that the only interested party in the notarization and subsequent registration of those businesses is the lender, which only through such registration can exercise the executive and privileged action deriving from the mortgage.
The arguments of the judgement
The rapporteur argues that the legal act we are dealing with is, however, clearly complex, as that tax unit includes a contract translational domain (the mutual loan, in which the borrower acquires ownership of the thing borrowed and has to return another of the same kind and quality) and a legal business accessory, guarantee and registration (the mortgage).
In view of this situation, it determines that two acquirers can be identified: the borrower in terms of the transfer business of the sum that is delivered and the mortgagee in respect of the mortgage (since in this second business only the creditor properly acquires - enforceable rights against the debtor).
The hypothesis that the purchaser and the taxpayer are the borrower has three solid arguments in its favor, which are derived from the jurisprudence of the Supreme Court. On the one hand, the mortgage -as a real right of guarantee that it is- is ancillary to the main business, the loan in our case, so that in the interpretation of the precepts must prevail, in all senses, the main part of the complex business and displace the ancillary part.
Secondly, the rewritten text of the Tax Law itself expressly refers to this type of complex business, stating that "the constitution of the mortgage rights in loan guarantee will be taxed exclusively as a loan".
And finally, the Regulation of the tax, in relation to the modality Documented Legal Acts, literally states (article 68.2) that, for the purpose of determining the taxpayer of the tax, "in the deeds of constitution of the loan with guarantee, the borrower shall be considered the acquirer", an expression (which does not appear in the law) whose inclusion in the regulatory norm has been qualified by our jurisprudence as "of undoubted interpretative value", without any objection from the point of view of its conformity to the law.
The judgment therefore annuls an article of the Tax Regulation (which established that the borrower is the taxpayer of the tax) as being contrary to the law. Specifically, this is Article 68.2 of that Regulation, approved by Royal Decree 828/1995, of 25 May.
Recovering the tax
The ruling opens the door for not only the consumer to be able to claim for abuse of the mortgage clause, but also for companies and self-employed persons who have constituted a mortgage to be able to do so by considering the article of the tax regulation to be illegal. The complaint process, however, can be arduous for mortgage holders. Banks disregard their refund on the grounds that they have not collected the tax.