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Finally, it will be possible to claim the mortgage tax
A roundabout with the IAJD
If we make a timeline, on what has happened in recent months around the Stamp Duty Tax the evolution has been as follows:
- At the beginning of the year 2018 the SC said that the payment of the tax for the constitution of a mortgage should be carried out by the client.
- On 16 October of the same year through the STS 1505/2018 the Supreme Supreme Court changed its criterion establishing that who should make the payment of the tax are the banks and not the customers.
- After the debate arising from the ruling, finally, on November 6 last year they decided that it would return to be the customers who would pay the tax.
- After seeing the final decision of the Supreme Court, the Government considered that legal uncertainty was being generated that affected the entire mortgage market, so it met in Plenary to decide on the matter, taking action on the matter and amending the law. Specifically, it approved on November 8 the Real Decreto-Ley 17/2018 by which banks are obliged to assume the payment of the Stamp Duty Tax (AJD) linked to a mortgage.
New features included in Royal Decree-Law 17/2018 of November 8.
This regulation has a single article that introduces the following modifications:
- Modifies the wording of Article 29 of Real Decreto Legislativo 1/1993, clarifying that «in the case of deeds of loan with mortgage guarantee, the lender shall be considered the taxable person». In other words, it is the bank that will have to pay the tax.
- Add a paragraph to article 45.I.B) which indicates that «deeds of loans with mortgage guarantee in which the borrower is any of the persons or entities included in letter A) above» shall be exempt from the tax.
- Derogates any provision of the same or lower rank that is opposed to the provisions of the RDL.
- It amends the Corporate Income Tax Law establishing that the tax debt of the Stamp Duty Tax will not be fiscally deductible in the Corporate Income Tax.
- It is to be noted that the tax debt of the Stamp Duty Tax will not be fiscally deductible in the Corporate Income Tax.
- It should be noted that the regulatory amendment will apply to taxable events accrued thereafter. It is therefore applicable to mortgages with collateral that are signed after its entry into force.
And what happens with mortgages signed before?
The claim by customers to which the STS 1505/2018 judgment could have given rise is not possible, since the subsequent STS of November 6 that ruled in favor of the banks applies.
However, the possibility of claiming compensation from the State for pecuniary liability to the mortgage holders may be possible. In this case, it had to be demonstrated that an injury has occurred and that there is a causal relationship between the Administration and the damage caused.
In any case, if you have signed a mortgage loan and want to receive advice on your specific case, it is best that you contact a lawyer. He/she will be able to study your case, advise you and inform you on how you can proceed or simply explain how the tax works.
Lawyers at LAWYOU will help you.
At LAWYOU we have lawyers with many years of experience who can help you with your claim or provide you with more information about the legislation currently applicable to these cases. Do not hesitate to contact us to tell us about your case through our email email@example.com or, if you prefer, you can also call us on 602 226 895.