On 16 October 2018, we woke up to a pleasant surprise learning that the 2nd Section of the 3rd Chamber of the Supreme Court had just made a judgment (rec. 1505/2018), in which, in an unexpected twist to the applicable case law, it ruled in favour of consumers, by considering that the taxable person regarding the tax on legal documents when the document is a public deed of loan for a mortgage guarantee was the mortgage lender, -the banks- and not the borrower -the consumers-.
Furthermore, in this ruling, confirmed by two further rulings of 22 and 23 October (rec. 1523/2018 and rec.1531/2018 respectively and from the same 2nd Chamber), article 68.2 of the regulation on transfer tax and documented legal acts, approved by Royal Decree 828/1995, of 25 May, was annulled on the grounds that the it contained (“in the case of deeds of constitution of a secured loan, the borrower shall be considered the acquirer”) was contrary to the law.
However, the joy was short-lived, as on 5 November 2018, the Administrative Chamber was convened in plenary session to deliberate on this “radical change” in the jurisprudential criterion for the imputation of the tax, so that after two days of intense deliberations and differing positions among the 28 Judges in attendance, the Court of Appeal, by 15 votes to 13, ruled that the “radical change” in the jurisprudential criterion for the imputation of the tax, and after two days of intense deliberations and differing positions among the 28 Judges in attendance, by 15 votes to 13, they decided to reject the appeals and return to the previous criterion, according to which the taxpayer of Stamp Duty on mortgage loans is the borrower, i.e. the client/consumer.
Faced with this situation, and although the content of the Judgment that is being prepared by the 2nd Chamber after the plenary session of November 5th (released on November 6th) is still unknown, consumer associations have already announced that they will try to get the final resolution before the European Court of Justice (CJEU), so that, as happened with the retroactivity of the floor clauses, it will amend what was resolved by our Supreme Court.
At Bufete Salmeron, we are convinced that with the decision of the Plenary of 6 November 2018 -which we do not share at all- there continues to be economic bias caused only to the consumer/client who must assume by obligation the role of taxpayer in the IAJD, being an economically quantifiable and avoidable bias, as it comes from an act imposed unilaterally from which he/she does not obtain benefit.
It is for this reason that, with the support of the 13 dissenting votes, insofar as they are well founded in law, together with the new Royal Decree-Law approved on 8th November by the Government (RDL 17/2018, of 8th November, which modifies the revised text of the Law on the Tax on Property Transfer and Stamp Duty, approved by Royal Legislative Decree 1/1993, of 24 September) which amends Article 29 of the Consolidated Text of the Law on Stamp Duty and Stamp Duty, approved by Royal Legislative Decree 1/1993, of 24 September, in the sense of considering the lender as the taxable person and deleting the aforementioned Article 68. 2 of the Regulation, more sufficient arguments could be given to continue “fighting” and trying to get the bank to return to consumers the amount of the expense incurred in paying this abusive tax with retroactive effects beyond four years, as the action for nullity is not time-barred (article 83 of Royal Legislative Decree 1/2007, of 16 November, which approves the revised text of the General Law for the Defence of Consumers and Users and other complementary laws).
In fact, following the publication of RDL 17/2018, the Court specialising in abusive clauses in Malaga, i.e. Court no. 18 BIS, has recently issued a ruling (no. 942/2018 of 12 November) in which it considers that the payment of this fee should be borne by the entity insofar as the decree approved by the Executive “resolves an interpretative loophole”, so it can also be applied to mortgages taken out prior to its entry into force.
