AT VERY bad times for the legal security in our country, to the point of that exercise today certain professions related to the Law can turn into a real nightmare. One of those moments of maximum uncertainty occurred in all the notaries of Spain last Thursday, October 18, when he met the Judgment 1505/2018 of the 2nd Section of the Hall 3rd (Contentious-Administrative) of the Supreme Court. This judicial pronouncement from consolidated previous case law, considered null and void article 68.2 of the Regulation of the Tax of Patrimonial Transmissions and Documented Legal Acts, which stated that the passive subject of the tax that pays for the creation of a mortgage was the client borrower, considering that the one who should be considered as such, it is the lender’s bank.
Can you imagine the chaos that ensued in the operations already in progress, the people that on that day he signed the mortgage, to the authorised representatives of bank did not know what to expect with operations already approved, in the agencies that had to budget, and in the notaries that we should advise them to everyone. The image that did it was sad and unfortunate, and the professionals-once again – we were not able to convey the feeling that basically we are paid: for providing security in economic transactions and real estate.
What follows here is intended to be a serious comment, tight and professional on this matter, and not an eulogy on the use of social or alternative of the Right is conditioned by that postureo buenista that dominates us, and that is reaching to our highest Courts. Therefore, you should take into account that the Judgment was not limited to interpreting a standard, doubtful, but that the rule was clear and that, in addition, it is the umpteenth time that our Supreme Court changes its opinion on this topic.
To give you an idea fairly accurate, the thing has been as well: the Hall 3rd of the TS, which is in charge of resolving the tax issues, had a consolidated case law stating that the passive subject of the tax is the customer-debtor, and that the article 68.2 of the Regulation of the Tax so declared is in accordance with Law. Room 1st of the TS, which deals with secular issues and the judgment on the unfair character of terms mortgage, stated in 2015 that the taxpayer should be the lender, considering abusive the clause in scripture that ascribes the expenses to the debtor, giving rise to many legal claims that are not always in favor of the debtors. The same Room 1st changed the criteria this year and 2018, stating that he was in agreement with the Hall 3rd on the passive subject must be the debtor. But in relation to the fixed fee of the tax (the ring of the leaves of writing and the copies, which are a few euros) said that this should be shared between the parties.
The new Sentence of the Room 3rd, that now mentioned, corrects your repeated above criteria and declare that the taxpayer should be the lender bank (without distinguishing between fixed fee and variable), and declares the nullity of the art. 68.2 of the Regulation as contrary to the new interpretation of the Law. In short, it reproached to the Room 1st does not follow the criteria of the Room 3rd, and when the 1st what follows, it turns out that the 3rd change their criterion for making the Room 1st on the year 2015. Is all this a reflection of a Court seriously? Who can provide appropriate advice to their clients in these conditions?
To better understand the mess in which we move, you should also know other ingredients of this explosive cocktail. On the one hand, that all of this is surprisingly pending the meeting of the Plenary of the Chamber itself 3rd. On the other, that the procedure which has given rise to this last Sentence the Hall 3rd of the TS was not promoted by a poor particular mortgaged, but by a promoter of a public nature, the Empresa Municipal de la Vivienda de Rivas Vaciamadrid, so it will be this, and many other promoters, the main benefit of the tax savings. And on the other hand, that the arguments for the judgement are extremely forced, almost bordering on populism court, which has put aptly manifest the particular vote of one of the Judges: the sentence goes on to say that when there is a mortgage loan, although civilly it is considered that the loan is the legal business and the mortgage or guarantee the accessory (is so from the background to romans and germanic and the Mortgage Law of 1861), for tax purposes should be the other way around, considered main mortgage and accessory to the loan.
This argument sounds certainly twisted, and little consistent with the general character of the Civil Law, which serves as the basis of interpretation to the other branches of the Law, but is intended to put an artificial emphasis of the business on the mortgage and thus be able to attribute the cost of taxation to the bank. But since where the judgment is devoted is when he says that the only one interested in the mortgage deed before a notary and be registered in the registry of the property is the bank, since the debtor that gives the same, and that’s why the bank is the one that must pay the tax it generates. With all due respect, this argument is so bizarre as to defend that the only ones interested in that there are workshops that are mechanical, or that there are hospitals are the doctors, nurses and caretakers, because you claim to have a salary to live. Of face to the gallery, maybe it will sound very good, but it is clear that the bank will not be able to document and record properly your loan will not lend you a euro to anyone. For this reason alone we must understand that the primary stakeholder in all of this is the client debtor. How do you like your honours will agree to the mortgage loans between the individuals and the banks? Do it with a smile and a handshake?
two Other important things should also be taken into account to end you form a full opinion. The first, that the mortgage credit is essential for the economy of a country, because it secures to any person the enjoyment right away of a house you can’t afford to tocateja, making it easy for the deferred payment over a long period of time and, currently, in a very good condition of interest and with total transparency. Only by such a social function, the mortgages should be much more respected by our courts.
Shake indiscriminately to the banks, even though it is popular since there have been abusive situations in certain financial products such as structured, preferential, or other well-known -fair and properly corrected judicially – only get a double effect: in Spain only be a couple of banks, so that desapareappear any hint of competition which favors the consumer, and that they are much more expensive and restrictive. And if what is in fashion is to chop sticks to mortgage credit, to see how many people can afford to buy in Spain a home cash or through a policy of personal loan, to be returned within a maximum period of five or six years. The second important thing is that, forced to make populism, constitute a mortgage there should be absolutely no tax. Already paid by the seller to sell (plusvalia municipal) and the buyer to buy (IVA or ITP), and both are earning the same day you sign the mortgage. So we avoid discussions of the byzantine and insecurities soaring.
Alvaro Delgado truyols families is a notary.
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